Thursday 14 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
Quinte-Saint Lawrence Building and Construction Trades Council
Mr John Telford
OPSEU Kingston Area Council
Mr Gavin Anderson
Service Employees International Union, Local 183
Ms Laura McWaters
Employers' Advocacy Council, Peterborough and Ottawa chapters
Dr Roger Rickwood
Mrs Sherri Helmka
Kingston and District Labour Council
Ms Elizabeth Jones
Mr Peter Boyle
Mr John Cairns
Ms Evelyn King; Mrs Beate Wildraut; Miss Nancy Wildraut
Canadian Auto Workers, Local 222
Mr Jim Freeman
Mr Larry O'Connor
United Brotherhood of Carpenters and Joiners, Local 93
Mr Sean McKenny
Mr Doug Perrault
Northumberland Community Legal Centre
Workers' Compensation Clinic Advocacy Group East
Mr Garth Dee
Mr Gary Stein
Federally Regulated Transportation and Communications Employers
Mr Curtis McDonnell
Ontario Restaurant Association
Mr Paul Oliver
Kingston Construction Association
Mr Tony Pascoal
Quinte Learning Centre Ltd; Skills Network
Mr David Scrymgeour
Ms Jan Rockett-Ulicki
Ontario Medical Association, Anaesthetic and Chronic Pain Sections
Dr Ellen Thompson
Peterborough and District Labour Council
Mr Thomas Veitch
SD&G Resource Centre for Injured Workers
Ontario Network of Injured Workers Groups
Mrs Beate Wildraut
Mr Terry Randall
Mr Karl Crevar
Ontario Masonry Contractors' Association
Mr John Blair
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 Jim Brown (Scarborough West / -Ouest PC)
Mr John Gerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mr Richard Patten (Ottawa Centre / -Centre L)
Mr E. J. Douglas Rollins (Quinte PC)
Clerk / Greffière
Ms Donna Bryce
Staff / Personnel
Mr Ray McLellan, research officer,
Legislative Research Service
The committee met at 0846 in the Holiday Inn, Kingston.
WORKERS' COMPENSATION REFORM ACT, 1996 / LOI DE 1996 PORTANT RÉFORME DE LA LOI SUR LES ACCIDENTS DU TRAVAIL
Consideration of Bill 99, An Act to secure the financial stability of the compensation system for injured workers, to promote the prevention of injury and disease in Ontario workplaces and to revise the Workers' Compensation Act and make related amendments to other Acts / Projet de loi 99, Loi assurant la stabilité financière du régime d'indemnisation des travailleurs blessés, favorisant la prévention des lésions et des maladies dans les lieux de travail en Ontario et révisant la Loi sur les accidents du travail et apportant des modifications connexes à d'autres lois.
The Chair (Mrs Brenda Elliott): Good morning, ladies and gentlemen. The standing committee on resources development is called to order, listening to presentations on Bill 99. We are pleased to be here in Kingston this morning.
Mr David Christopherson (Hamilton Centre): On a point of order, Chair: As I've done in every community that we've been in, as few as they are, I would like to again place a motion for the benefit of those who are here. The motion has already been formally voted against and lost, so the Chair, and rightly so, will not allow that motion to be placed.
However, the rules do allow a request for unanimous consent. That means we would set aside the rules and that would then make the motion in order and allow a vote to be taken. To do that, we need the support of the government members. All the opposition members have been on side. Yesterday, we got to the point where there was only one member who had the audacity to formally put his name forward and say he was opposed, and that was Gary Stewart out of Peterborough.
I would hope the government members have had an opportunity to reflect on what they've heard about the damage Bill 99 is doing to the working people of this province and would therefore, on behalf of the injured workers in their ridings and their communities, be prepared to give unanimous consent to allow me to place a motion that would have us recommend to the government that they open up these hearings, extend the hearings and allow the injured workers of Ontario to be heard. Therefore, Madam Chair, I ask for unanimous consent to place such a motion before this committee.
The Chair: Is there unanimous consent? There is not unanimous consent.
Mr Christopherson: May I ask who's opposed?
The Chair: No, there's no provision for that.
There is not unanimous consent so we'll move forward, asking our first presenters to come up.
The Chair: Order, please.
QUINTE-ST LAWRENCE BUILDING AND CONSTRUCTION TRADES COUNCIL
The Chair: We call our first presenters, please, representatives from the Quinte-St Lawrence Building and Construction Trades Council. Are the present? Would you please take your seat at the table. Good morning, sir, and welcome. Please introduce yourself for the Hansard record.
Mr John Telford: I've done this before. I don't need to be coached through it.
The Chair: All right. That's fine. You know you have 20 minutes then.
Mr Telford: I didn't just fall off the truck.
First of all, my name is John Telford. I'm the president of the Quinte-St Lawrence Building and Construction Trades Council, representing roughly 3,000 unionized construction people, covering an area from Belleville to as far as Cornwall in the east.
I feel a little bit awkward sitting here today. I spent some time yesterday preparing a document and going through my documents and I guess I'm going to speak on technical issues concerning the bill. But this morning at the Legion I talked to some people and I've heard some people speak here this morning, and these people are talking out of their hearts and their souls. If you never remember one word I say here today, please remember what these people have said.
We're an affiliate of the Provincial Building and Construction Trades Council of Ontario, representing approximately 100,000 unionized construction workers. Our members perform work in the building construction industry, such as erection, repair, alteration, maintenance, demolition, as well as the manufacture, assembly, fabrication and handling of construction materials.
We're dependent on workers' compensation. We work in a very dangerous field, as dangerous as police officers, firefighters or anybody else out there. We don't dispatch our people from union halls to have them be hurt. We strive hard for safety. Our members are taught safety. Our fair contractors, and we do have some fair contractors, strive for safety. We don't send our people to work to come home injured. We like them to go to work, work hard, get paid a decent wage, and come home healthy, the same way they left at 8 that morning.
Workers' compensation was formed. There are three basic concepts to workers' compensation: Workers must be compensated for lost earnings as a result of work-related injuries and diseases; workers would relinquish the right to sue for workplace injuries if employers would fund no-fault compensation systems, which we have in place today, which I hope we're going to have in place after today; and the funding would be done on a collective system so that no one employer would be hurt by a tragic injury to a worker.
It was a fair system. It seemed to have worked. There's a lot of bureaucracy in it but we could get through the system, we could get some support for our workers, sometimes limited, sometimes unfair. It's going to get harder with this bill.
The first area I'd like to touch on is your notice of accident. Previous to this bill, a worker could notify his employer if there was an accident; the employer could notify WCB or a physician could notify WCB. After you people ram this bill down our throat, the employee will be the one who notifies the WCB of the injury, but unfortunately he's got to get the forms from his employer, who has the opportunity to coerce him, threaten him or use whatever means he has to deter that claim from going to WCB. And let's not forget the economic times this province is in right now. It's hard enough to get a job; there are not going to be too many people in this province who jeopardize their job by going against their employer. They're going to suffer through it, they're going to put up with the pain, and ultimately it's going to end up killing them and destroying their families.
More bureaucracy, more forms to fill out: In my particular trade, some of our people have problems with filling out forms, language problems. Every nationality in the world probably works in the construction industry in Ontario. What language are the forms going to be in? Where are the people going to get help to fill out the forms? God forbid that the form be filled out incorrectly, because we know where that ends up now at WCB.
There are too many injuries out there that I don't believe WCB is going to recognize in the future. There were some things touched on this morning by speakers either here or over at the Legion, but I think it was at the Legion:
Injuries not directly attributed to one accident. Asbestosis might be one you could think of.
Back problems. In my particular industry they are very prevalent, because over 25 or 30 years in the construction industry there's a lot of wear and tear on your back.
With the time frames in Bill 99, are we still going to be able to go back for injuries that are cumulative? Are we going to be able to get injuries for asbestosis where a man was exposed to asbestos in 1950? I don't think we are. We can't get them now under the bill. I personally have done four asbestosis claims in my local. I haven't had one take less than two years. Out of four, I've had one person who lived long enough to see the cheque.
You're proposing to cut the compensation to 85% from the 90% it's at now. I assume that's a cost-saver to you. It must be. For what other reason would you want to do it? It's a cost-saver to you. I think, somewhere in the feeble mind of whoever put this piece of legislation together, they thought the 5% reduction was going to force people back to work. That's again taking advantage of people's personal status, how their income is. Maybe they're going to be forced back to work because they need that extra money. You're going to get them down to 85% this year, 80% next year and 75% the year after, just like unemployment insurance is doing.
You people have lost sight of the reality that these people are hurt. They cannot go back to work in some cases, not that they don't want to go back to work; they're physically incapable of participating in the workforce.
In my particular trade, the guy will go back to work for monetary reasons. He's got to; he can't live on what you're going to give him now. So he goes back to work and one of my members is working alongside of him. He can't perform his duties. He has another accident, further hurts himself, and the guy or lady who's working with him is hurt as well.
We don't all work in offices. We work in very dangerous situations in the construction industry. We have to depend on the people we're working with, that they have the ability to perform the tasks we're being asked to do. As Mr Gerretsen brought up, I'd like to see in hard-dollar numbers what this 5% is going to save. Is it something like your tax break that we got? I think I got $37. I don't know what I'm going to do with all of it.
The return-to-work policy in 99 is non-existent for the construction industry. It never has been existent for us. We don't work for people for five or six years; the average construction worker works for a job five and a half months in this province. So your guidelines and stipulations are not going to help any injured construction worker. We would ask in the construction industry that there be another paragraph put in to cover us because of our unique work situation. I suppose that for people like the Steelworkers and some of the other unions involved, where they have long-term relationships with their employer, these things are important. From reading it, as I said, I don't have a lot of insight into it because it really doesn't affect what I've done for 25 years, but I'm sure someone's going to get up and have some concerns about the return-to-work clauses.
Your "suitable" employment: That's a good one. I had a good chuckle when I was reading that one yesterday -- "suitable" rather than "suitable and available." Well, I'm suitable for a job but the job's not there; you still want to reduce my wages because I would be suitable if the job was there. I'm as confused as hell about that one. You say I'm suitable to work but I can't get that job because that job doesn't exist, but you want to knock off my compensation by $7 or $8 an hour for some fictitious job that I'll never have. Where's the rationale in that? I don't have a problem with "suitable" if I'm suitable and you get me the job or you show me where that job is that I can work at and try to supplement my income. As everybody in this room knows, there's not a big abundance of spare jobs in Ontario, and there are even fewer job opportunities for somebody who's on a WCB claim.
Light duty: That's another good one. I've been a business manager for nine years in the local union. Every time one of my guys gets hurt, the contractor finds light duty. In nine years, I've never had one phone call from a contractor asking me for two pipefitters for light duty -- never had one. I'm sure one is going to come up one of these days. I know it is, because every time one of my guys gets hurt, light duties fall right out of the air; there are all kinds of them. I think it's because they don't want them on WCB, but with only half my grade 12, I really don't know; I couldn't comment too much on that.
I don't want to take up a lot of your time, because there are a lot of people here who, as I alluded to before, have possibly some gut-wrenching statements. I'm going to stay and listen to them. I hope you people listen too.
Failure to cooperate: I like that one too. Who deems that I'm not cooperating? I guess it's WCB that's going to tell me I'm not cooperating. Construction workers have always been thought of at WCB as uncooperative. We take about five, six, seven years of our life to learn a trade that we'd like to work at for the rest of our lives, and because we get hurt and WCB insists we shift our whole lifestyle, we become uncooperative. That's what I see in it. Under the previous rules, if you deemed me to be uncooperative you could cut my benefits to 50%. That wasn't enough pain and hardship to inflict on me. Now you want to cut my benefits to nothing if you feel I'm uncooperative.
One of my members a couple of years ago -- I don't want to get into specifics; he's now out of the trade -- had a back injury. They deemed him to be uncooperative. The man hadn't slept in his own bed in seven and a half months; he was sleeping in a Lazy-Boy. He couldn't get into his car, hadn't been out of his house in two and a half months. They cut him off his benefits because he couldn't get to the WCB office to see his counsellor. He couldn't get to the bathroom either, but he was supposed to get up three flights of stairs and travel six miles to see a WCB counsellor. He has three kids.
This, in my opinion, is a cowardly and ruthless attempt to put more physical and mental pressure on injured workers. This is very consistent with the Harris government's total disregard for the working-class people of Ontario. So far Mr Harris has a pretty good record. All the battles he has taken on I think he's won. But then he's only taken on the poor, the uneducated, and now he's going to take on the sick and injured. But remember something: when he takes on the sick and injured he's also going to take on organized labour. Whatever Mr Harris does, for all the power Mr Harris thinks he has, he can't shut this province down. But I know an organization that can.
Thank you very much. That's all I have.
The Chair: Thank you very much. There is time for a brief question and a brief answer from each caucus. We'll begin with the Liberal caucus.
Mr Richard Patten (Ottawa Centre): John, thank you for your presentation. I can see that you can go through that bill and just pick off all the ways in which fairness has gone -- even the word "fairness" has gone from the bill -- and the shift in emphasis that now it's going to be an insurance board. At least before, even with all its flaws, it was workers' compensation. It's not going to be called that any more because it's not going to be that.
One of the issues that comes up time and time again, John, is the difficulty in your industry for return to work. There were two ideas; one came from the north and one came when we were in Windsor. With the multiple employers that workers have very often, who is the one responsible when someone got injured? Maybe it wasn't that one, or maybe it was a repetitive injury over time, with wear and tear or whatever. But the problem, as you say, is, who wants to have someone who is injured in your industry when often you want someone with a strong back?
One idea put forward was to offer a credit system for the contractors, for people who could do some modified work. Have you heard of this idea? What would be your thought?
Mr Telford: That's new to me. You'd have to look at that, but I could see that working in the construction industry. Our jobs' degree of difficulty, physically, varies quite a bit. We have had some -- I wouldn't say that type of idea, but we have contacted employers in the past, fair employers, and talked to them about some of our members who had some physical problems and they found jobs for them, productive jobs, jobs where the employers made money.
A compensation system, yes, I see what you're saying: maybe reducing the rate of compensation for those particular employers or something like that. In the construction industry, this has been a non-existent point for us. We've never had anything that was suitable in the construction industry, so I'm sure we would be willing to listen and work with any type of idea that may help us return our people to the work sites.
You hit a very good point, and it's not just the construction industry. Being in a small area like Kingston, probably having 16 to 20 steady contractors, once one of my members has a serious WCB claim, a back, a leg, something like that, his employment opportunities go right down the toilet. I've got to fight tooth and nail to get him on a job site because they're scared he's going to go down again. That's unfair. It's just not the way that Canadians should be treating each other.
Mr Gilles Bisson (Cochrane South): Thank you very much for having come to present this morning. A quick point before I go to the question; you touched on it briefly in regard to employers who coerce or intimidate or bully, or whatever the term might be, employees to go back to work once they've been injured. I can tell you, I come from the mining industry, and there are some operators, especially non-union operators, where they're bringing people back in in casts because they don't want to see their WCB assessment go up. When those incidents happen we're able to get to the board and we have some mechanism to penalize the employer. Under this changed legislation, I fear that's going to become much more difficult and prevalent.
You raised a point that I think is really important, and that is back injuries. More times than not, when they have a muscle strain injury, people will not file a claim immediately. As you say, it's a thing that happens over a period of time. Sure, there are incidents where somebody gets hurt and it happens there and you have one incident that you can go back to. But with most back injuries I've seen, you got hurt once, you went back to work, it was sore, you tried to live with it -- six months later, two years later etc.
With the time limit, you're going to be in a situation where not only are these people going to be limited in accessing compensation; in a way, you're going to be forcing workers to file claims even though they're probably not ready to go on compensation, because you'll fear that if you don't file for the claim you'll never be able to qualify in the future if something should go wrong. Does that have an effect of possibly bogging down the board and actually causing more havoc in the board than the government is aware it might cause?
Mr Telford: I see what you're saying. I see two sides of that, actually. Yes, there is a possibility that if the worker wasn't going to file, now, if he's educated enough to know the system -- that's the other problem. Some of our people now understand the WCB system; with the change, it'll be a period of time until they understand the new regs, if these go through. Yes, I think that's what will have to happen.
We will probably be instructing our people that if you get hurt on a job site, if you feel some pain, you'd better get a form filled out because six months from now you're not going to have an opportunity to go back and file that form. It has to be documented. You get the papers started.
Mr Bisson: It's more than documentation. You'll have to file for benefits to qualify, to be turned down so that later when you do get reinjured you can qualify for the original injury. That's what you're going to have to do.
Mr Telford: The other side of that, which came to me when you were speaking, is that if we don't get out to our people and educate and inform them of these changes, our people are going to have what we consider maybe minor injuries that turn into major injuries; their time period is going to have elapsed and you'll have no recourse back to the Workers' Compensation Board.
Mr Bart Maves (Niagara Falls): I'd just suggest that now there is a time limit also. I would think that telling the people you work with that same thing right now is relevant.
You talked about a couple of things we've heard before from construction trades councils: the notice of accident and the obligation to apply. Really, there is nowhere that the act says you have to get a form from an employer.
Mr Telford: Where would you get it?
Mr Maves: A doctor. You can get it from your union. You can get it from the WCB office. It will be a variety of places.
The Chair: Order, please.
Mr Maves: The form is available in English and French and the WCB provides services in 70 languages.
The other thing I'd like to assure you of is that the return to work for the construction industry is being discussed as a unique situation with COCA and the trades council and the Ministry of Labour right now. That's going to be prescribed in regulation. I think the act sets out construction in some of these instances, and that is being discussed right now.
Mr Telford: Where do we get our form 7s now when our people get hurt? From the employer. The employer has the form 7s in his job site trailer, so we go and get the form 7 and fill it out. You don't think he's going to have the next form as well?
Mr Maves: He may have them, but you may also be able to get them in other places.
Mr Telford: Let me just run this scenario by you. I'm at work next Thursday morning and I get hurt and I feel a little bit intimidated to go to my employer to get this -- whatever you're going to call it. I'm not sure what you're going to call it. So I feel intimidated and I don't go to my employer Thursday. Friday I don't work, so I go to my doctor and I get one, and it hits my employer's desk on Monday or Tuesday. What's the difference? Now I've gone behind his back and put a WCB claim in on him.
Mr Maves: Don't a lot of people put WCB claims through their doctors?
Mr Telford: My guys don't. My people are instructed -- I keep saying "guys" because we don't have any women in our union, and I apologize for that.
Mr Maves: Then this would be no different.
Mr Telford: Our people get all their form 7s from their contractors.
Mr Maves: Then this would be no different for them. There would be no change for them.
The Chair: I have to interrupt, I'm sorry. Our time is up. Thank you very much for coming before us this morning. We appreciate it. I didn't mean to insult you; I just didn't knew if you knew the rules.
OPSEU KINGSTON AREA COUNCIL
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 183
The Chair: If we could welcome the representatives from OPSEU Kingston Area Council. Again, please introduce yourselves for the Hansard record. You have 20 minutes.
Mr Gavin Anderson: Good morning, and thank you for the opportunity to address the committee today. Let me begin with introductions. On my right is Laura McWaters. Laura is a member of the Service Employees International Union and the chair of the Quinte Labour Council. She will add a few words when I have concluded my presentation.
My name is Gavin Anderson, and I am the chair of the Kingston area council of the Ontario Public Service Employees Union. The council represents over 3,000 OPSEU members in and around Kingston. These workers drive snowplows, guard prisoners, work at video display terminals, operate ferries in all weather conditions, care for psychiatric patients, lift stretchers, run X-ray machines and do a hundred other physically and emotionally demanding jobs. We know about workplace injuries and illnesses. It is vitally important to us that the government remain committed to workplace health and safety. It is our mental and physical health and it is our lives that are at stake.
There are many ways in which the proposed Workplace Safety and Insurance Act fails to adequately protect workers. As an OPSEU member and an elected official, I have a mandate to challenge Bill 99, but OPSEU's concerns and objections have already been read into the record by our president, Leah Casselman, when she appeared before the committee in Toronto.
Today I will use my brief time before you to highlight one small part of the act which I believe must be amended before Bill 99 becomes law. I refer to part III, section 12. Subsection (4) states, in part, "a worker is not entitled to benefits under the insurance plan for mental stress." Subsection (5) provides an exception for "sudden and unexpected traumatic events" but adds that "the worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions" etc.
I am a social worker at Pathways for Children and Youth. That is my full time job. Social work is not generally considered a dangerous job, but those of us who work in the field are all too aware of the risks. The number one threat to our health and safety is mental stress. The stress we experience can sometimes be sudden and unexpected, for instance when, as sometimes happens, a child we have been working with dies violently. More often, workers experience a grinding stress that comes with the relentless responsibility for large caseloads of increasingly impoverished and disturbed clients.
Recent decisions by my employer to change the nature of my work through restructuring have resulted in the elimination of specialists and specialized clinical programs. This has made all social workers and community mental health workers responsible for not only a growing number of children and families but also a growing range of disorders and symptoms. The pressure to see more clients, more quickly, with less training and fewer opportunities to consult with specialists is enormous. There is also a new emphasis on seeing clients away from office settings, exposing therapists and counsellors to the added stress of meeting with unpredictable and sometimes volatile children and parents alone in small storefront operations or at the clients' homes.
Under the terms of the proposed act, those of my colleagues who are subjected to mental stress will not be judged legitimate candidates for protection and, should they become unable to work as a result of this stress, they will not be eligible for compensation. My employer, who is already indifferent to these workplace issues, will have even less incentive to set realistic caseload expectations.
From my nearly 20 years' experience in the mental health field, I know that there is a prejudice against invisible injuries. Unless there is a cast or a lab report, many bosses simply refuse to believe that an injury or an illness exists. The act, as it reads now, perpetuates this antiquated, narrow and biased view of health.
On behalf of the workers across the province who take on the heavy emotional burdens of clinical work, please delete the exclusions identified in section 12 and recognize that not all injuries are purely physical.
In closing, I do not want my focus on this single element of Bill 99 misconstrued as any kind of support for other aspects of the act. In fact, taken as a whole, Bill 99 reminds me of a 1,000-year-old approach to health. In the Dark Ages of Europe the healers, at least the officially sanctioned healers, dealt with the common headache as follows: When someone complained of a headache, the doctor drilled a hole in the hapless patient's skull. The belief was that this released the toxic vapours or evil spirits that were causing the head to ache. The process was celebrated, by the healers anyway, as successful because no one who was treated ever complained of a headache again. Lower reporting rates were equated with general good health and wellbeing.
Looking backward 1,000 years, we know better. Looking back just 125 years, when the bodies of workers were routinely crushed in the gears of unfettered industrialization, we know better. Twenty years from now, when we look back to today, when we more fully understand the causes of chronic fatigue, burnout and environmental illnesses such as breast cancer, what will people think? They will think, "We should have known better." Thank you for your attention.
The Chair: I believe Laura has a presentation as well.
Ms Laura McWaters: My name is Laura McWaters. I'm president of the Quinte Labour Council, and health and safety and workers' compensation representative for Service Employees International Union, Local 183.
Every day I get a daily litany of phone calls from workers injured in my local, all the way from Peterborough to Ottawa, in panic, fear and oftentimes crying because they have had a horror story in the workplace with the employer or WCB. So my comments are going to focus on what they hear most in the workplace, which is keeping the costs down.
Workers' compensation: What is its purpose? Most people would think it is to compensate workers injured on the job. The Harris government seems to think it is a luxury payment plan pandering to lazy, incompetent workers trying to rip off the system.
The formula regarding implementing WCB compensation is thus: The employer agrees to provide a safe working environment for its employees. The employer agrees to provide a built-in financial safeguard for its employees should they be injured on the job. The worker is injured on the job. The employer honours its commitment to the worker by registering the injury, and the worker is medically treated, financially compensated and returned to the workplace.
Sounds simple, doesn't it? The employer and the state taking responsibility for taxpaying citizens who contribute to the health of the economy and the communities they live in. A little too idealistic? A little too moralistic? Working people don't think so. They do not go to work every day expecting to lose a life or a limb, too crippled to care for their families, to die an agonizing death from some industrial disease that they have probably passed on to their spouses or children. In other words, they do not make a choice to go to work to have their bodies hurt in any way. They go to work expecting to come home the same way they went -- in one piece.
This government seems to have forgotten that we left the Industrial Revolution working standards behind us over a 100 years ago. This is 1997, not 1887. The arrogance of employers' inhumane treatment of workers has not been eradicated, even in this day and age. The proposals to strip away legislation that provides health and safety and compensation for injuries in the workplace send this province back to a time when workers were considered subhuman and not worthy of any sort of thought or compassion. After all, there was, and still is, another one to take their place -- you know, the age of the disposable worker.
The experience of workers who represent other workers in their compensation claims is horrendous -- watching their fellow workers lose their jobs, their homes, their families, their dignity, and not believing that it could happen here in Ontario in 1997.
Over the past year, the employers have become quite bold about not registering WCB claims, preferring to get the worker to take sick time or vacation time so they can keep their costs down; pressuring workers to come back to work before they are ready because they want to keep their costs down; not allowing the worker to stay off work at all, to keep their costs down; sending workers to a "WCB clinic" for therapy when it is a private clinic not tied in to WCB at all. The worker believes it is and goes, thinking that their claim has been registered and they are receiving treatment from WCB, when it fact they are not.
Employers, feeling that a worker has been off on compensation too long, challenge the legitimacy of the claim weeks after it has been approved to get the worker back to work quicker, and keep their costs down. Unfortunately, WCB goes along with it, forcing the worker to repay all their benefits that they have already received, usually thousands of dollars.
Worse than this is WCB challenging the legitimacy of the claim after it has been established. Even when the employer does not object to the claim and in fact supports the worker, WCB tries to disallow it and make the worker repay the benefits. I have just had three cases in the last two weeks where that's happened.
What about some of the injuries that will be removed from the compensable list, like repetitive strain injury? Currently, over 50% of WCB claims are for RSI and over 80% of those claimants are women. Over 80% of claimants for back injuries are women who work in health care institutions, mostly nursing homes but increasingly in hospitals too. Astounding, when one would think they would be in the construction or industrial workplaces.
What about industrial diseases? The most insidious sort of injury, it sneaks up on you, your family, your community and strips away a vital contributing member of society and lays waste to everything and everyone it touches. Of course, a good way to hide it is to get rid of the Occupational Disease Panel which investigates and studies the effects of disease caused by the workplace. Then no one will ever know who is really to blame.
What about the proposal that the employer gets to decide whether the injury is compensable or not? A slight conflict of interest, wouldn't you say? A little like a rattlesnake deciding just how much venom they'll give you -- a little at a time to kill you slowly or one big dose to knock you off altogether.
What about the proposal that the employer have the right to see your medical information, not just what pertains to your injury? Now tell me, just why would the employer invade a worker's privacy like that unless it was to use it to their advantage? Why would the employer need to know that a woman had a hysterectomy, when she injured her wrist; that a worker had a long-past treatment for substance abuse or psychiatric treatment when they lost their foot in a piece of machinery; that a worker had been treated for a venereal disease; when they pulled a muscle in their back? What possible justification could anyone have for invading someone's privacy like that unless it was to use it against them? Do you believe that any worker is going to want to establish a claim knowing that all their private medical information that their doctor is required to keep confidential by law is now to be released to the employer, who literally holds the worker's financial future in their hands?
What about the proposal to make the worker file their own claim? Again, no onus on the employer or the state to consider those who are uninformed, illiterate, do not speak one of the official languages, who basically do not and probably will not ever know that WCB exists and that they have a right to it. But it keeps costs down, you know.
The bottom line is, keep costs down. Keep whose costs down? The profit lines of the employer and the implementation costs of the government, because, lest anyone forget, the government and the taxpayers do not pay one red cent into the fund. It's fully funded by the employers, who, as you know, have to keep their costs down.
But what about the cost to the worker in loss of mobility, a whole body, no time without pain, the loss of livelihood, home and family, the loss of dignity, self-worth and a reason for living? Just how much cost are we willing to attach to a worker? Who gets to decide and who has the right to decide?
What about the cost to the community and the state in the form of healthy, productive members of society who now rely on the state for assistance to simply survive every day? Doesn't this cost more? If you're going to keep costs down, doesn't it make sense to keep workers safe in the workplace to begin with and then care for them promptly and return them to the workplace, where they can continue to make their own way in the world, than to consign them to a lifetime of poverty and dependence upon the state? Doesn't this in fact cost us all more economically and socially?
Workers will be so intimidated and humiliated by the process that it will not be worth their while to file a claim. It will cost them so much financial, mental and emotional anguish they will choose to remain on the job injured and suffering, rather than try to establish a claim that may cost them their job.
This whole speech has talked at length about the government's perceived need to keep the costs down, when in fact we all know that the WCB fund is more than amply solvent and the reality is that employers do not want to shoulder their responsibility for the workers they employ and so have lobbied the government to help them reduce their costs by eliminating or reducing accessibility to the fund and the amount of financial compensation.
In closing, the hallmark of any civilized society is how it treats its weakest members. Injured workers have become a weak link in the chain and need to be supported and made stronger, not cast aside and replaced. Reducing benefits, reducing accessibility to benefits and reducing workers' human rights does not keep costs down. It simply scapegoats the worker for the failings of the employer and the state to do that which is right, and what it right is to meet its obligations when workers under their employ and protection become injured.
The Chair: Thank you very much. We have time for a very brief question and answer from each caucus, beginning with the third party.
Mr Christopherson: Thank you, Gavin and Laura. I appreciate your presentation.
Like you, there are so many things to deal with. The one thing I think I'll focus on is the issue of stress. The government of course, if you think about how they're doing this, is denying WCAT the ability to make independent decisions from board policy. The board is now controlled by the government's friends because workers lost their 50% of the seats that we had on there. In fact, they fired all the labour representatives that were on there already. By putting those people in charge, the policy now rules WCAT cannot make decisions outside of policy, and then they banned stress under the law. It takes a whole growing area of workers, as you've indicated, and removes them from the ability to be compensated for a workplace injury.
What you hear from the government and employer groups is that you can't identify stress that's related to work versus what happens in every day life. Yet one of the benefits of public hearings is we've heard evidence quite to the contrary.
We've now had Dr Ruth Berman, who is the executive director of the Ontario Psychological Association, state very clearly in these hearings in Toronto that, yes, you can differentiate between stress that originates from the every day activities of life and what's happening in the workplace. That can be done.
The Canadian Mental Health Association is also making the same claim, and just yesterday Dr Nick Kates, a psychiatrist in my home town of Hamilton, went on the record as saying the same thing. In fact, he said:
"Removing stress as a compensable condition has a number of serious implications"; one is "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." We know that's the other part of Bill 99 and that is to remove a lot of the pressure that we've been trying to put on employers to make the workplace safe.
Gavin, my question to you would be this: Are you in agreement with other labour leaders across the province who see this as the biggest area of increases in compensable injuries that workers are facing, that this is the new area and that by cutting it off in Bill 99, this government's turning their back on those injured workers?
The Chair: Very briefly, please.
Mr Anderson: I wouldn't want to identify any one area as the area, but certainly it is a growing area. If I could add very quickly, you quoted a number of eminent professionals -- psychiatrists, psychologists -- as authorities on stress being legitimate. You don't have to have those credentials to identify stress as a workplace issue when somebody walks into their office and dissolves into tears, is quaking and unable to continue and, when they're removed from the workplace, are able to function quite normally. If you'll excuse me, that's common sense.
Mr John Hastings (Etobicoke-Rexdale): Ms McWaters, for common sense, would you not think that when you look at the cost of workers' compensation totally -- you have in your brief that it's the employers who pay it. Factually that's true, but when you look beyond that, it's the cost of doing business. Anybody, if it's a gentleman here from the construction industry -- you renovate your house, you go have your car repaired, you have your shoes repaired, you buy new shoes. The factor of the cost is in the business for that employer, whether they be retailers --
Mr Hastings: No, it's true, that in fact everybody shares that cost through the purchase of a consumer service or good. Do you not accept that as a reality?
Ms McWaters: No. What I accept is the employer has a moral obligation to look after those who are under the care of their workplace. There was an agreement that the employer would fund injured workers, and if you're trying to tell me --
Mr Hastings: Where does that injured worker get his cost or his pension or her temporary total benefits when he or she gets injured on the job through no fault of their own? It's through that employer and that collective group, whatever the nature of the business. Is that not a reality? Do you not understand that?
The Chair: Order, please. Allow the presenter to answer.
Ms McWaters: I do not understand what you're trying to get at. I'm going to make an assumption here that you're trying to tell me that the employer is going to reduce its costs to the worker because it's too costly for them.
Mr Hastings: No.
Ms McWaters: Then what is your point?
Mr Hastings: The point is that just like --
The Chair: Order, please.
Mr Hastings: Just like OPSEU, when we had the problem with the strike and you folks had your strike of your own office workers, you had a cost problem. It was quite obvious you either had to reduce their benefits in terms of salary, lay them off or give them early retirement or some such arrangement, because you simply, as a union, did not have the moneys coming in to cover all your costs; the same here on the employer's side. When an employer hires people, that is a cost.
Interjection: Where have you been?
Mr Hastings: Where have you been?
Mr John Gerretsen (Kingston and The Islands): I don't understand that kind of argument at all. The bottom line is this: You've got somebody who cannot work because of stress-related problems. That person has to live, has to have resources, has to have money to live. It's as simple as that.
I think the way mental stress is handled in this act, if you look at particularly subsection (5), in which it says we're not going to pay for mental stress but there are certain circumstances when we will pay for it, if it's a traumatic experience, but not if somebody gets fired or the conditions of work are changed or anything like that, it is a typical underlying attitude here that in which the government basically says, "We think too many people are faking it." I think that's a horrible attitude for a government to take, and putting it under the carpet is no different than saying, for example, mental illness is not really an illness.
I totally agree with your presentation. This is a step backwards in which we don't recognize mental problems or conditions as real medical problems. It's as simple as that.
The Chair: Thank you very much. We appreciate you coming before the committee to give us your ideas.
EMPLOYERS' ADVOCACY COUNCIL, PETERBOROUGH AND OTTAWA CHAPTERS
The Chair: I call now on representatives from the Peterborough and Ottawa chapters, Employers' Advocacy Council. Good morning and welcome. If you'd please introduce yourselves for the record.
Dr Roger Rickwood: I am Roger Rickwood. I am the chair of the Ottawa chapter of the Employers' Advocacy Council. I'm also representing the Peterborough chapter of the Employers' Advocacy Council and a provincial vice-chair of the EAC. With me is Sherri Helmka, the executive director of the EAC. We're based in Kitchener. We're a province-wide organization. We represent 1,700 employers across the province, from large corporations like Canada Post down to the mom-and-pop store on the corner. We are a very comprehensive employer organization.
The brief that we're going to present today, unfortunately I don't have copies for you at the moment. I was trying to get them done up the street at a local firm, which I won't mention, but their machine -- wonderful graphics. They could produce them, but they couldn't staple them together. In about half an hour the actual copy will be presented to you. I apologize for that. Technology hasn't advanced that far yet.
I'm going to concentrate today on three major points. Having heard some of the questions from some of the honourable members, I'm sure there will be some interesting questions thrown to me.
The major thing we want to say is that we support Bill 99.
Dr Rickwood: The wonderful world of democracy is here today.
The Chair: Order, please.
Dr Rickwood: I will exercise my democratic rights and I will speak to the committee.
We support Bill 99 because we think it will modernize the workers' compensation system in this province. This piece of legislation has not been revised since the 1950s. It has been piecemeal, cobbled together, and it needs a comprehensive review. This province is falling behind other provinces. We are losing the competitive race. We are going to put ourselves at a disadvantage vis-à-vis the border states and our comparator provinces.
The Chair: Order, please. It's difficult to hear.
Dr Rickwood: We have to survive to ensure that employers and workers and the citizens of this province get a comprehensive system at a reasonable cost that is satisfactory to all the stakeholders. That's our basic position, and we can go into all those items in detail.
What I want to talk about are three items that I think you'll be interested in. One is the occupational disease issue, which I understand has been kind of a fiery topic around the province. I was the employer representative on the task force on occupational disease which was appointed by the Peterson government and continued by the Rae government. We reported; we had a unanimous report. Unfortunately, the government of the day, which was the Rae government, did not act on the document.
The Conservatives have not yet, other than this piece of legislation, made any action on the occupational disease issue. It does need action; there's no question about that. Occupational disease is a critical issue in this province. The document that you have in front of you, Bill 99, does not really fully flesh out that issue, so you're right to raise the issue of occupational health because it's not being dealt with in sufficient depth here. However, we're going to talk a bit about the structures here today. I'm sure some of the honourable members will have some questions on that.
The Occupational Disease Standards Panel is, I understand, to be merged into the compensation board. The Employers' Advocacy Council took the position that there should be a scientific advisory council that would give scientific advice to the Workers' Compensation Board of directors: not the board adjudicators, not the board staff, but the board of directors. This scientific advisory council, in our opinion when we made our submissions to Mr Jackson, did not have to be inside the board; it could be outside.
The government, in its wisdom, has decided for administrative efficiency reasons to include it inside the comprehensive board structure. For administrative efficiency reasons, we go along with that and support having the function brought inside the board. However, we believe there should be an independent structure, advisory body, inside the compensation board, similar in principle to British Columbia, where there is a secretariat inside the compensation board that gives independent advice to the board.
This body, the occupational disease advisory council, committee, secretariat, whatever you want to call it, would be a purely scientific body. It would be made up of professionals. It would evaluate the scientific evidence and would make recommendations to the board of directors. The board of directors could accept them, could amend them or could reject them. This structure, we think, would work.
We do not see the structure doing any research on its own. That research could be done by faculties of health such as at the University of Waterloo or at Queen's University here in this wonderful city, or it could be done at McMaster University, and also it could be carried out by the Institute for Work and Health. There are plenty of good, solid research institutions in this province that can deliver it independently and objectively.
The EAC believes very strongly that occupational disease needs to be dealt with and there has to be adequate research money put into it. We believe it should be highlighted in this legislation. It's not something that has been done, but we do not agree now with keeping the ODSP outside of the board structure. We have to find some efficiencies, some economies, to get the task done. So that's the first principle.
The second one, which you've probably heard about very much around this province, is return to work. Return to work has been addressed in the document. We would like to see it go a bit further and to bring in alternative dispute resolution mechanisms so that the parties could sit down at the table -- the worker, his union representative, the board, the employer -- and work out an arrangement and then that arrangement would be binding, not one that takes five years to sort out and to thrash out, where people can't get back to work in a quick, modern kind of way.
I will be submitting to this committee a document which I prepared with Judith Campbell, RN, and Rose-Marie Dolinar, RN, in collaboration with Dr Robert Fassold, that documents the return-to-work program that was implemented at Canada Post Corp, which documents that return-to-work programs can work and they can bring people back to work.
Interjection: If there's a job.
Dr Rickwood: If there's a job. Believe me, we think everybody should show some imagination in this province -- employers, workers, the board, the people in the health care community -- and find jobs for people. There's no point in this province having people sitting on the sidelines where it costs money and they're not doing any work. That doesn't help anybody. The EAC believes strongly in returning people to work and we want to get on with that job.
The third point that I wanted to talk to you about is the WCB-WCAT relationship. I understand some honourable members have had some comments on that and I don't expect that we can resolve this kind of issue today. We support the Bill 99 position that the board should be the policymaker and that the WCAT should have limited right of review over those decisions, mainly on the question of fact. Issues of law, if they have to be dealt with, are ones that legitimately should go the courts for adjudication.
We do not support the continuation of this process in Ontario which prolongs cases up to five years before you can get a final decision. We believe the rubber hits the road at the compensation board, and that is where the decision should be done right in the first place.
If there's a problem with the decision of the board, you go back to the board and you get it fixed there. If the board can't fix it, you fire the people at the board and you bring in new people who can fix the problem. We demand performance out of the compensation board in this province. We do not believe in this long legal, bureaucratic process that has been developed in this province. It's not helping anybody. It just prolongs the case and hurts people in the final analysis. That is our basic position there.
We also believe that if there is going to be policy review in this province, this committee is a good vehicle for collecting information and suggesting how things can be done. There also can be another device which has been invented in the provinces of Saskatchewan and Newfoundland, where there's an independent inquiry structure that the Legislature appoints every three to five years. They do a fact-finding tour around the province, bring certain critical issues forward, and then that can be dealt with by a legislative committee in a pragmatic, proactive and effective way. That would be a better method than this higgledy-piggledy, cobbled together WCAT leading-case process that doesn't really solve the problems in this province.
Those are the three key issues that we wanted to put on the table today. The Employers' Advocacy Council is here to assist. If we can't answer the question today, we will provide it to you in written form. We work with all three political parties in this province and we have members in our organization from all three political parties. We are trying to make sure the employers' viewpoint is represented because that's our job, but we don't believe the process in Ontario can be a one-way dialogue. It has to involve the workers, it has to involve the decision-makers, the compensation board people and the people in the health care industry. Unless all the stakeholders are cooperating on an active basis, this system is not going to work.
Thank you for allowing me and Sherri to come before you. I'm prepared to answer questions here today or to give you some documentation later on if you need it.
The Chair: We have three minutes remaining for each caucus for questions and answers and we'll begin with the government caucus.
Mr John O'Toole (Durham East): Thank you very much for your presentation, Roger and Sherri. I think it's important, as you suggest, for each of us to listen to the balance of input from employers and workers, injured workers more specifically. That really is what these hearings are about.
In fact, you might say the hearings in Ontario have been going on since 1981. The first reform commission with regard to the dysfunctional nature of the WCB has been going on -- all three parties have led the charge, and I commend them for that. It's never been easy. I could for the record make some important quotations to make sure we understand the position -- government is always in the position of being responsible for the changes. I'm going to move you through what the position of each of the three parties has been.
The NDP, in their review and during the election, had two pieces of legislation to defend as well as the royal commission: Bill 162 and Bill 165. Briefly, Bob Mackenzie made a statement: "There is a growing feeling that the WCB is becoming a drain on Ontario's economy, on our ability to attract investment and jobs and spark business confidence. Never has there been so much unanimous agreement that the board is in such critical need of reform and renewal." That's the former NDP labour minister, Bob Mackenzie. I've heard him speak a number of times: a good man, tried to change, but they have to deal with their political partners, if you will.
I'm going to bring this a little closer to home and I'm going to quote Mr Christopherson, who is their labour critic today. This was in reference to the unfunded liability: "In the three years since we've brought in our WCB reforms" -- by the way, I could give you some numbers on how much they actually took out -- "the unfunded liability has dropped every year." His focus was the unfunded liability, and good for him, because without the money there is no sustainable future for employers or employees.
The Liberal Party position should be well understood early today at the hearings. I'm going to start with the leader, Mr Dalton McGuinty, and I'm going to tell you what he says. Regardless of Mr Patten's view or Mr Gerretsen's view, their leader very clearly stated -- I might as well start with it, give you the date and everything. It was on TVOntario's Studio 2. The question raised was:
"Dalton, the Conservative government is making changes to workers' compensation. Would you keep them?"
The response of Mr McGuinty, the Liberal leader: "Yes, I'd keep these changes."
"Would you bring down or remove the rates?"
Very clearly, their job is to oppose everything we say. The reality is, we're trying to improve a system that is widely understood, since 1981, to be broken. If you think it's working, every case I've heard has failed because the current system is dysfunctional.
I believe we need to work together. I agree that every injured worker should be heard. I agree in every bit of the partnership, but we both have to listen to each other. These hearings are about listening. We are listening. There will be changes, and I'm convinced that if we think this is a class war or something like that, get over it. We need to work together.
On the liability, I think it's important --
The Chair: Mr O'Toole, briefly, please.
Mr O'Toole: If I can ask one more question, are you prepared to work with union, employees and employers to improve the system, which is widely understood by all parties to be broken?
Mrs Sherri Helmka: The Employers' Advocacy Council has always been willing to work with all stakeholders. It has always been our position that we want to effect constructive change, and we know there are injured workers out there who are not being treated fairly. Yes, we are committed to fixing the system and working with the stakeholders.
Mr Gerretsen: Just to respond to Mr O'Toole, we all agree the board needs reform, but what has cutting the premiums to employers when the system has got such a large unfunded liability got to do with board reform? Board reform is one thing. Cutting premiums to employers and cutting benefits to workers is something totally different.
That gets me to you, sir. You talk about competition. We all like more competition. We all like a full economy where everybody is working etc. What proof do you have? You said there would more jobs in Ontario and there would be more work done here etc. What proof do you have? You said there would be more jobs in Ontario and there would be more work done here. What proof do you actually have that by cutting the employer's premiums by 5% and by cutting the benefits to injured workers by 5% this is going to bring more jobs into Ontario, and where? Could you give us some examples?
Dr Rickwood: The evidence I have is from talking to business leaders who make decisions, and that's the only kind of decision that counts.
The Chair: Order, please.
Dr Rickwood: Business decision-makers have documents that show the comparative cost of workers' compensation in Canada and the United States as one factor they look into when they make decisions, and on that basis we in Newfoundland are at the top of the heap in terms of the costs. If you can go to Quebec or you can go to Manitoba or you can go to Alberta and get a cheaper rate, you will go there. That's how businessmen make decisions, and whether we like it or not, that's how they do their calculations.
Mr Gerretsen: But do you have any names of any companies that didn't locate in Ontario because of the so-called high rates here?
Dr Rickwood: I don't have any specific names that I can give you. However, I was in Alberta last week and I saw the growth in that province, in Edmonton and Calgary, and I don't see that kind of growth in Ontario.
Mr Patten: Related to the Occupational Disease Panel, my understanding is that on the present basis the panel doesn't just go off half-cocked, that they will identify and examine areas and then recommend to the board what should be studied, and the board does have overall authority, so I don't see what the problem is. When you talk about the integration or the consistency, everybody knows that the board of directors has the overall authority, except in the case where they may be not honouring the legislation or there may be something that has to do with general labour law and WCAT may bring about a change. But I think you need to have that.
You are suggesting that the Occupational Disease Panel be done away with and a scientific council replace it. What would be the difference between what is there now and what you are proposing?
Dr Rickwood: First of all, Richard, we're sorry that we can't be giving this presentation in Ottawa where you are a local member. Unfortunately, the committee was not going there, and the Ottawa chapter is sorry about that.
The Occupational Disease Panel is a mixed policy-scientific body. It has members who are laypeople as well as scientific people. We believe that the advisory council should be only staffed with scientists, whether they are physicians, psychologists, psychiatrists or chemists. It would be on a scientific basis.
Dr Rickwood: No, we're not suggesting an employer sit on that body. We're not suggesting that workers sit on the body. They should be scientists primarily who sit there and give technical advice. Where there is a policy decision that involves a political component, that should be done by the board of directors, which should be fully reflective of the community. So that's the structure.
There are some costs, about $1 million, that the ODP costs, and we believe that some of those costs could be cut down if it was moved inside the organizational structure of the compensation board in terms of physical structures, library services, along that kind of line, and those extra dollars could and should go into research on various occupational disease issues. They should be reinvested in occupational health issues.
Mr Christopherson: Thank you for your presentation. Just to set the record straight with regard to your presentation and the comments of Mr O'Toole, yes, we are proud of the fact that the unfunded liability came down by $1.1 billion, and we believe it puts the lie to your argument that there is a crisis out there that justifies what you are doing to injured workers.
I'll tell you what else we did. I'll defend our record any day of the week, because do you know what else we did? We gave a $200-a-month increase to over 40,000 permanently injured workers who will never work again. I'll tell you what else we did. Rather than kill it, we funded and made operational the Workplace Health and Safety Agency, which you killed, and we created a royal commission that publicly was going out looking at how to make changes that are positive for working people, not Bill 99 that was drafted by your buddies in the corporate sector. And I'll tell you what else. We didn't cut by 5% the amount of money that injured workers are getting. We didn't do that; you did. We gave workers 50% of the seats on the board of the WCB; you fired the labour representatives.
I'll tell you what else you're doing. You're eliminating the right of injured workers where it's stress-related; chronic pain was eliminated; you've got time limitations that are going to remove workers' ability to claim; you're killing the ODB; and we sure as hell didn't give $6 billion of injured workers' money back to the corporations.
Mr Bisson: Dave stole half of what I wanted to say, but the other half had to do with the ODP. You're saying that what you want is an independent body that's going to scientifically look at the data in order to prove or disprove if something should be compensable, and then you're saying, "We want that independent from the board and we want them to make their recommendations to the board itself to decide if it will or will not be policy."
That's how it works now. The ODP is an independent agency. I don't want scientists administering an agency. That's not what they're supposed to do, be pencil pushers. I want people to administer that. There's a very small staff at the ODP to do that, and the bulk of the $1 million they have is used to hire scientists outside of the WCB, all over the world, to be able to take the scientific data that we need to prove or disprove that something is industrial disease. The current act, under section 95, basically says the findings of the ODP are then sent to the board and the board decides if the policy will or will not be adopted by the board itself.
I take it you're saying you are in agreement that it has to be independent and you are in agreement that there has to be a board as far as deciding what happens. How is that different than what is already happening now?
Dr Rickwood: For one thing, it's outside of the compensation board. It's an independent structure. It has a lot of paraphernalia --
Mr Bisson: But you're calling for an independent structure.
Dr Rickwood: No. I'm calling for an independent, arm's-length structure within the compensation board where the physical facility --
Mr Bisson: But the point I make is that is already the case, because the ODP exists within the workers' compensation structure through the act.
Dr Rickwood: The ODP is not the same thing as what we are recommending. The ODP is a combination of scientific and laypeople. It is a political body.
Mr Bisson: So the code word is that you want something that the employers can control and deny access to benefits for workers.
Dr Rickwood: No.
Mr Bisson: That's the code here. That's what you're saying.
Dr Rickwood: I want something which will give scientific evidence and evaluation.
Mr Bisson: No. You're saying you want employers to control --
Dr Rickwood: No.
Mr Bisson: Because it's now independent.
The Chair: Mr Bisson, please allow the witness the opportunity to answer your question.
Mr Bisson: You're perfectly right.
Dr Rickwood: I appreciate your view, and it is certainly a legitimate position to put forward that you can have an external body that can combine lay and scientific opinion. That's one way to do it. But in the time of a shortage of funds and time to speed up processes, it's our view that bringing this body within the compensation board will provide some economies, will take some of those dollars, put them into pure research and will work a lot like the British Columbia secretariat which deals with occupational issues and is working effectively there. If you can get some economies, you can get more money into doing research; if you can speed up the processing of policymaking and establishment of criteria, that's what we suggest be done.
The Chair: We must move on. Thank you very much for coming this morning.
The Chair: Mr Bisson, please. Order, please. On behalf of the members of the committee, we appreciate that you have come this morning.
KINGSTON AND DISTRICT LABOUR COUNCIL
The Chair: Can we please call representatives from the Kingston and District Labour Council to come forward. Good morning and welcome. Please introduce yourselves for the Hansard record.
Ms Elizabeth Jones: My name is Elizabeth Jones, and I'm with the Greater Kingston Area Injured Workers Association.
Mr Peter Boyle: Good morning, members of the standing committee. My name is Peter Boyle, vice-president of the Kingston and District Labour Council and president of Local 343, United Steelworkers of America here in Kingston. With me today are Elizabeth, who has introduced herself already, from the Greater Kingston Area Injured Workers Association, and John Cairns, who is an injured worker from the Quinte area. They'll be assisting in the presentation.
The Kingston and District Labour Council represents nearly 10,000 workers in almost every field of employment in this region. We help both organized labour unions and the unorganized to assist all workers in the quest for fairness in the workplace and in the community. In this endeavour, we also have strong ties with community groups in the region.
I want to say this. Bill 99 is a well-orchestrated, employer-slanted combination of clauses that will lead working people in Ontario down a road to greater pain and suffering. It will transcend the minimum limits of human dignity to all injured workers. Bill 99 has only one place worthy of its present contents and that's the garbage container.
Bill 99 in its current form opens the floodgates to undermine the independence of the compensation system and welcome bad employer practices to Ontario: intimidation, breached confidentially, less coverage for workplace injury on the workers' end of it; and less training and commitment to safer workplaces, shifting of costs directly from employers to the taxpayers to add to company profits on the employer side. It's not going to help anybody.
Provisions of Bill 99 reward the terrible employers of the province and taunt the good employers to follow suit in the name of good business practice and competition.
There are so many changes that will affect workers' health, it is clear the intent is to blame workers in this act. Many companies now use American-style injury reporting to be comparative in the marketplace to their American counterparts. These statistics hide compensable lost-time injuries that are currently recognized by the WCB because, by American standards, they're not disabling at the time of injury.
Bill 99 continues in this direction by seeking to eliminate the right of entitlement to soft-tissue repetitive strain injury, chronic pain and mental stress. This all comes from workplace reorganization that in the past few years has been on the increase.
To further confuse workers on the origin of their injury they must apply for benefits themselves, not by a doctor, as current rules allow. I have see in my experience in the workplace with injured workers the doubt and suspicion that even the rated good employers inflict upon workers when the worker is not carried out on a stretcher when injured. The changes proposed to limit claims and compensation for workers clearly target the workplace injured.
To add to this mess for injured workers, employers will be given licence to define a return-to-work process. For whose benefit will this evolve? To avoid lost time ensures only reduced cost to employers, not benefit, not healing to the worker.
There is nothing in this bill we can find that will provide for reduction to workplace injury and disease. In fact, the Occupational Disease Panel will be disbanded, further hiding the causes of workplace disease. This panel must be left intact to continue independent research.
By the very nature of the changes to cut benefits for workers and to hand employers, who already enjoy some of the lowest rates in Canada and North America, a windfall signals a disaster for workers.
Workplaces and the employers that control them must bear the responsibility for injuries and deaths occurring while they make their profits. They must be accountable for the business decisions they make that lead to workplace injury and disease. Reduction in employer responsibility to pay will lead to increased workplace carnage that shifts the cost of bad bosses to the workplace, the community and all taxpayers who have to foot the bill for health care-related costs, while the bad employer profits.
I have attached some information on return to work which I hope the members in their consultations over the weekend will have a close look at.
Mr John Cairns: I didn't get to introduce myself earlier, so I'll take that opportunity now. My name is John Cairns. I am an injured worker. I am a human being with a heartbeat and pulse. I represent injured workers, workers, anybody who gets up with a heartbeat; in other words, mankind.
It is an honour and a privilege for me this morning to share and reflect on Bill 99 from an injured worker's perspective. It is a particularly important occasion. It's a rather discouraging occasion, nonetheless an occasion on which I am motivated and committed to pour out the meat and potatoes, if you will, with respect to Bill 99.
In the next few minutes I will share my voice here today with respect to coping with life after a loss. Bill 99 certainly has its financial deficit implications for workers and injured workers, however my presence here today is to convey a message of the human deficit that this bill will impose on the working people and injured families across this province.
Early one cold November morning I woke up assuming that my life would be much as it was the day before, leaving to go to work, expecting to return at the end of my workday and all would be, so-called, normal. I had that feeling about myself of being responsible, being independent, being in charge of my life. I was living a life of independence, one with dignity and a sense of belonging.
That platform of my life came to a horrific, abrupt end, without any warning or any preparation. On November 30, 1992, 68 tons of railway car passed over top of me. Instantly, I suffered the physical loss of my arm and leg, never again to know the way it used to be; from a life of total independence, now to live in a state of sorrow and despair, experiencing pain so intense from shattered dreams and shattered hopes, which now only became like grains of sand slipping through my fingers.
Healing physically was a picnic compared to the emotional and psychological devastation. To lose my identity, my confidence, my self-esteem and that sense of worth only equalled that lost feeling of being somebody. As an injured worker, I was overwhelmed with the daily expectations of life. My whole person was consumed in an abyss of emotional and psychological despair.
In every aspect, Bill 99 exhausts any hope left to an individual who is so desperately striving for a quality of life worth living for, in a world that is anything but normal to them. This bill does not embrace a fair and compassionate agenda in the best interests of workers, injured workers and their families. While we try to cope and balance the daily expectations of life, this bill does not provide a solution to the human hurt and suffering incurred through an injury.
How does taking away benefits from the injured workers and their families in order to give $6 billion back to the employer create a solution to the human pain and suffering incurred through no fault of one's own? This bill reduces the incentives for employers to prevent accidents. If it costs the employer nothing when a worker is injured, employers will not spend money to prevent the accident in the first place.
Where is the consideration of the humanitarian implications should an injury occur? Is this government sending out a message to the people of this province that it's okay to have 8,000 deaths a year and over 850,000 injuries annually? To concentrate on reducing claims rather than preventing them in the first place does not alleviate the human deficit of an injury. To put workers and their families into frightening situations as their employer forces them back to work -- and should the return-to-work plan not be in the best interests of the injured worker, the injured worker is then deemed uncooperative and subject to having their benefits terminated. How does this create a life of purpose and one with a sense of contribution back into their life and their community? How does Bill 99 build a rehabilitation system that assists an injured worker and their family in acquiring a standard of living that they once enjoyed, pre-accident? Where is the funding for education and safety awareness?
To erode our quality of life as a result of this government problem-solving on the backs of workers and injured workers with their families is unacceptable and inconceivable.
Mr Cairns: I'm not finished yet.
As far as I am concerned, this bill is a pure and simple attack on the most vulnerable people across this province. Injured workers and workers ought not to be penalized for being injured. This bill's proposals will leave the injured worker and families defeated. We need a bill that will care for us as a whole person, not lacerating us into monetary pieces, not just a compensation or, as we heard earlier, the new name, an insurance system, and certainly not being reduced to a number.
Injured workers and their families deserve a future. We deserve a future that will generate confidence, optimism and a sense of hope back into our lives. We need a bill that suggests a humanitarian type of approach, not a one-sided employer, business type of approach. Indeed, we are human beings. Therefore, humane changes are the kind of changes that will meet the needs of workers, injured workers and their families in a holistic way.
Should this Bill 99 be implemented as tabled, it will become a cancer in people's lives. People make up our society. What do we do when cancer has been diagnosed? We immediately treat it with chemotherapy and we try to promote and sustain life. We kill the cancer. That's exactly what this government needs to do with Bill 99.
Mr Cairns: We need to move forward in fairness and compassion. You see, we believe in tomorrow. We believe in change. We believe in growth and we believe in life after loss. So ought this government. Our presence here dictates such.
Life is a series of choices. Choices have consequences. This bill's consequences will cost workers and injured workers and their families an arm and a leg. Government members need to choose today to tear down this bill and build up lives. Workers and injured workers and their families have taken the responsibility in resurrecting our lives the best way we know how. The time has come for this government, then, to take responsibility in equipping us with the kind of tools we need in acquiring a quality of life, a life of hope, filled with purpose; tools that would reshape, reproduce and build lives; tools that would turn obstacles into opportunities, disabilities into abilities, making a contribution, fulfilling our potential, so that at the end of the day we can say, "I am a victor and I'm not a victim."
The Chair: We have time remaining for questions from one caucus only, and it will be from the Liberal caucus.
Mr Boyle: Excuse me, we're not done our presentation yet.
The Chair: I apologize, I'm sorry.
Ms Jones: Ladies and gentlemen of the panel, John spoke at the royal commission and was given a standing ovation. He has a very visible injury, but what you don't see is that John now doesn't have a job. He's going to be rehabilitated, and God help him if he doesn't jump through the hoops on one leg. God help him if he's given a hard time. God help him if he has terrible pain, because the board won't recognize his pain because he has visible injuries, he has no arm and no leg. So he has a reason for the pain. You don't see the loss of his family. You don't see the loss of his home. You don't see that here today. You just see an injured worker, and this government has said that injured workers are a special interest group.
Injured workers want to be treated in the same manner they were while they were working: as respected members of the community. Currently the board is trying very seriously to implement the bill and injured workers are being told to apply for welfare. To be told to apply for welfare when we're going through a system right now, and especially when transition takes place -- why should an injured worker have to apply for welfare? Why should an injured worker be told to go to a food bank?
They have a viable injury, but the concern of the board is not the injured worker -- that's where they make their first mistake -- the concern is to keep the cost down.
The injured worker also has an unfunded liability. They have rent, they have mortgages, they have car payments, they have all the necessities of society. We have an unfunded liability as well. We've worked hard to maintain a standard of living, only to have it eradicated by Bill 99. Thank you.
The Chair: Unfortunately, we don't have time for questions, but thank you very much. I'm sure each of the members of the committee has appreciated your presentation today.
The Chair: I'd like to now call upon Evelyn King. Please come forward. Good morning and welcome. Please introduce yourselves for Hansard.
Ms Evelyn King: My name is Evelyn King. I am going to share my time with Beate, so I'll go first. I am an injured worker. My purpose in appearing before this committee today is to provide a face to injured workers and hopefully enlighten government members on the struggles that exist within the current workers' compensation system.
What happened to me could happen to anyone. I was employed with the Becker Milk Co at a job I thoroughly enjoyed. I had received my 10-year pin and had been promoted twice. I worked out of Kingston, covering a territory from Cornwall to Oshawa and points north. My job was to ensure bank deposits were made, prices were correct and store inventories were up to company standards. I was given a new car every two years and had use of the vehicle at all times, with gas and insurance paid by the company. I was a workaholic and was voluntarily on call every weekend in the event of a robbery or break-in at one of the stores.
On September 29, 1979, my life changed drastically. I was in a car waiting for a red light to change to green when I was rear-ended by another car which failed to stop. This accident resulted in my having a spinal fusion and screws placed around my spine for added support. I was in a full body cast for three and a half months following the surgery.
When the cast was removed I continually harassed the surgeon regarding my return to work. He finally agreed and I returned to full duties, except I couldn't drive for six months. The surgery and cast were traumatic enough for me to deal with, but I was not prepared for my dealings with Becker Milk or the Workers' Compensation Board.
When I returned to work, I was continually questioned on a daily basis as to how I was feeling. When I had a specialist appointment for a checkup on my back, I was told to bring a doctor's letter to confirm my appointment when other employees were not required to follow this criterion. My paperwork was questioned on numerous occasions but was found to be correct. Over the next few months I physically worsened and was having trouble walking, so the doctor took me off work. When I had been off work three weeks, I was mailed my separation papers after 12 years of employment. I phoned the personnel manager and asked him about relocation within the company and he informed me I was being terminated because I was a liability to the company.
Workers' Compensation then decided I was a candidate for retraining. I wanted to take a three-year course at St Lawrence College, but my worker informed me that my injury did not warrant the expense of this course. Instead, I was enrolled at a local business school, which I attended under duress. I told my worker I wouldn't learn anything at the business school because I already had knowledge of every course I was enrolled in. His response was to attend or lose my benefits.
During my attendance at this school, I once again physically worsened and had to complete my remaining subjects at home. When I completed the business school, I was admitted to the rehab wing at Kingston General Hospital, where I stayed for four months. Upon my release from hospital, WCB decided that I should be assessed at their Downsview hospital. I had that experience on two occasions before it was decided I was eligible for a 30% pension. I later applied, at my doctor's suggestion, for a higher percentage and was elevated to 35%. The board also informed me at that time that in order to receive a higher percentage I would have to have more surgery.
Up to this point, the process has been very demeaning. I have tried on many occasions to return to the workforce and hold a part-time job. I found when I mentioned to an employer during an interview that I was on a pension through WCB I did not get the position. I learned to be dishonest and not mention it. When I did manage to gain employment, I could only work a month or two before I became physically incapacitated and had to quit. My doctors have suggested that I do not work in order to enjoy some quality of life without relapsing.
I live with chronic pain. I have osteoarthritis in my back, neck and right knee. In the future I will require more back surgery and I was recently told I will be a candidate for a hip replacement -- not a lot to look forward to, but I try to maintain a positive attitude.
My story is trivial compared to some stories I have heard from other injured workers, but we all share the same day-to-day struggle to survive on a WCB pension. I fear that under the new legislation the stories will be tragically worse.
Contrary to popular belief, we do not ask to be injured, and it is difficult to survive, physically and monetarily. The corporate media have worked at developing the myth that injured workers are lazy and overcompensated. At the same time, Ontario employers enjoy WC premiums which are lower than those in two thirds of North American jurisdictions.
After reading Bill 99, I did not glean a sense of fairness towards the employees in Ontario. The government implies that Ontario will be the safest province in which to be employed. My perspective is that claims may be reduced, but injuries won't. Workers will have the option of filing a claim or retaining their jobs. There are too many areas open for employer abuse.
The elimination of the Occupational Disease Panel is very troubling. This panel provides invaluable research regarding occupational diseases and their causes. Workers will suffer and have no recourse to apply for benefits.
I am sharing my allocated time, so I will close with a final word to the Tory members. As you sit at Queen's Park, please consider the less fortunate and reflect on what you would do if you became injured. People feel that Ontario is crumbling. Your attack on health care, education, housing, social services and workers' rights have people fearful of the future. I suggest the Progressive Conservative government stop trying to rule this province and get back to the business of governing.
Mrs Beate Wildraut: My name is Beate Wildraut, president of the S-D-G centre for injured workers.
The Chair: Just a moment, please; I'm just checking. We thought we had you slotted for your own space at 2:50 this afternoon. Are you withdrawing from that spot?
Mrs Wildraut: No. We are sharing our time. But if you don't mind, I have a teenager who has written an essay. I would rather like to give her this time.
The Chair: That's fine.
Miss Nancy Wildraut: Hi. My name is Nancy Wildraut. I'm the daughter of Beate Wildraut. My mom is an injured worker; she has a bad back. She was injured in 1988, when I was about eight years old. Growing up with an injured worker is very hard because we had to learn to do more stuff around the house earlier than anything. We had to help out with the dishes, the cleaning, vacuuming, washing walls, washing windows. In wintertime my mom would have to stay at home while my dad took us tobogganing and skating, because my mom was always afraid of falling down and hurting herself again.
There were days when my mom couldn't get out of bed and other days when I had to help my mom get dressed in the morning. It made my mom feel really bad because she didn't want to count on me and my sister having to help her get dressed and stuff like that. As the years went on, we ended up doing most of the stuff around the house. We were doing things without even realizing it.
Now that I think back to everything that has happened, my sister and I had to mature faster because we had to deal with the stress of thinking: "When mom wakes up in the morning, is she going to be able to get out of bed? Is she going to have to go into the hospital and have surgery again?" It was always on our minds if that would happen. My mom always told us that she wanted to have children to love, not to be slaves to do all her stuff for her around the house. Living with an injured worker is very emotionally stressful and physically draining, because some days we didn't know whether she would be able to get out of bed. Sometimes I would cry and pray to God to give my mom a new back, because we knew she was in a great deal of pain.
All I hope is that people understand that no matter if the injured worker receives money or has an operation to help take the pain away, it doesn't do anything. Taking away a person's ability to work makes the person feel like shit because they have to depend on others for everything. If WCB is privatized, that will take away what pride injured workers have.
The Chair: Thank you. We have two minutes for each caucus, time for a brief question and answer, and we begin with the Liberal caucus.
Mr Gerretsen: Thank you very much. In all the discussions about injured workers, we don't often hear about how it affects the rest of the family. It affects much more than just the person. You've certainly indicated that in your presentation very movingly, and hopefully it will make a difference somewhere down the line.
One of the things I should say about Evelyn King to the other members of the committee is that she is extremely active in a number of different organizations here in the Kingston area to make sure that everyone's life is a little bit better. Evelyn, we all appreciate that.
You've pointed out a problem. I'm a lawyer by profession and I used to represent a fair number of injured workers in the appeal process. I was always amazed at how long it took to get hearings. A wait of a year, a year and a half, was absolutely nothing. Your presentation highlighted that, how you get bounced back and forth to the board for this, for that, for the other thing. How would you describe that feeling? I would imagine it was quite demeaning.
Ms King: It was. I didn't mention all the cheques that were late because doctors' letters got lost, that whole gamut. That's another story. But that's what goes on. When my doctors suggested that I appeal for a higher percentage, the old meat list they have -- I can't work, yet in their eyes I'm only disabled 35%. Some days I don't get out of bed.
Mr Gerretsen: So If we're talking about reform of the system, we have to reform the process so people get justice a lot quicker than they do right now in the compensation system.
Mr Patten: Those were very moving thoughts you shared with us. It dramatically demonstrates what happens to a whole family, that nobody is alone, that they have friends and families, sons and daughters, who have to bear the responsibility as well. I think it's important to bring up the human dimension, because that's what it's supposed to be all about. This is supposed to be providing support with dignity to injured workers. We're going the other way, in my opinion. We are starting to look at a system now which will be an insurance company. As any of you who have dealt with insurance companies know they're always trying to beat you down and give you as little money as possible for what you have lost through theft or whatever it may be, any accident claim. It happens all the time.
Anyway, I want to thank you very much for being here today.
Mr Bisson: Nancy, I appreciate your coming forward, because as most of we MPPs would know from the work we do in our constituency offices, we normally see the injured worker or their spouse; that's normally who we're dealing with. For the years I've been dealing with workers' compensation, I've always tried to come to terms with that whole issue. I come from a mining community; the injuries you see are often fairly traumatic. Even in cases where compensation is paid, there's a whole loss of pride issue that the worker goes through: "I was a big, strong individual. I was a miner," or "I worked in the forest industry. I can't work any more." They stay at home and it's pressures at home, fights at home; it sometimes turns into alcoholism, wife abuse, all kinds of things -- I'm not saying in all cases, but in a significant number.
It's not often that we get the chance to see the kids of the injured workers come in to tell their side of the story. That's something this committee appreciates. I'm sure it left an impact, and not only on me. It certainly left an impact on the government, because I was looking at a few of the members on the other side, who understood, maybe for the first time, that for an injured worker when we're talking about compensation it's not just about the unfunded liability; it's the human deficit that people talk about. Thank you for bringing that forward.
Mr O'Toole: Thank you very much, Nancy, for a very impassioned story and a true story, which makes it so much more real, and thank you to Evelyn. Starting with John and the last presentation, really important to me is to see and hear the injured workers. The advocate groups, whether it's for the employers or the union, organized or non-organized -- the individual stories are very important. It says to me that the system today and the anxiety -- Mr Gerretsen referred to it. I don't blame him for those delays, the year and a half for the appeals. Those aren't fair to real injury cases, those delays caused by --
Ms King: If you're talking about fairness, why don't you dump this bill? That would be fair: if you dump this bill.
Mr O'Toole: I believe the appeal periods and the periods for filing are shortening up the process, which would get the benefits to the injured worker quicker. That's what I personally want, that the injured worker get --
Ms King: They're going to get worse under this new bill.
Mr O'Toole: I just wanted to make sure that your story, Evelyn, was heard; the car accident in your duties of work. Your attitude: I can still see the sparkle of attitude towards wanting to work. That's still obvious. I believe you said your accident was in 1979. No one, on any side, takes any pleasure or any sense of purpose for an accident, an unexplained event --
Ms King: That's exactly what we're saying, and with this bill you're going to hurt more workers.
Mr O'Toole: I think there's a lot of language in this legislation about prevention.
Ms King: Oh, boy. You just don't get it.
Mr O'Toole: Nancy, there's a youth awareness program in the high schools and community colleges now about occupational hazards in the workplace. I think individuals need to more aware of potential hazards in the workplace.
Ms King: I think you need to go through the bill yourself. Maybe you might get the point if you injured yourself. Then you might understand what's going on.
Miss Wildraut: I have one last thing to say. I just graduated from high school. We did not learn anything in high school about safety in the workplace except for when I had my mother come into my business English class to talk about it. That's the only time we ever learned anything about health and safety. High schools do not provide that kind of education any more.
Mr O'Toole: That's just been introduced. But you're right: Awareness on both sides is important. The employer, who creates the safe workplace, has to take more responsibility, and the individual employee has to have the opportunity to know.
Ms King: Why will they, when in this bill they've got all the power? Workers don't have any power.
The Chair: Thank you very much. On behalf of members of the committee, we appreciate your coming before us this morning with your views.
Mr Bisson: Chair, I thought finally, after the last two presentations, that the government side was starting to get it, but it's pretty damned obvious that they're not.
The Chair: Mr Bisson, you're out of order.
CANADIAN AUTO WORKERS, LOCAL 222
The Chair: I call representatives of the Canadian Auto Workers.
The Chair: Mr Bisson, come to order, please. We have guests before our committee awaiting their presentation time. Would you please show courtesy to our guests.
I apologize. Welcome to the committee. We appreciate your coming this morning.
Mr Jim Freeman: First of all, we'd like to thank the committee for allowing us this opportunity to make the presentation. It's too bad we had to drive all the way to Kingston.
My name is Jim Freeman. I'm from Local 222 in Oshawa. I'm the chair of the political education committee. With me is Larry O'Connor; he's the vice-chair of the political education committee.
Mr Christopherson: And a former MPP, and a damned good one at that.
Mr Freeman: A little plug.
This submission is presented on behalf of the over 25,000 members of the Canadian Auto Workers Union, Local 222 in Oshawa. It is the view of the CAW membership of Local 222 that the changes proposed in Bill 99 are being driven for purely ideological and fiscal reasons, much like other changes that have been introduced by this government.
Ontario entered the automobile manufacturing age in Oshawa during the beginning of this century with the movement of the McLaughlin Carriage Works from Tyrone. With men and women working long hours in poor working conditions, injuries in the workplace began to happen. The workers of the day began to pressure the Ontario government to start protecting their family income due to lost-time injuries. On April 28, 1914, the Workmen's Compensation Act was passed in the Ontario Legislature. This legislation worked because, while workers gave up the right to sue an employer over an accident, in return they got the right to prompt and fair compensation. It was introduced because it was good for the working people of Ontario and made good business sense.
The roots of our local union began with the struggles from the late 1920s. Workers in Oshawa fought with General Motors to improve working conditions in the union's first negotiated collective agreement in 1937. These struggles represent our role in the history of organized labour, along with other unions across the province that worked with government to create minimum work standards for all working people in Ontario.
The base of industrial labour laws and regulations in Ontario has been achieved through a broad consensus that exists in advanced industrial societies. These laws have created an effective, equitable floor of employment rights that are feasible, while being both socially and economically beneficial.
This Conservative government views legislative standards, regulations and the various other roles of government enforcement as causing a stranglehold on people doing business in Ontario. We do not believe for a minute that our current Workers' Compensation Act or any other employment standards legislation has prevented businesses like General Motors from earning huge profits in Ontario. Bill 99 is nothing more than legislative tinkering with workers' rights, with the sole purpose of giving in to the demands of Bay Street boardrooms and the large multinational corporations in light of the changing global economic circumstances.
Our local has over 60 years of experience in helping and fighting for injured workers' benefits and legislative rights under current laws of the province. We view Bill 99 as an attack on the Workers' Compensation Act and the workers the original act was designed to protect. We hope this committee will draw on the decades of knowledge our local has gained as a result of representing workers who have been injured in the workplace.
Workers' Compensation has a proud history in Ontario, stemming from a deal more than 80 years ago in which workers gave up their right to sue an employer over an accident in return for prompt, fair compensation. Time will be the judge of how much damage this legislation will cause to the gains made over the course of the 20th century. To our membership of 25,000, this bill is obviously a Conservative government attack on workers' compensation benefits and the rights of injured workers. To add insult, this government is taking $15 billion from injured workers and giving $6 billion to employers in assessment reductions.
When Bill 99, the Workers' Compensation Reform Act, was introduced on November 26, 1996, Labour Minister Elizabeth Witmer said there would be province-wide public hearings in early 1997. We understood the government wanted these changes to take effect on July 1. Our membership is pleased that the deadline has been extended. This committee needs to start by listening to all the parties affected by this bill, then recommend it die on the order paper.
The details of the act make it obvious that this government enjoys putting spin control into the titles of its bills, like calling a reduction of employment standards the Employment Standards Improvement Act. This is no time for spin doctors or for your government to be in a hurry.
When the minister introduced the bill, she referred to the unfunded liability as one of the main reasons for the changes to the act. The fact is, the Ontario Workers' Compensation Board is very profitable, with a $510-million profit in 1995. The board currently has $8 billion in the bank and offers premium rates to employers that are lower than in two thirds of North American jurisdictions.
This committee and the public need to know that the unfunded liability is moving towards retirement without the changes being proposed in this bill. The reforms by the NDP government put an end to the crisis in WCB funding. Under the last government, the unfunded liability stopped growing and started to shrink. We feel that this is the result of good government controls being put in place, and under no circumstance should this pool of money be handed over to the private sector.
Unfortunately, before Bill 99 was introduced, the WCB assessment to employers was cut by 5%, effective January 1 of this year. This will add $6 billion to the board's unfunded liability; this is according to the government's estimates. If the minister is truly concerned about the unfunded liability, this assessment rate reduction must be overturned immediately.
Mr Larry O'Connor: Here are some of the areas that we find most troubling within Bill 99.
Right at the beginning, in the explanatory note, sort of the purpose clause: changing the name of the WCB to the Workplace Safety and Insurance Board, eliminating the word "compensation." This change drops two very important words, "worker" and "compensation." Does this government really have a problem recognizing the value of our workers? Does this government not believe in compensating the value of these workers when injured on the job? No more mention of workers; no more mention of compensation.
Part II, section 6: This is problematic because we feel the safe workplace associations will be strictly a tool of the employer. They would have the power to determine who sits on joint health and safety committees, the frequency of meetings, the inspection schedules and, most unbelievably, they may even be subjected to fewer, if any, Ministry of Labour inspections.
Part III, section 12: This takes away the right to compensation for occupational stress that is not caused by an unexpected traumatic event. The only recourse for a worker in this situation may be to go to court. The original act was created to eliminate the need for workers and employers to go to court. Now it looks like the recommended choice by this government is back to the courts. We suggest that this section of the bill does nothing but allow employers to harass and intimidate workers.
Part III, section 13: This cuts off workers' compensation for chronic pain after the "usual healing time," whatever that is. Never in Ontario's history has a government been so willing to all of a sudden start prescribing where the doctors prescribe. Never has there been one so willing to second-guess the physicians of this province. People are going to notice the infringement of medical confidentiality, requiring injured workers to consent in advance to release of their records. This appears to be the starting point of another government-created meat chart through regulations we haven't seen. Our fear is that the employer will force the injured worker to return to work before an appropriate healing time. The heavy assembly line work that our members do in Oshawa, for example, at General Motors, shouldn't be compared to other work.
Part V: This section of the bill is missing subsection 103.1(3) of the old bill. This included the templates of best practices. In the past, employers were evaluated on a regular basis as to their prevention programs and return-to-work practices. This change appears to make it more profitable to skew statistics than to prevent accidents. Is this part of the government's overall plan to make Ontario the safest place on earth, on paper only?
Part VI, subsection 43(2): This cuts benefits to 85% of net average earnings from the current 90%. How can this government expect a worker injured in his or her workplace to take such a large cut in benefits simply to allow this Conservative government to give a generous kickback and financial break to the employers, the companies?
Part VI, subsection 45(2): This will slice retirement pensions in half, because the WCB contributions are being reduced to 5% of the worker's pension from the current 10%. While future income of workers is limited because of workplace injuries, now this government is planning to dip into their pensions. These changes can have the effect of forcing the very vulnerable to live on a pension reduced by half, which will force many to accept social assistance benefits at age 65 so they can have something to live on. This is simply another way of offloading to the taxpayers, the municipal taxpayers in this case, because this cut is going to affect social assistance.
Part VI, section 49: This reduces the cost-of-living protection for almost all injured workers, including older unemployed injured workers who currently have 100% inflation protection. The new indexation formula will be half the consumer price index minus 1%, with a cap of 4%. This means that if inflation is 4%, the pension will increase by 1%. This also means that younger disabled workers will see their purchasing power go down very rapidly. In the 1994 round of reforms to the WCB, changes to indexing meant more money to the most vulnerable injured workers. More than 45,000 of them got an extra $200 a month, which helped lift many of them out of poverty. Injured workers with 100% disability, as well as spouses and children of workers killed on the job, will still have full inflation protection. For that small allowance, I guess we're grateful.
Part XI, section 114: This limits the ability of the Workers' Compensation Appeals Tribunal to provide justice for injured workers treated unfairly by the board. This committee has heard or will hear from many elected representatives of the CAW and other unions that these people have had to make presentation after presentation to WCAT on behalf of injured workers. This is the only recourse for injured workers, and unfortunately many of them aren't aware of the WCAT process until a major problem with their claim has arisen. A 30-day limitation will be a major problem. We don't feel this government has given the working people proper notification of the effects of this amendment which will limit the independence of the Workers' Compensation Appeals Tribunal, making it harder for injured workers to get justice if they are not treated fairly by the WCB.
Parts XII and XIII abolish the Occupational Disease Panel, with its responsibilities handed back to the board. The bill describes the running of the board, but the work of this most important panel is not included. This committee needs to recognize that the reason this panel was originally set up separately was because the board didn't have the credibility to do the independent research looking into occupational diseases. The panel is respected internationally, and appeals have been coming from around the world in letters and articles in specialized journals calling on the government to save it. We can't believe this Tory government would get rid of this respected agency.
We have some recommendations, and I don't think you often get recommendations at this committee, because most of them are telling you just to scrap it.
(1) Our number one suggestion is that this bill die on the order paper, and then start over again with meaningful consultation.
(2) Any future legislative changes should only happen after truly public dialogue. Hearings need to be an exchange of ideas and knowledge so that future changes are made in the best interests of all affected parties, and in that case it means people.
(3) The concerns about the employers' assessment rates and the unfunded liability means that the assessment rate reduction which has already been put in place needs to be overturned immediately.
Mr Freeman: We just have a bit of a closing statement too. In the past when a government planned reforms to labour legislation, they were usually endorsed by the Ontario Federation of Labour. This happened because the government would start with a meaningful consultation process. The government needs to hear the message that taking money from injured workers and lowering incentives for employers to make workplaces safer is no way to make Ontario a better place to live. Reforms in the past were based on negotiations between business and labour. This government has shut workers out of the process.
We view this WCB legislation as just part of a coordinated attack on Occupational Health and Safety protection for workers in Ontario. The labour minister has announced plans for a full-scale review beginning this fall of the Occupational Health and Safety Act, and we know what that means: Employers want to attack the right to refuse unsafe work.
This is the Tory agenda: Lower the standard of living of working and middle-class families and reward your friends. This government doesn't have the courage to just call it like it is -- ideology -- so the minister throws up a smokescreen, talking about return-to-work incentives, prevention, self-reliance, that kind of thing, but smokescreens don't always work.
The Chair: We have time for a brief question and answer from each caucus, and it is brief, please, beginning with the third party.
Mr Christopherson: Thank you very much for your presentations. Welcome back, Larry; good to see you always. I want to go to something we haven't yet talked about, I don't believe, other than -- oh, we did on the opening day, but we haven't returned to it since.
You talk about occupational stress. I think it's really important for us to listen to what some of the employer consultants are saying about occupational stress. You say in here, and rightly, "The only recourse for a worker in this situation," meaning eliminating it from the law, "may be to go to court." We all know that going to court is not a winner for working people because of the time it takes, the money it takes, and they can't afford the loss in income. But the employers, at least their high-priced consultants, are worried about this too. They're making a recommendation that stress be included and then limited so narrowly that no one would qualify.
The reason for that is they want to take benefit from the part of the law that prohibits working people from taking employers to court, and they could possibly, if stress were eliminated from the law, because you could argue, "It's not part of the compensation package, so yes, I'm going to take it to court." The plan is to ask the government to include it so it's part of the "No, you can't sue" rule, but then make it so tight that no injured worker is going to get through. I appreciate your raising it this way, because we need to keep an eye on that and see if that amendment comes through from the government. That's an argument being made to them.
The other thing I'm really glad you raised -- you can tell you've been around, Larry; it all shows -- is that you're mentioning the name change. We haven't talked about that enough. It does take out the words "worker" and "compensation." They want to put this in the world of insurance is what it looks like to us. We know they want to privatize it. Whether they do it right away or a little bit at a time, that's their goal. They want to privatize everything in the public sector, this one because there's big money for them. The fact that they take out the word "compensation" starts to bring in the insurance rules. This is a separate set of rules; injured workers need to be treated differently from any kind of insurance plan. It looks to us like the name change is meant to do that. I would gather you have raised that in here to make that point yourself.
Mr O'Connor: In fact, if you look at the dollars element of this and taking it out of government involvement, I don't think the banks need to play with any more money right now, frankly. They've got enough money and they're making enough profit. This money belongs to injured workers, and that's where it should stay.
Mr Hastings: Thank you very much, Mr O'Connor, for your interesting and intriguing presentation. Unfortunately, it starts with the wrong analysis as to our motivation and everything else that you've laid out.
For example, you say in the brief -- and I've seen it in so many other briefs from representatives of the labour movement, whether a local of auto or steel or communications, energy, what have you -- that the WCB is one of the most profitable companies in Ontario. I'm completely mystified as to how you could figure out that it can be profitable if it's losing money. However, be that as it may, it is a monopoly that collects a huge amount of assessment, over $2 billion a year --
Mr Bisson: What part of mathematics don't you understand? Do you need a computer?
Mr Hastings: Madam Chair, do I have the floor? It would be interesting if for once, just for once, the member from Timmins could lower his voice, relax a little -- the stress levels must be getting to him completely -- and allow other viewpoints to be heard.
Mr Bisson: It's a job of stress to endure this government.
Mr Hastings: You see? This is what they define as democracy. When you make viewpoints that are opposite to theirs, there's a complete lack of acceptance of certain realities.
One of the realities I would like to ask you about is why, under this submission and others from your locals, you are so willing and so passive in accepting, for lack of better words that fail me, the completely unsuccessful current arrangement for job placement with the vocational rehabilitation people that we have had for the last, oh, I guess 30 or 35 years, where they've tried to make different arrangements either on a voluntary or on a mandatory reinstatement clause to get injured workers back to work.
I'd also like to know how you can construe your rhetoric to say this bill is an attack on injured workers. When we look back to when you were an MPP and look at the actual report of such a marvellous organization as the WCB -- which you are defending as the status quo, which you accept so much -- and you look at the unfunded liability or whatever you want to call it and deny that there isn't under this existing act, which we want to amend, an obligation on the part of society to help injured workers to pay for their existing pensions for future total temporary compensation and all the other arrangements.
From 1995 --
The Chair: Briefly, Mr Hastings.
Mr Hastings: Actually, from 1995 right back to 1986, this organization, which you call one of the most profitable --
Mr O'Connor: We didn't say that.
Mr Hastings: Well, it's right in the brief. This thing is in fact running a deficit, which is not just financial, economic, social but is a human deficit when you jeopardize all the future employees of this province who could get injured in the workplace of this province. Your comments, please.
Mr O'Connor: Thank you very much. I was hoping I was going to have an opportunity to respond. First of all, I'm not saying the job placement elements are the best there are in the current legislation, but I don't see a heck of a lot of improvement here. Where's the improvement in what you're presenting? It isn't here.
You say they're not making any money. Well, $510 million may not be a lot a money for the government, but for injured workers that would go a long way to helping a heck of a lot of people. The year before, what was it, about $490-something million? That's a lot of money. It may not be the most profitable corporation in Ontario, but that ain't bad at all.
I'm not calling for the status quo. If you read the recommendations we've presented, we're suggesting that there be meaningful consultation. These people want to talk to you. These people want to have a voice. Go around the province and listen to them.
Mr Gerretsen: I like your third recommendation. If there's such concern in the government about the unfunded liability, why are they giving employers a rate break? It's a little bit like the other one, which follows right on top of that and which really drives this whole government: If they're so concerned about the deficit and debt in this province, why are they giving a tax cut? That's one I've never been able to understand.
I think we're overly concerned about the unfunded liability. We used to get this all the time at the municipal level as well. It is not as if at any given moment you have to pay out all of this money. That is just a total smokescreen, and governments of all types will use it whenever it suits them. They're certainly trying that on that side.
Mr Patten: This has been said many times, and I'd like to underline your concern. In response to Mr Hastings's question, I think the injured workers have been saying, "Why didn't you talk to us?" I have never heard any of them say, "We don't want any changes to the Workers' Compensation Board." People have said, "These things are taking too long."
In my opinion, had the government sat down at the beginning and said, "Look. This is the Workers' Compensation Board" -- obviously the first people they should be speaking to are injured workers, asking, "How can we improve this?" They never did, and I think that's part of the problem, that they just spoke to employers. Do you agree with that?
Mr Freeman: Yes, we agree with that. In our local union we employ three full-time reps we pay out of our dues to represent injured workers at WCB. They realize there have to be changes. There's never going to be a perfect system and someone is always going to come up with new ideas to make the system better, but it's got to be made better for injured workers, not for employers. Employers are the ones who are causing the injuries. People don't go out and get run over by a train or anything else on purpose; people don't do that on purpose. That's why they call it an accident. If their workplace has caused them to be injured, they should be protected and their employer should pay -- as simple as that.
Our local union probably pays out $150,000 a year to representatives to represent people at WCB. Why? Because the employer fights every single case. Now when a person is injured they fight every single case. We have people now who are injured who don't even bother applying for WCB. They go on sick and accident benefits because it's easier, there's no hassle. They don't have to wait six months to get their money; they get it the following week. Mind you, down the road, three or four or five years, if they can't work any more they're out of luck. That's what it's coming to in this province.
The Chair: Gentlemen, thank you for coming before the committee with your advice this morning.
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS, LOCAL 93
The Chair: I call representatives of the United Brotherhood of Carpenters, Local 93.
The Chair: Mr Bisson, kindly do not interrupt.
Mr Sean McKenny: Good morning. My name is Sean McKenny. I'm the director of training and programs for the United Brotherhood of Carpenters and Joiners, Local 93, in Ottawa. With me is Mr Doug Perrault, who often provides me with assistance in matters relating to health and safety and workers' compensation.
Changes to any law or laws or the implementation of a new law or laws that govern the people must, without question, involve a thorough and comprehensive exploration of the effects those changes or implementation may cause. The purpose to any change or any implementation of law must be directed to bettering that which presently exists. That betterment cannot be solely focused towards one select group whereby another group is left with an effect that will most assuredly cause devastation.
The workers' compensation system must be reviewed; it needs to be reviewed. There is absolutely no question about that. That review must be a thorough review, where those directly affected are all part of the process. These hearings are an example of addressing the needs of one group; otherwise, those others who tried to be part of the process would not have been excluded. Still others, such as our organization, from a major city within the province, would not have to travel two hours to make a presentation. Kingston is a wonderful city; I didn't mean it that way. This government may use the term "review" in this instance, but we maintain that what is meant is, "We're going to do what we're going to do."
The underlying principle behind workers' compensation is to compensate workers for lost earnings as the result of work-related injuries and diseases. In exchange, workers relinquish the right to sue for workplace injuries. This is done through an employer-funded compensation system, although it could be argued that the system is not solely funded by employers, as the employer most assuredly takes his premium into account when negotiating wages. All of this is common knowledge, yet so common that it's often forgotten.
I look out among you and wonder how many have been on workers' comp in the past, especially this side. How many of you have lost a finger, a hand, wrenched a back so bad where the pain is so unbearable that surely to God death would be better, or had occupational disease or witnessed a fatality in a workplace?
Someone you all know very well said in a speech he gave at a conference I was attending in Vancouver that he questioned how anyone could make an informed decision or formulate an accurate opinion if they have never put on the shoes of those whom that decision or formulated opinion most affects.
Bill 99 is certainly reflective of the above. Proposed changes, and I am coming to those, do nothing to enhance the system. I take that back. As I noted above, that enhancement is directly aimed at one at the expense of so many others.
The unfunded liability issue is one you've heard before. I'm not going to spend a lot of time on it, not because of its order of importance but because it is the underlying rationale this government has used to introduce the bill we're here about today. Yet we still maintain that the government's numbers don't add up and that if the present system was kept exactly as it is today the unfunded liability would be nil by the year 2014.
The bill provides that the worker must fill out a specific form to commence their claim. At present this can also be done by the worker's doctor and/or employer. In our sector, as in others, a varying degree of education levels and linguistic patterns exist. Some can't read or write. Some speak languages other than English. Will they be so intimidated by the paperwork that they don't bother? The simplicity of the paperwork has no bearing. Add the intimidation factor that's possibly created if the worker has to get the form or the paperwork from the employer.
The determination of average earnings must be re-examined when it comes to the construction sector. It makes absolutely no sense. If an employee is working at a negotiated wage rate, he or she must be compensated according to that rate and not -- I'm going to repeat that for all of you -- not what he or she had earned prior to that over a predetermined time.
Return-to-work provisions as outlined in subsections 41(1) and 41(2) do nothing for the construction sector, an apparent prejudicial omission that once again attacks the fundamental right to work that we as a people have.
I'm going to change gears for a moment. As I noted earlier, the importance of having worn the shoes of someone who has been there becomes important. I've been there; a lot of people you've heard from have been there. To hear is one thing, but to actually be there is something else. When I read this, it's from someone who knows, someone who's involved each and every day with individuals who are on compensation or who have been on compensation.
I was injured at a workplace and I've experienced the employer phoning me at home and asking me not to report the injury to compensation, telling me in effect: "Sean, stay at home. We'll courier your paycheque to you each and every week. Sean, don't report it." I've been in the situation after that injury where I returned to work, on a megaproject in the city of Ottawa, when I was working with the tools then -- it was a megaproject to last at least two years -- only to be fired the very next day after I returned. Grieve, complain, take it before a board or tribunal: For what? Never to be hired by that employer again? That's what our sector is about.
The bill adopts the use of the term "policy" in several instances. If policy in these instances has yet to be created, those same polices, which are administrative policies, will undoubtedly be elevated above the act. The act then in some instances, and because of the vagueness, becomes secondary and administrative polices become the primary governing legislation, negating the need to enact further legislation for change but simply to adopt an administrative policy to make that change.
The government's understanding of workers' compensation and the people it affects is made clear with the bill's mention of the reduction in benefits from 90% to 85%. The reasoning behind the changes, as they have been quoted, is to entice workers back to work and not have a system that makes it all too comfortable for those receiving benefits. This government and others, some others, must realize that 99.9% of us want to work. We want to work. This reduction, along with other changes, will simply pass costs from the province to municipalities and/or cities and other areas.
The construction sector has long lobbied governments around the issue of the underground economy. Bill 99 threatens to contribute to that economy by adding to the billions of dollars that are lost to governments and legitimate businesses each and every year.
In closing, I wish to thank the committee for allowing us the opportunity to speak this morning and leave what we think is a very important message to this provincial government. Gentlemen, as workers, as employers and as governments, we must work together. We must create an atmosphere that allows Ontario -- I'll say it -- to be truly open for business and not solely open to those in business.
The Acting Chair (Mr W. Leo Jordan): Thank you very much for your presentation. There will be about three minutes for each caucus, starting with the government.
Mr Maves: I want to say that the compensation system is something that has been looked at for years now. I'm sure your local, perhaps not you yourself, was around when 162 had public hearings and 165 had public hearings and had input into the royal commission. Input which was compiled to that point was taken into consideration. I don't know if you were someone who made a submission or returned a submission to Minister Jackson when he did his report on workers' compensation, but there was input there. And this is another way of getting public input, these public hearings. So I would argue that there has been quite a bit of input over the years on the compensation system.
You touched on the unfunded liability and questioned whether it's a problem or not. We had someone yesterday questioning it and comparing it to a pension fund. If it were a pension fund, as soon as it had an unfunded liability, they would be forced to put a plan in place to retire that unfunded liability, much the same as Bill 99. Under the Insurance Act, if they had an unfunded liability, that would be wound down. The federal insurance regulator would step in and wind it down.
The Provincial Auditor said it's a problem. The Liberals in their red book have said it's a problem. The NDP attempted to address it with 165, Minister Coppen saying, "We have to get the unfunded liability under control because it threatens the while system."
I think there's a large degree of agreement that the unfunded liability is a problem. It's still a problem, and the bill is attempting to address it.
Getting the form from the employer: I still disagree with the contention that continues to be made, because there's nothing in the bill that says you have to get a form from the employer.
Right to work: You said that the government made an omission and ignored the construction industry.
Mr McKenny: Right to work is not a term --
Mr Maves: Return to work. Subsection 40(3) says: "Employers engaged primarily in construction and workers who perform construction work shall cooperate in a worker's early and safe return to work and shall do so in accordance with such requirements as may be prescribed."
The construction industry was expressly recognized by that section as being different, as having different challenges with return to work. I can assure you, as I've assured other construction trades councils, that COCA, the construction trades council and the Ministry of Labour are currently working at developing those regulations.
Those are some of the things I picked out from your presentation that I just wanted to comment on.
Mr McKenny: Can I respond to that just briefly, and I'm going to pass some of this over to Doug? I'm doing most of the speaking. In the first instance, one thing we've all noticed is the present government's attempts, falsely the majority of times, to portray themselves as being open and accessible to a lot of the people and a lot of the groups. My understanding, and you jump in here if I'm wrong, is that somewhere around 1,200 people applied for standing. I'm from Ottawa. Ottawa is a big city. I mentioned before that Kingston is a very nice city and I'm glad to be here in that respect. But it's just mind-boggling: How come something didn't happen in Ottawa?
Let me finish. You had your opportunity.
Mr Maves: I didn't say a word. You did invite me to jump in, though.
Mr McKenny: If there were 1,200 people and yet only a handful of people were selected to actually make presentations, I don't call that open. I suppose we have quite a difference of opinion on that.
Mr Patten: Thank you for your presentation. I come from Ottawa too so I know the problem. We don't have enough days to be able to meet. We've said every time we've met that we wanted more time to do so, so I'm with you on that one.
You've identified a variety of areas that throw up obstacles. Is there anything in this bill that you see that facilitates the recipient of any form or aspect of compensation with dignity?
Mr McKenny: I have to answer that I don't. It's not a good bill. It does not do a lot to help workers in any way at all. In fact, what it's doing is driving a further wedge into an already existing blockade between employers and employees within this province. That's unfortunate, but perhaps it's part of the present government's overall objective. I don't know.
Mr Patten: Sean, when you talked about your own personal experience, about your employer suggesting that you not report your accident, do you think this bill will tend to alleviate employers doing that or do you think this will exacerbate it?
Mr McKenny: Oh, man, it's going to make it so much worse. It's scary, it really and truly is scary. There is not in our sector a lot of work these days; it's picking up to some degree, but there's not a lot of work. People who get jobs are hesitant to complain about anything because they know what the outcome of a complaint is going to be, especially when it has to do with worker's comp, and that is a pink slip.
Mr Christopherson: Thank you very much for your presentation. I want to ask you about process, because it comes up everywhere we go in terms of the lack of input. You're right, we should be in Ottawa, and if the parliamentary assistant wants to say today that we'll go off to Ottawa, I'm prepared and I'm sure my colleagues in the other opposition party are quite prepared to pack up tonight and go to Ottawa tomorrow and hold some hearings. For that matter, let's keep on going next week and the week after and give everybody an opportunity to be heard.
Six days is all they set aside. It needs to be on the record: Bill 49 was changes to the Employment Standards Act, and for those workers who don't have the benefit of a union, as you know, the Employment Standards Act is the workers' bill of rights. That's all that's out there. Without that, they've got no protection. This government introduced Bill 49 and said it was minor housekeeping changes. That was so patently untrue that we shamed them into public hearings: Four weeks they agreed to on a bill that they said was minor housekeeping. But because they got beat up so bad, when they brought in their attack on injured workers, Bill 99, they only gave it six days. It's absolute BS when they say that there has been all kinds of input.
This government takes pride in the fact that they killed the royal commission, which was a public process, which gave everybody an opportunity to have input, and they killed it. I'd like to hear your thoughts on the difference between the royal commission continuing its work versus the six days this government has offered.
Mr McKenny: I just want to add one thing and then I'll let Doug answer that. I want to make one thing clear in regard to this presentation. Our international general president made reference at a conference that when the United Brotherhood of Carpenters speak, they in fact speak for not only the unionized sector but the non-unionized sector as well. You guys keep that in mind. It's not just the unionized sector we're making the presentation for; it's for the non-union as well. It's for the people.
Mr Doug Perrault: Just further to a couple of points:
I have in my hands here a petition we've brought along, with 150 more names of people who have asked for public hearings in Ottawa. I'll leave that with the Chair.
Some of the things that Mr Maves brought up -- he was talking about the construction trades. Whenever we make a presentation like this, we seem to be targeted for being picked up on mistakes or that we're not clear on something. I'd just like to point out that the construction trades -- that only applies to 20 or more people in the workplace, where an employer has 20 or more employees. Most employers either have a lot less than 20 or are subcontracting out the work, so all these people are going to be excluded anyway. To talk both sides of the fence and say, "We've looked at the issue" -- really, you haven't, because all these people are still excluded.
We've touched on the public hearing issue.
I think we're missing the point on the real issue of these forms. Language is a big issue in the workplace. We've just had the best program cancelled by the government which looked at literacy in the workplace. We have a real problem with intimidation in the workplace. A lot of the construction trades are new immigrants to Canada; they're not really sure about what their rights are; they've never gotten any training in it. We really need to understand that a lot of people are going to be excluded from comp just because they're too afraid to fill out the forms or know how to do it.
The Acting Chair: Thank you very much.
NORTHUMBERLAND COMMUNITY LEGAL CENTRE
WORKERS' COMPENSATION CLINIC ADVOCACY GROUP EAST
The Acting Chair: Will those representing the Northumberland Community Legal Centre please come forward.
Mr Garth Dee: My name is Garth Dee I'm a lawyer with the Northumberland Community Legal Centre. The Northumberland Community Legal Centre is also part of the Workers' Compensation Clinic Advocacy Group East, and with me today is Gary Stein to speak on behalf of the workers' compensation advocacy group.
In addition to being a lawyer with the Northumberland Community Legal Centre now, I'm a former director of benefits policy at the Workers' Compensation Board and I've been employed as counsel with the Workers' Compensation Appeals Tribunal and written extensively on workers' compensation.
I wish to focus on two elements here today that may not have got as much attention as some of the other matters. This has to do with, what is the actual state of affairs of the WCB's finances? I want to take you through some of the aspects of that financial reporting. Second, I want to take about the effects of change, just change itself, not these particular amendments in detail, but I want to talk about that. The advocacy group will talk about the impact of these changes more particularly on injured workers.
Perhaps the one thing I want to dwell on the most is that when you look at the balance sheet of the Workers' Compensation Board and you look at how they report the value of their investments, it's important to realize that the WCB does not report the value of its investments on its balance sheet at their market value. They report them at what they know as their carrying value. In the notes to the financial statements, it explains what the difference is between the market value and the carrying value.
At the end of 1996, the market value of the assets was $1.476 billion higher than the carrying value. I think we all agree that the best way to value something, especially financial assets, is what the market will bear for them. It's important to realize that the balance sheet as it presently is underreports those assets by close to $1.5 billion. Not only that, but there's been a huge increase in the discrepancy between the market value and the carrying value over the last couple of years; that difference between the two of them has been growing dramatically. I want to go through with you what the effect of this is, not only on the balance sheet of the WCB but on the annual income statements of the WCB.
If you start with the balance sheet and you deduct $1.476 billion approximately from the unfunded liability, you'd find that the unfunded liability is about $8.99 billion and not $10.46 billion as reported at the end of 1996. You'd also find that if you took the 1987 unfunded liability of $6.691 billion and escalated it by the consumer price index, that unfunded liability in 1997 dollars is $8.66 billion. So you can see that between 1987 and 1997 the unfunded liability has remained virtually the same in constant dollars.
I'm not saying that's not a problem that needs to be dealt with. I am saying that it's not the runaway financial crisis that it's being played up to be. It's important to realize what dollars we're actually talking about.
I want to take a look at the market value and its effect on annual income statements, particularly those assets that don't show up on the balance sheet and don't show up on the annual revenue statements. On the top of page 4, I've put the carrying values and market values of the WCB's assets and investments. In 1994, the difference between those two values was $389 million. By the time you get to 1996, the difference is $1.476 billion. You can see that growth going up dramatically in the discrepancy between the actual value and the reported value.
If you start to put those unreported increases into the annual income, and I've done that in the second chart on that page, you can see that the operating surplus in 1995 was not $510 million; it was $1.086 billion. The financial position of the board in 1995 improved by over $1 billion, almost $1.1 billion. In 1996, it improved by $943 million. The scale of these numbers needs to be appreciated. The WCB made more money in 1995 and more money in 1996 than any other organization in the province: banks, major corporations, anybody. They're at the top of the pile.
The second aspect is the reporting of liabilities. In the reporting of liabilities, the board has to use what is known as the discount rate to calculate future liabilities. I won't review exactly what the discount rate is. I hope by this stage in the proceedings everybody is familiar with what a discount rate is. If not, I suggest you go learn it. I'm not being flippant here; I truly hope you understand how the board calculates its liabilities.
It's calculated on a 3% net rate of return; the board expects to make 3% more on its investments than the rate of inflation. If that number goes up, the liabilities go down; if that number goes down, the liabilities go up. If you look at the board's actual rate of return, 10-year averages, as reported over the last three years, and this is reported above inflation, it is 8.3% for 1993, 7.0% for 1994 and 7.2% for 1995.
If you look at the discount rates used by other workers' compensation boards -- I obtained these numbers from the British Columbia Workers' Compensation Board, which just recently did a survey of these numbers -- you can see that the discount rates range from 3% at the low end up to 4.75% and 6%, with a fair number at 3.5% or 4%. I believe it is completely fair and legitimate for people to question the board's use of a very conservative 3% rate to calculate the discount rate. It is fully justifiable to do what other compensation boards have done and raise that discount rate to 3.5% or 4%.
Knowing exactly what the impact of that would be on the board's reported liabilities is impossible for someone who doesn't have access to the board's actual liabilities, but based on the numbers associated with the changes when the Friedland formula was brought in, in my submission I believe about $1 billion could be knocked off the unfunded liability by a change to a discount rate in the 3.5% range. However, I fully acknowledge that's a guess, without access to the board's actual liabilities.
The final thing I want to mention on that is that if you use a discount rate that reduces the unfunded liability by $1 billion, you're at an unfunded liability of about $8 billion at the end of 1996. Again, I'm not saying that's not a problem that you might want to deal with; however, it's not the disaster that people have been talking about. The funding ratio of the WCB, based on an unfunded liability of $8 billion, is approximately 54%. It's not the 37% that's widely bandied about.
Finally, the other thing that's always mentioned in this alleged crisis over the WCB is that average assessment rate of $3 per $100 of payroll. That is a completely unjustifiable figure to be bandying about. You need to look at, what does it actually cost employers? You need to take a look at the net assessment rate once rebates for experience rating are included, and that number is around $2.53 per $100 of payroll.
The second topic I want to deal with very briefly, to leave some time for Gary, is the cost of change. The WCB has been a system in turmoil for the last 10 years. There have been five major changes in the governance of the board. Those changes have come along with changes to the senior administration of the board. I ask you to take a look at the annual report from 1990 and just X out the faces. They're all gone. There's nobody left from the senior management of the board, nobody left on the corporate governance level of the board. They've gone through major legislative changes. They've gone through major technological changes. All those things are tremendously disruptive. You would not find a major corporation anywhere that could survive those types of changes and that type of turmoil.
The changes to the benefit structure that are being proposed I would submit are change for change's sake. I'm talking here about doing away with FEL and temporary benefits. There was a major change in 1990 when this system was introduced. It took a long time for people to adjust. It took a long time for the board to adjust and it took a long time for employers and workers to adjust to this new reality.
If you look at the numbers, and I suggest you do this, if you go from 1990 to 1995, in each and every year, according to the board's own numbers, the percentage of permanently impaired is down, the percentage of the permanently impaired who are unemployed is down, the cost per injury is down, and it's consistent. It's year after year since 1990. What you're doing is taking that whole system and throwing it up in the air. It's change for change's sake by eliminating those terms.
I realize there are some small problems -- there are some very large problems -- with the way FEL operates, but this kind of wholesale change, without studying why we are here in the first place -- this isn't the first time what you're proposing now has been proposed. When Weiler first looked at this, this was the system he proposed. When he heard the submissions, he changed. He said: "Let's not do an open-ended process where it's review year after year. Let's set in fixed review periods in order to get the WCB off the backs of injured workers, in order to lessen the administrative burden."
The reality is that fixed review periods drive re-employment and drive rehabilitation. There's a very positive aspect to the determination of FEL benefits that we referred to as D-1 and then the review at R-1. If you're going to propose to take away those review periods and put an open-ended system in place, you better take a look at, how much re-employment are we going to lose and how much are we going to drive up the cost of benefits?
What you are proposing is dangerous, is going to throw the board into further turmoil, is going to throw all of your stakeholders into further turmoil to get an understanding of, what does this new law require us to do? How do we adjudicate it?
My point here is you've got some goals. I don't necessarily agree with those goals in terms of cost containment and assessment reduction. But even if you have those goals, this is a very dangerous and a very stupid way to go about doing it because it creates even more turmoil within the system than already exists and it puts us further in a hole in making the WCB almost impossible to understand for anyone who comes into contact with it.
Mr Gary Stein: My name is Gary Stein. I'm a lawyer at South Ottawa Legal Clinic. I'm here today presenting on behalf of the 14 community legal clinics serving eastern Ontario, everywhere from Orillia to Renfrew county, from Durham to Hawkesbury, including Cobourg, Peterborough, Perth, Ottawa, Kingston, Belleville, Cornwall and others.
All the lawyers at all the clinics represent injured workers as well as provide other types of legal advice. I had hoped to bring some of my clients with me to these hearings but, as you all know, this committee decided not to sit in Ottawa and has not provided an explanation for that.
I have provided this committee with a written presentation on behalf of these 14 legal clinics. What I want to touch upon here are the most dramatic and drastic changes as far as we're concerned, and I'll try to be brief. In short, our position is that the legislation offers no improvements for injured workers to the system which currently exists. What it does is take existing rights away.
Let me summarize some of the key points in the written submission.
First of all, with respect to the overall claims process, as you've already heard here today, it will complicate matters; it will not simplify matters. One simple point, requiring workers, in addition to employers, to actually file a claim will certainly prevent some workers, perhaps many, from filing. This government has already heard from the Ontario Medical Association. I want to just quote something they told this government about a "disturbing and increasing trend" -- those are their words -- shown by their survey of doctors that 51% of doctors who had recently had a request by a patient who had presented, and this is a quote from their survey, "what clearly appears to be a work-related injury yet requests the physician not to report to the board, apparently at the behest of the employer." That's the doctors telling this government that, the way it works now, people are nervous and some will not report. What you are advocating will simply increase that.
Secondly, let me turn to the rehabilitation measures. Currently the statistics regarding return to work are not great, but this system you are proposing will not improve those numbers. For example, subsection 40(2) makes employers responsible for determining a worker's functional abilities. Something the WCB is now charged to do is being turned over for the employer to determine what the functional abilities of a worker are after the injury and how they can place them back into the workforce as quickly as possible.
Without going into all the details of the rest of those provisions, I just want to state that there's a very fine balance between getting an injured person back to work and forcing an injured person to return to work before the injury has properly healed. Our position is the legislation emphasizes one thing, getting a person back to work right away, and basically providing that injured person with as few supports as possible that would return them to work.
I want to turn to the inflation protection section because I'm extremely concerned about this and I haven't heard much about it today. The inflation protection that is being removed, in the government's own estimates, from your cabinet's arguments, will take $9.3 billion out of the pockets of injured workers over the next 17 years. That includes injured workers who are currently receiving pensions and injured workers who are currently receiving future economic loss awards.
The only workers who are protected from the effects of this reduction of inflation protection are those receiving 100% awards for their income loss. I've obtained from the WCB itself those statistics and they have advised me that there are currently 99.7% of all workers who are not in that category. As of 1995, there were a total of 529 injured workers out of 169,000 injured workers who are in that category. So essentially 99.7% of injured workers currently receiving pensions and FEL awards and all future workers will have money drawn out of their pockets by the inflation protection measures. That is one significant major cost that this government is imposing upon injured workers.
Why? You've heard the numbers about surpluses and profits and my friend Mr Dee has demonstrated how the WCB's own numbers underestimate the actual surplus. Let's just, for the record, note the actual surpluses. In 1994 -- this is from the WCB's own documents -- there was $130 million more taken in than paid out; in 1995, $510 million; in 1996, $432 million; the first three months of 1997, $84 million. So when we ask, is this board losing money?, the answer is no from the WCB's own financial documents.
Therefore, what is the explanation for a government so focused on cost to now say, "We need to take more money out of the system"? There has not been an explanation. I think all the people of Ontario are entitled to an explanation from this government.
I'll touch upon two more points. Chronic pain: The current proposal will have the effect of eliminating all payments for chronic pain. The sections says that chronic pain benefits will be paid out as prescribed. The draft policy is already in our hands and essentially what it says is, after the usual healing time for an injury, which is when chronic pain actually begins in medical terms, there will be no payment for chronic pain except if a worker is in a pain management program. After the program, no matter what the effect, there will be no payment whatsoever, and that's right out of your own documents.
Subsection 118(2) of the draft legislation states that WCAT, the Workers' Compensation Appeals Tribunal, must apply the Workers' Compensation Board's own interpretation in the workers' compensation policies, that interpretation of what the law says, no matter what that policy says. In our submission that is an attack on the freedom of the independent tribunal to make its own decisions. To me, that is incomprehensible. We have an independent, neutral, expert panel akin to a court in workers' compensation matters, with members appointed by your government, drawn from both business and labour. If they find that the Workers' Compensation Board policies are not a correct interpretation of the law, why would this government now be passing a law stating that the Workers' Compensation Appeals Tribunal must accept that interpretation of legislation? The government has provided no explanation to Ontarians for that which we say is a drastic interference in the decision-making of an independent tribunal. The bottom line for us is that the legislation stands for one result: It transfers money from the pockets of injured workers to employers and provides legal advantages to employers at the expense of injured workers. I have provided a lengthy list in our written submission.
If this committee is reasonably seeking advice on amendments from injured workers and representatives, the only advice that I think can reasonably be given after having reviewed it is that the piece of legislation is so one-sided, it requires a complete rethinking. The only amendment that I can --
Mr Stein: If I can just for 30 seconds complete my comments, the only amendment I can make in good conscience is that you revoke all proposals which reduce benefits and inflation protection, since the alleged financial crisis on which this is founded simply does not exist.
The Acting Chair: Thank you very much for your presentation. I am sorry, but there is no time for questions.
Would those representing the Federally Regulated Transportation and Communications Employers --
Mr Gerretsen: On a point of order, Mr Chair: I would challenge the government members to study this financial proposal and to actually come back with a report --
The Acting Chair: I'm sorry. That's not a point of order.
Mr Gerretsen: -- on whether Mr Dee's allegations are correct, because I think you'll find out that he is correct.
The Acting Chair: I'm sorry.
Mr O'Toole: I would ask in response, Mr Chair --
The Acting Chair: I'm sorry, but we're cutting into the time.
Mr O'Toole: The Provincial Auditor of this province has said in his financial analysis of Ontario that this is a real liability, and a liability that the people of Ontario must bear.
The Acting Chair: Order, please. Would you please respect the next delegation.
Mr Christopherson: On a point of order, Mr Chair: I'd like to request that you direct the legislative researcher to take that presentation we had and compare it to whatever other documentation exists and report back on their findings.
The Acting Chair: I'm sorry, David. It's not a point of order, as you know, and any member can request that research.
Mr Gerretsen: I'll second the motion.
Mr Christopherson: If I may, Chair, that's the way we've been doing it in committee. If you want it done another way, I don't care.
The Acting Chair: No, that's fine.
Mr Christopherson: I just want to make sure that the study is done, because I think this has been an important presentation, and whatever means would make you happy, please use it to make sure the work gets done.
The Acting Chair: Thank you very much. We will do that.
FEDERALLY REGULATED TRANSPORTATION AND COMMUNICATIONS EMPLOYERS
The Acting Chair: Would you please identify yourselves for the Hansard record.
Mr Curtis McDonnell: Mr Chair, members of the committee, my name is Curtis McDonnell. If I may introduce the people with me, they are Mr Ted Robbins, Mme Madeleine Meilleur, and Mr Charlie Sheehan. We're here on behalf of FETCO. We want to thank you for this opportunity to address the matter of workers' compensation reform in Ontario. FETCO supports the government's efforts to improve and modernize workers' compensation in the province so that it would provide a fair and equitable system which is financially viable.
A brief note about FETCO: It's an organization of federally regulated employers in the transportation and communications organizations and industries. Its members include such employers as Air Canada, Canadian Airlines International, Canada Post Corp, Canadian Pacific Railway, Canadian National Railway and Bell Canada, to name a few. In fact, there are 24 employers in the organization, representing approximately 420,000 workers across the country.
We have submitted a brief to this committee which is being distributed. We won't read the brief, but we'll try to speak to some of the items in the brief, and hopefully they'll be of some benefit to the committee in its deliberations.
With respect to the definition of "accident," FETCO urges the government to retain the concept of causality; that is, that there is a connection between the workplace and the injury for which compensation is to be paid. That has historically been the basis upon which it has been done, and we urge that it be continued.
By contrast, what we see is a trend towards temporality; that is, where something occurs during the work time that is treated as compensable rather than necessarily being connected to the workplace. In this regard we would urge the committee to recommend to the government that diseases of ordinary life like flus and colds should not be compensable. Furthermore, we support the proposed legislation which specifically eliminates stress as compensable other than as provided in the bill. Likewise, FETCO supports the legislation concerning chronic pain in section 13.
With respect to functional abilities evaluations, medical information and medical examinations, FETCO urges the government to make it clear in the legislation that employers are entitled to relevant medical information, and in particular an independent medical examination by a health care practitioner of the employer's choice, as of right. This provision already exists in Quebec and Nova Scotia. Our experience in Quebec is that the right to an independent medical examination is a positive factor for both the employers and the workers, especially with respect to return to work and return-to-work programs.
With respect to the duty imposed on the employer to accommodate workers, it is FETCO's submission that the test should be one of reasonable accommodation rather than undue hardship as it presently has been determined to apply to the legislation.
With respect to the obligation on the worker to cooperate as set out in subsection 43(5), FETCO further submits that this section should be amended to include as an item the failure or refusal of a worker to attend any medical examination arranged for by the employer. A provision to this effect is in the Quebec legislation at this time.
With respect to subsection 46(2), it appears this section as currently drafted would provide for a minimum payment for any degree of permanent impairment at the sum of $28,545.58. FETCO submits that this particular section is not intended to ensure that this is the minimum for any sort of impairment, and accordingly recommends that it be reviewed for the wording and the wording changed to properly reflect what's intended about a minimum benefit for permanent impairment.
FETCO members are almost entirely schedule 2 or deposit employers. As such there is a provision in the draft legislation which empowers the board to set up a special fund for purposes that it determines are required. FETCO members respectfully urge the government to include in the legislation the requirement that the board consult with the deposit employers before setting up the fund and, further, if they've set up the fund, that they consult with the deposit employers about the use of the fund if they do choose to use it.
Finally, FETCO urges the government to maintain the present provisions in the bill dealing with the respective roles of the board and the external appeals tribunal. It is FETCO's view that it is the board which should have the statutory authority and responsibility to determine policy. It should be the role of the external tribunal to review cases that come to it on the facts that were before the board and to ensure that the policy of the board has been applied to the facts of that case. It should not be the role of the independent tribunal to make or determine policy through the vehicle of individual cases that come before it.
For instance, the bill as presently drafted provides for cabinet to issue policy directions to the board. If the tribunal held the authority to review policy and make policy decisions, it is entirely conceivable that a direction from the minister to the board on policy could be reviewed and changed by the external appeals tribunal. In our submission, that isn't what the legislation is intended to do, nor should it be what the legislation intends in terms of the authority and powers of the appeals tribunal. In view of the responsibilities of the board as set out in section 155, it is appropriate that the authority to make policy reside with the board.
We wish to thank you for the opportunity to make these submissions to you today. We know you've been hearing quite a few submissions in a limited time schedule and we thank you. If you have any questions, we hope to be able to assist you with them.
The Chair: We have just under four minutes per caucus and we'll begin with the Liberal caucus.
Mr Gerretsen: I'd like to get back to this question of mental stress. It really bothers me. We know that the definition as contained in the act and the circumstances under which a person can get benefits as a result of mental stress are extremely limited. You pretty well have to be fired or the conditions of work have to change or what have you.
Could you give me your reason as to why your association would be in favour of this act? Do you not believe that a person could be under so much mental stress that it can affect their ability to work at all? What do we do with situations like that?
Mr McDonnell: Yes, sir, people can be under so much stress that it affects their ability to work. People also have other conditions that affect their ability to work as well. As we mentioned in our brief, from our perspective we think there should be a causal connection between the benefits, the claim, and the workplace. It's entirely possible that somebody can be extremely stressed and be unable to work as a result of that stress but for it to have no connection whatsoever with the workplace. As it's presently configured and historically developed, workers' compensation compensates people for injuries that are caused by the workplace.
Mr Gerretsen: But let's take this situation: We have a worker whose working conditions are totally changed, and medically the doctors and everyone attest to the fact that this person, as a result of these changing conditions, is now under mental stress. The way this is worded in the proposed act, that person would not be able to collect under the new act. Do you think that is right, that it's fair to the worker?
Mr McDonnell: I think that's a very, very difficult case. It's one of those situations where the very difficult cases shouldn't be the ones that determine the law. Each case has to be looked at on its own merits. I would say that what you're saying, the changing circumstances, are not simply a workplace-related injury or condition. We are literally living in a time when circumstances are changing dramatically for everybody throughout our society.
Mr Gerretsen: Sir, you just said it, that each particular case ought to be looked at in its own circumstances. If it can be medically proven that as a result of these changes and as a result of the working condition changes, a person is affected by them to the point where they cannot perform their functions in their work any more, they ought to be compensated. That's the fair thing to do, in my opinion.
Mr McDonnell: Well, if it's equivalent to an external trauma, then that's what the act says.
Mr Christopherson: Thank you for your presentation and taking the time to come. I would like to also address the two issues that you want to remove from the compensable claim, which are chronic pain and stress. I want to say to you, and I mean this with a great deal of respect, that when we look at the history of what injured workers have had to go through in terms of the decades of fights to prove that asbestosis, silicosis, cancers and repetitive strain injury were caused by the workplace, it's a shame, when we've got the body of evidence that says this is work-related and it deserves to be compensated, that we're going to have to let the bodies pile up again and let lives be destroyed before we finally get the compensation these people deserve.
I don't know if you were here earlier. We talked about stress and I read some of the quotes from Dr Kates and from the psychological association of Ontario and others who were clearly saying that differentiating between stress that's related to the everyday lives that we live versus something that's been caused at work can be done. It can medically, scientifically, and with credibility be done.
In terms of chronic pain -- I haven't had a chance to raise this and I want to -- we heard from Dr Teasell, associate professor of medicine, acting chairman of the department of physical medicine and rehabilitation, a specialist in the area of chronic pain. Obviously I can't read the whole thing, but I want to read a couple of things to you.
He opens by saying: "There is a current and disconcerting trend towards dealing with chronic pain and its subsequent disability by denying its reality. The reason for this has been primarily cost containment and cost reduction."
He ends his presentation by saying:
"We seem to have crossed a threshold where it is increasingly acceptable to demonstrate a lack of empathy or compassion for anybody who is injured, in particular those who have chronic pain. Governments not only fail to display compassion for injured workers, but displaying such compassion is seen as weakness for not staying the course of significantly reducing direct costs. As health care professionals and researchers, we have an obligation to point out to our politicians and society in general that there is a significant human cost to the proposed policy changes.
"Shortchanging people when they are most vulnerable is going to markedly increase suffering, while at the same time swelling the welfare rolls and transferring the problem to other jurisdictions. Knowing what we now know about chronic pain, such an approach as they refer to clearly strains the ethical responsibilities we have for those individuals who are limited by chronic pain in our society."
I ask you, why do we have to let the bodies pile up and the lives be destroyed before you agree to come on side and recognize this deserves to be compensated for?
Mr McDonnell: Oh, I'm sorry. Was that a question?
The Chair: We'll move then to Mr Hastings.
Mr Bisson: Hang on. I have a question, and I need to put this because it's directly in your brief and you didn't get into it. I want to ask you, if you were ill today and I was to tell you that you have to go to the doctor I tell you you need to go to, do you think it would be fair for me to impose that on you? You would have to go to a medical doctor I tell you you have to go to and you have no choice. Do you think that's fair?
Mr McDonnell: It depends on what the circumstances are that you're talking about.
Mr Bisson: Do you think it's fair? You're ill. There's something wrong with you, and then I come up to you as a government official and I say: "You can't deal with the doctor of your choice. I'm telling you where you have to go to get medical treatment and who has to treat you, and if you refuse, I'm not going to pay your medical costs." Do you think that's fair?
Mr McDonnell: When you add in the part about paying the medical costs, there's an element of responsibility on the government's part, or whoever the person is paying for the cost.
Mr Bisson: Would you accept that? I'm going to come and dictate to you who's going to treat you. Do you think that's fair? Do you think I should do that as a government? Because that's what you're suggesting in your submission under subsection 43(5). It says, "This section should be amended to include that the failure or refusal by a worker to attend any medical examination which the employer has arranged" would be subject to the person losing their benefits.
I would say that is unfair, that nobody in the world has the right to tell the person how they should be treated. It is their body, it is their person, and nobody has the right to come and suggest that as an employer you're going to have somebody disqualified on the basis that you want to send him to Dr Quack or whatever doctor you want to send them to in order to look at their benefits.
Mr McDonnell: What we are advocating, what we have found in other provinces, is that in the circumstances this is not a first treatment; this is not a treatment medical examination. This is an employer having the right to have an independent medical examination that the employer wants to have.
Mr Bisson: But I don't want to be treated by Dr Quack.
The Chair: Mr Bisson, allow our guest to answer the question, please.
Mr McDonnell: It's not treatment. We're not seeking to treat the worker. We're seeking to have a medical evaluation of the worker for the employer.
Mr Bisson: Why?
Mr McDonnell: It's not treatment. We're not asking to treat them.
Mr Bisson: If any employer says, "I want to send you to Dr Quack," and I say as a worker, "I'm not going to Dr Quack," I would end up --
The Chair: Excuse me. I must interrupt. We're moving to Mr Hastings.
The Chair: Mr Bisson, please.
Mr Hastings: Madam Chair, before I ask my questions of these folks, do we get an extra 90 seconds? That is what has been taken away, in terms of fairness, which the previous speaker always believes in. Can we practise that? Do we get an extra 90 seconds? I need a clarification from you.
The Chair: I'm being as fair as I possibly can. Sometimes flexibility is required.
Mr Hastings: I really need to know whether we're going to get the extra --
The Chair: You'll have until 12:09.
Mr Hastings: Thank you. Mr McDonnell, my first question relates to a concern I have regarding your request that the government consider an exemption for those folks under the Canada Labour Code and that it would be similar to small employers in subsection (2).
I'd like to know, first off, what other provinces have provided federally regulated industries with such an exemption, and if you were to be granted an exemption, would you be prepared to put in place some kind of specific return-to-work plan for those folks who are subjected, influenced -- and we have to all operate under whatever the act is at the moment -- rather than a straight exemption? I'm a little concerned that the employees in those circumstances would not be dealt with on a fair basis simply because you had the exemption.
Mr McDonnell: For return to work?
Mr Hastings: Yes, return-to-work provisions.
Mr McDonnell: The Canada Labour Code in subsection 239(1) specifically imposes an obligation on employers to return workers to work. One of the problems that federally regulated employers find themselves in is that there are two separate obligations: one under the Canada Labour Code which is similar to the Ontario legislation but is different. From our perspective, it would make it clearer that the governing law would be the Canada Labour Code, which is what federally regulated employers are covered by. But there is in that statute, in section 239, a specific obligation to return workers to work.
Mr Hastings: Does that involve a specific return-to-work plan that the employer has to work out under the Canada Labour Code?
Mr McDonnell: No. As far as I'm aware, there aren't regulations in place that deal with that issue at this time.
Mr Hastings: The second item I would like to focus on is the perpetual denial or, as we talk about -- perhaps it's too technical, and it is in a way if you want to use accounting terms -- unfunded liability. There is a contention being made, particularly by the last presenters, that in point of fact everything is pretty financially balanced. If you sort of readjust your accounting principles --
Mr Bisson: That's not what they said. What a misrepresentation.
The Chair: Mr Bisson.
Mr Bisson: Come on.
The Chair: I'm sorry, Mr Hastings. Please go ahead.
Mr Hastings: Thank you -- that in point of fact there is some kind of a financial problem. However you term it, and whatever accounting principles you use, in point of fact right now, if you had to pay out everything to injured employees across this province for all kinds of compensation and pensions and other --
Mr Bisson: If I called back all your loans --
The Chair: Mr Bisson, would you please give our guests and other colleagues the courtesy due to each one of them.
Mr Bisson: It's very tough, and I apologize.
The Chair: Thank you.
Mr Hastings: No, you don't really mean it at all.
I would like to know from you whether you can put in human terms what it means if we do not deal with the financial situation -- crisis, problem, whatever you want to call it -- in terms of future rehabilitated, future injured workers, if boards in this country and in Ontario were trying to deal with the financial challenges when you do not have the books balanced, however you want to call that --
Mr McDonnell: I regret to say I can't give you a figure about how it will impact in the future. I know there are a vast array of actuarial reports that have worked on the issue of future liabilities and future costs and the impact on the Ontario situation and how large the future unfunded liability is in Ontario versus some other by itself. Other provinces also have unfunded liability issues which are determined by actuaries, depending on how the revenues of the province are.
In the last statistics I saw, Nova Scotia had a very difficult unfunded liability situation. Although it wasn't, in absolute dollars, as large in Ontario, it was worse than Ontario's, but it was less than $1 billion in total. New Brunswick is actually moving towards full funding. They anticipate being fully funded within a couple of years. Some of the board administration feel that in part that was achieved by going to 80% of net for the first 39 weeks and then 85% of net, and a three-day waiting period. It didn't cause or accomplish but it helped to achieve some of these changes in their financial position.
Mr Hastings: Let me put it this way --
The Chair: Mr Hastings, I am sorry, even with the 90 seconds --
Mr Bisson: Why don't you ask for unanimous consent?
The Chair: All right, is there unanimous consent?
Mr Bisson: No.
Mr Hastings: You ought to be ashamed of yourself, Monsieur Bisson.
Mr Bisson: Have some of your own medicine back; your government --
The Chair: We are gong to move on. Thank you very much; we certainly appreciate your contribution this morning.
ONTARIO RESTAURANT ASSOCIATION
The Chair: We'll ask our final presenter of the morning, a representative from the Ontario Restaurant Association, please, Mr Oliver. Good afternoon and welcome; appreciate you coming. You know the rules, I'm sure.
Mr Paul Oliver: Yes. Good afternoon. I'm Paul Oliver, president of the Ontario Restaurant Association. On behalf of the Ontario restaurant and foodservice industry, I'm pleased to be here to provide our views on Bill 99.
As an active member of the Employers' Council on Workers' Compensation, the ECWC, the Ontario Restaurant Association supports the views and recommendations put forward in the ECWC submission. Therefore today I will only make a few brief comments and highlight a number of areas of specific relevance to the thousands of small workplaces which dominate Ontario's hospitality industry.
Overall, the ORA strongly supports Bill 99. However, we believe there are a number of important amendments which must be introduced before Bill 99 is enacted. Without these changes, the implementation of Bill 99 will be difficult and small businesses will face new and additional red tape requirements.
From our perspective, Bill 99 is a continuation of the refinements and concepts introduced by all three political parties over the last 13 or 14 years. Bill 99 is simply an evolution of this process. The ORA believes that once all the rhetoric is peeled away, this bill should be seen as a legislative initiative which will provide workers and employers in Ontario with a more balanced, fairer and, most important, sustainable compensation system.
To ensure that Ontario remains a competitive economic region able to create jobs, changes to the workers' comp system are required. Prior to the last provincial election, both the Liberal and Progressive Conservative parties made WCB reform an election issue, and rightly so, recognizing the problems facing the system. The system in many areas has simply spun out of control. Even while accident rates were rapidly declining, employer assessment rates were steadily increasing and the unfunded liability has continued to grow.
Throughout this period, the foodservice industry made significant progress towards reducing the number of accidents within our sector, but we were rewarded with further increases in WCB assessment rates. Even today, Ontario's foodservice rates are well above the Canadian average. Today, Ontario's WCB rate for restaurants of $2.72 per $l00 is surpassed only by Quebec and Newfoundland at $2.76. Our rates, however, are dramatically higher than the 91 cents in PEI, $1.09 in BC, $1.07 in Alberta and all other provinces and territories. This is a situation which must be corrected.
High WCB rates are, without a doubt, a job killer. Even within the restaurant sector, which is traditionally seen as a domestic economic sector where jobs are fixed to one location, WCB rates can and do kill jobs. New packaging technologies, advances in food preparation, the telecommunications revolution etc all mean jobs that previously had to be located in the restaurant can now be located anywhere. They do not have to be in the restaurant, and they do not have to be in Ontario. The cost of operating in Ontario, which WCB rates play a major role, is a direct determinant as to where those jobs are located, whether it's here in Ontario or elsewhere in North America. Bill 99 will begin the process of reforming the workers' comp system so that the taxation levels faced by employers and the wage replacement levels for workers are more equitable and balanced.
Bill 99 does not radically, in our view, alter the workers' compensation system in Ontario. What Bill 99 does is create new mechanisms to encourage and, yes, if necessary, force cooperation and communication between employers and workers. As well, Bill 99 places more individual accountability on employers and forces them to improve their performance. By shifting greater emphasis on accident prevention and rehabilitation, individual employers who don't get the new message will see a rise in their assessment rates, or increased penalties for those who do not meet the new standard.
The ORA strongly supports the new emphasis on prevention and cooperation contained in Bill 99. We are, however, concerned that Bill 99 has some serious pitfalls which need to be addressed in order to ensure the integrity, fairness and proper functioning of the system are enshrined in the legislation. The ORA is particularly concerned about the new re-employment obligations placed on small employers, including employers with under 20 employees, which were previously excluded from this regulatory requirement.
The section in question is 40(l)(b). This section of the legislation requires all employers "to identify and arrange suitable employment." This requirement is different than the obligation set out in 41(5), the re-employment section, which compels an employer to "offer the worker the first opportunity to accept suitable employment." Under this new section, an employer is compelled to search out suitable employment that may not even be available in the workplace.
Presently, many employers, for their own reasons, may create temporary modified or suitable employment for workers to assist with their prompt return to employment. This is, however, above and beyond the legislative requirement set out in 41(5). The new provision in 40(l)(b) will now require all employers to facilitate a search. Failure to do so will result in board-imposed penalties under section 84 of this legislation.
In requiring an employer to attempt such a search, and providing for financial penalties, it is obviously expected that the employer earnestly and diligently facilitate a real and meaningful attempt. Most significant is the fact that this new requirement to identify and arrange suitable employment under Bill 99 will be applied to all employers, regardless of size. Historically, small businesses employing fewer than 20 workers have been exempt from the re-employment obligations because such firms lack the ability to hold jobs open, or to create jobs where none has existed. Small employers simply can't function in this manner.
Under these new provisions, even a firm with one or two employees will be required to undertake a search for, and arrange for, suitable employment. Failure to do so, the same as with larger places, could result in a penalty from the board. From our perspective, this new re-employment obligation is an unreasonable and unworkable burden being placed on small businesses, and must be amended. If this section is not amended, small business operators will face new and substantial red tape in Ontario.
Other areas of Bill 99 requiring amendments include the area of labour market re-entry plans. The labour market re-entry plan process will work for larger employers; however, we are concerned that the time spent on claim may actually increase for medium-and small-size employers unless the need for board resources is identified at an earlier process. More clarity, from our perspective, is required in Bill 99 on this matter.
The ORA appreciates the simplification of the NEL process, but we recommend extending the prescribed time for reassessment from 12 months to 36 months in order to give a fairer and more accurate reassessment.
Employer assessment rates: Subsections 80(4), (5) and (6) provide for a very broad discretion to the board in setting company-specific assessment rates, but disturbingly, individual disputes are not allowed to proceed to a tribunal or to a review process. From our perspective, this is unjust and must be changed so that an appeal process is permitted.
Special reserve funds: The second injury and enhancement fund must be codified into law. The second injury and enhancement fund is an important part of the functioning of the WCB system and from our perspective should be included in the legislation and not left to the board's discretion.
The ORA would like to reiterate our support for Bill 99, provided that the legislative changes noted above are implemented. We would also like to re-emphasize our commitment to work with the WCB to help facilitate the implementation of both the spirit and intent of this legislation within our industry. Thank you.
The Chair: We have three minutes remaining per caucus and we'll begin with the third party.
Mr Bisson: Two questions: First, I notice in your brief, in the outline, not word for word, but you feel that this particular act is a more balanced and fairer system of compensation. I'm intrigued by your definition of "fair." I just want to test that out on you.
You have a system under the new regime that is going to take away privacy rights of individuals by releasing information from doctors about individual patients to the board or to the employer. There's a whole bunch of other provisions there that give the employer access to medical information that has nothing to do with the injury. You have a system that's going to reduce the benefits paid to injured workers that at the same time gives a $6-billion gift to employers. You have a system that is going to restrict what is compensable for an injured worker, such as stress, industrial diseases and other types of injuries, and you're going to restrict the rights the individual worker has to an appeal. Is that fair?
Mr Oliver: Just to comment on a couple of those points, I think allowing employers access to functional ability information is a very fair process.
Mr Bisson: What I'm saying is they have access to much more than that. If I have AIDS or --
Mr Oliver: From my perspective, judging by what I believe is in the functional abilities form that will be filled out by the doctor and returned to the employer, it's information on what jobs or what activities that employee can do. If the employer is going to be obliged to bring that person back and create work for the worker, they need to know that information, and I think that's fair. I think part of the problem with the system now is that there's an obligation for employers to do certain things but --
Mr Bisson: I hear what you're saying, but what I'm asking is, where you have a system that is going to demand a whole bunch of things from injured workers that were not accepted -- cut benefits, reduce the right to appeal, all that kind of stuff -- in the case of the board it says that a person receiving benefits, in other words an injured worker, "shall give the board such information as the board may require from time to time" -- it doesn't stipulate what it is, it's absolutely anything: financial, medical, whatever -- is that fair?
Mr Oliver: For the board, which is paying the compensation claim, I think it is. For what information goes to the employer --
Mr Bisson: Is it fair for the worker? It might be fair to the board but I'm saying for the worker.
Mr Oliver: At the end of the day, if you're asking the board to pay for the cost of a claim, I think an insurance company --
Mr Bisson: Okay, next question. I see where you're going.
Mr Oliver: Mr Bisson, I think probably the difference we have in our view is whether we see it as an insurance program replacing wages lost for injury or whether we see it as a social network.
Mr Bisson: And we have a different view or opinion.
Mr Oliver: I see it as an insurance program. There are other social network programs out there that provide for people who --
Mr Bisson: Okay, second question. I hear what you're saying. You're saying you think it's fair; I think it's not.
You're saying also in your brief that WCB rates are a hindrance to job creation and actually are a job killer. You're obviously going to be getting a gift of $6 billion from the government when this legislation passes. I want to know from you, how many jobs are you going to be creating over the next year? Do you have any projections of how many jobs you're going to create as a result of the $6-billion gift that employers are getting? Can you commit to that?
Mr Oliver: Before you talk about gifts, because personally I don't believe there's a gift there -- if you or someone else want to write me a cheque, I'll be happy to take it away -- the reality is that the rates in Ontario are substantially higher than elsewhere in Canada when we look at Alberta, which is $1.07, or British Columbia, which has a very generous system -- it has $1.09 -- versus $2.72 here. Keep in mind we are competing for jobs with BC and Alberta and Saskatchewan and Manitoba.
Mr Bisson: But you're getting that. How many jobs are you going to create? That's the question.
Mr Oliver: We're not going to be looking at substantial rate reductions. We're not even going to come into the same ballpark. We're not playing the same game as Alberta or --
Mr Bisson: How many jobs? This legislation --
Mr Oliver: It will help keep jobs here and we think it will create jobs, but if you want me to put an exact number on it, I can't do that.
Mr Maves: Mr Oliver, thank you for your presentation. The NDP labour minister agreed with you in 1994. He said, "There's a growing feeling that the WCB is becoming a drain on Ontario's economy, on our ability to attract investment and jobs and spark business confidence," and we agreed with him.
Mr Bisson: Read the rest of the speech.
Mr Maves: I could, and it does well.
One of the questions I have for you, Mr Oliver, is that you're right that in section 40 there's a new and more difficult obligation placed on employers, especially ones with 20 or fewer employees, where it says they have to attempt "to identify and arrange suitable employment." We think that's a vital part of the bill. We've heard from people from all sides of the table that safe and timely return to work is essential, not only for the financial health of the system, but for that employee. I don't personally think that is something we would want to change in the bill. I think it's one of the strongest parts of the bill.
Mr Oliver: The concern we have is requiring a formalized process. The concern we have is that most small employers are small, family-run businesses. They are in very regular contact with their employees when they are injured. In my industry, for example, we have an injury in the average workplace once every eight to nine years. What they do is, if a person is off, they will be in regular contact with them. It's the owner taking a very hands-on approach to bringing that person back to work.
Our concern is with the board coming up with a very bureaucratic process, "You have to complete these forms, you have to do this audit, you have to do this," and the employer saying, "No, I've talked to my employee and they're coming back next week." "But you haven't done this form, so therefore under section 84 you could have a fine imposed."
What we're suggesting is either cleaning the legislation up so there isn't this bureaucratic process there or allowing employers to do as they are doing in bringing back those employees. Remember, if they don't bring them back, they are facing penalties and surcharges on the experience rating. In the changes that are going on at the board now, experience rating will penalize small employers just as much as big employers when they don't bring people back, if they stay on long-term and the employers don't bring them back for modified work.
The concern we have is the bureaucratic process. The board has this tendency, rightly or wrongly, to make small requirements very cumbersome. Our concern is that because it's not prescribed in legislation, this requirement that is already being fulfilled by most employers out there is going to become a very bureaucratic process.
Mr Gerretsen: Two very quick comments and questions. You're saying the unfunded liability is growing. We had a presentation from Mr Dee this morning which indicates that, especially if you take into account the change in the excess of market value, of the carrying value, in the last two years the fund has gone to the good by about $1 billion, and in terms of actual 1987 dollars the amount of unfunded liability is almost the same. I realize that the two of you are approaching it from different ends, but I would like you to study his figures as well and tell me if you agree with them.
Mr Oliver: Certainly, I can go back and say that in the last week the deficit at the board may have gone down or may have gone up. It depends on what time frame you pick. But I'm talking about what the trend has been over the last four, five, six, seven years. Actually, since the mid-1980s it's been continuing to grow, even though assessment rates for my industry have also been growing and at the same time accident rates have been going down.
Mr Gerretsen: So you're concerned about it?
Mr Oliver: I'm very concerned about it.
Mr Gerretsen: Well, if you're so concerned about it, why don't you tell the government, "Don't cut our premiums. Let's get this down to an acceptable level first"? Why doesn't your association do that?
Mr Oliver: I think that's what Bill 99 does: It sets in place a plan to manage that change. There's change going on everywhere. You don't just do one thing and ignore the other. This looks at controlling the cost of workers' comp so that we're competitive in Ontario, so that we're keeping jobs here, we're managing the deficit. Sure, we could manage the deficit overnight by putting a levy on everyone and driving every job out of Ontario, if that's what you'd like to do, and we could get to zero overnight.
Mr Gerretsen: Finally, clause 40(1)(b) really has me baffled. This act should be about fairness. What in goodness' name is wrong in a section that says, "The employer of an injured worker shall cooperate in the early and safe return...of the worker by attempting to identify and arrange suitable employment"? It's not that he shall give him suitable employment, but he will attempt to identify, to try to get this guy back into work and when possible restore the worker's pre-injury earnings. For most small employers I've known over the last 25 years, they try to do this kind of stuff. What is wrong with putting this kind of thing in legislation so that at least there is some obligation on the employer to try to find some other suitable employment?
Mr Oliver: I think I answered that when Mr Maves asked the same question. The concern we have is that the requirement is not prescribed. It just says, "You shall do this," and then it backs it up with fines that the board may impose.
Mr Gerretsen: It doesn't say, "You shall do this"; it says, "You will attempt to find suitable employment."
Mr Oliver: But if you're attaching fines or penalties to it -- they've got to go through the process, but what is the process? That's the question. The process isn't prescribed. What we'd like to do is see the process prescribed so that you know what it is, so that you're not being required to go through a major bureaucratic process. For a small employer who has one employee, what does it mean for them to do that? Can you tell me today? No, you can't.
Mr Gerretsen: I can tell you what it means --
The Chair: Mr Gerretsen, please.
Mr Oliver, on behalf of the members of the committee, we thank you for coming this morning. It is appreciated.
Colleagues, that concludes our presenters for this morning. We will reconvene at 1:30 this afternoon.
The committee recessed from 1231 to 1328.
KINGSTON CONSTRUCTION ASSOCIATION
The Chair: Our first presenter this afternoon is a representative from the Kingston Construction Association. Please make yourself comfortable at the table. Welcome. If you would, please introduce yourself for the Hansard record.
Mr Tony Pascoal: Good afternoon. My name is Tony Pascoal and I'm vice-president of the Kingston Construction Association. I'm here to present our paper.
The Kingston Construction Association would like to thank you for the opportunity to present some of our views and suggestions on behalf of our 264 construction contractor-supplier members. Our following presentation will focus on the uniqueness of our construction industry and the relationship between the employer and the employee.
The KCA is generally in support of the reforms proposed by Bill 99. However, our concern is that our industry may be blended in general conditions that are not suitable or applicable. If this happens, our assessment rates will likely continue to increase disproportionately and thus force construction costs to do the same.
Investors considering coming to Ontario, as well as those considering expanding or even staying in Ontario, consider construction and maintenance costs as a prime factor. Traditionally, the line of thought was that contractors and suppliers will just pass on higher compensation costs to the owners and investors. Owners and investors have the ultimate say in where they locate. We have to compete with neighbouring provinces and countries. For your consideration, the Kingston area is within a two-hour drive of Quebec and northern New York state.
The KCA will support a fair compensation system to all employees that protects their rights. However, we also need a compensation system that ensures the economic viability of our industry within Ontario and competes on the global market. We need to be assured that the reformed compensation system is fair to both employees and employers, but not subject to fraud and abuse, and in competitive comparison with other provinces and states.
The employer-employee relationship in the construction industry is very different from other sectors, such as manufacturing and commerce. Our workforce is often very short-term, seasonal and on a per job contract basis. Most of our firms employ an average of six employees and enter into project contracts averaging three months. This imposes limitations on what options our employers have with their employees. For example, the likelihood of return to work with the accident employer is much lower than in other sectors. Many of our member firms also have union agreements which severely control the hiring practices and conditions.
KCA members are concerned about the negative effects that illegitimate contractors and the underground economy place on the compensation system and force an alarming increase in compensation costs. For example, trades such as masonry and roofing are facing increases of 25% to 30% of assessable payroll annually. Yet legitimate contractors in the same trades have introduced the safest health and safety policies in North America over the last 10 years. We seem not to be deriving any benefits from having among the lowest construction accident rates in North America. Something is wrong. Our members are demanding relief from higher assessment rates that are contributing to the negative growth of the construction industry, which will result in higher unemployment rates and less capital investment in Ontario.
The message from our construction industry is that we need a compensation program that respects the interests of the worker and the construction contractor-supplier employer equally. Quite unlike other industries and businesses, our employee-employer relationship is very complex: often seasonal, mobile, specialized to a specific trade or skill, often facing an aging or limited workforce, and unique conditions for each individual project undertaken.
On behalf of the Kingston Construction Association, thank you for your time and patience. I would be happy to discuss any questions you may have.
The Chair: Thank you very much. We have four minutes each per caucus and we begin with the government caucus.
Mr W. Leo Jordan (Lanark-Renfrew): Tony, thank you very much for your presentation. I would like to ask you to enlarge a bit here on this statement that you make that your "members are concerned about the negative effects that illegitimate contractors and the underground economy place on the compensation system." Just what are you referring to here?
Mr Pascoal: There are a few examples; maybe I can give a few examples that would highlight that sort of thing. One about illegitimate contractors is that a lot of them are taking on projects aside from the normal written contract, that sort of thing.
Mr Jordan: Excuse me: "Illegitimate," is that a contractor that does not belong to your association?
Mr Pascoal: No, sir, that doesn't reflect on those that are not members of our association. In fact, a lot of good contractors are not yet members. For instance, a lot of the home builders are not members of ours that have their own association. That's not the case.
What I'm getting at is those who don't follow, perhaps, written contracts and written invoices, and then there's the procedure with the lien act and the compensation clearance certificate procedure that's required and that sort of thing; in other words, those that just sort of bypass those kinds of checks on the system, and many of those that are doing projects literally for cash only and there's no record. Those projects are getting much larger than they used to be.
Mr Jordan: Your legitimate trades, if you will, have tried hard to introduce safety measures on the job and keep the employee in mind from a safety point of view. Are you saying these people are getting away with some hazardous conditions on the job?
Mr Pascoal: Yes, sir. In fact, many of us are concerned. Our association and other construction associations work closely with the Construction Safety Association of Ontario, which is affiliated with the workers' compensation system, and we have, for instance, regular monthly meetings often specific to each trade, so in a month there may be 10 or 12 different meetings. One may be masonry, another may be plumbing and that sort of thing.
As well, there are overall general meetings for the industry as a whole. We work with them through educational programs with our contractors and suppliers and keeping up with the legislation and what is appropriate to protect the interests of our employees.
Mr Jordan: Would the labour inspector not check these people on the job?
Mr Pascoal: No, not necessarily. In fact, one of our problems is that the labour inspectors usually, and it's no personal criticism of them, have office hours and they only work, say, Monday to Friday from 8:30 to 4:30. A lot of the illegitimate stuff is after hours on weekends and it's not reported. It would be very hard for these inspectors, with all due respect -- we the legitimate ones give them notice of projects because that's the legal thing to do, and then they are aware of when the project begins, how long it is going to last, whom to contact, and they come out and visit us. These illegitimate activities, there's no record of them.
Mr Patten: Thank you for your presentation. It was short and sweet and to the point. You've identified, as many people in the construction industry have already done, the difficulties around the return to work and whose responsibility it is when someone does have an injury. But I understand there are negotiations, that if they haven't started already, will be taking place and that the government has acknowledged the uniqueness of that aspect for your industry and that there will be some discussions.
But it's my understanding that if the frequency of accidents has gone down, the assessment by the board, their experience rate, is over a multi-year period. If the trend, as you suggest, is correct and that it has gone down, there are only two other factors, as far as I'm aware, that would keep the rates high. One is that in the next cycle the rates would drop, all things being equal. Even though there's a frequency drop, there may be an increase in the severity, which is more costly. I think it's an economic formula, is it not, as it's applied? It's not just, "We're going to charge these folks more because we want to ding them." I think the board has to justify their statement of why the rates are that way. But I think it's over at least a three-year period, maybe even a five-year period.
Mr Pascoal: If I can just elaborate on that, there is a problem. Although the CAD-7 is a good program, there are a lot of real flaws in the construction industry with it.
For instance, it's based almost equally on the cost versus the frequency of an accident. In other words, the way the formula is set up right now, half an accident is it; that's it, I'm over. There's no such thing as half an accident. There's either one or there isn't one. As soon as there's an accident, even if it's only hitting the finger with a hammer, that worker claims one day or two days, it's over, and the CAD-7 is destroyed for that contractor.
Unfortunately, it's the kind of thing where, unlike manufacturing or commerce, we can't just shift the worker, due to safety concerns. We can't just say, "Okay, you can't hammer nails any more, so you can sit here or sweep the floor or do something like that." We have a real problem with the CAD-7 in that half an accident will put that contractor in jeopardy, and there's no such thing.
There should be a little bit more fairness in the overall cost of the accident and not so much the frequency in the construction industry, although we all strive for zero frequency.
Mr Gerretsen: I certainly agree with you that nobody would condone fraud or abuse, whether it's on the employee's part or on the employer's part, whether we're talking about workers' compensation or any other activity, for that matter.
Have you done any studies or have you been able to determine why, if legitimate contractors have improved their safety record etc, within your industry there have been such tremendously large increases in your premiums?
Mr Pascoal: We've looked at number of factors. One of them is that if someone decides to be a construction contractor tomorrow, they can basically fill out a form, contact the WCB people and get a number. They can go out and operate for a month, two months, have no safety record whatsoever, have a couple of claims and then shut the door. In other words, there's an overall pending group of accumulated claims from fly-by-night-type contractors. There's no way of policing or controlling that.
We'd like to see some kind of control where an individual is paying the same rate yet has no track record or has a previous bad record, even, and there's no penalty imposed on his rate. In other words, if I pay 10% per $100 and a new person starts tomorrow, and that individual may be good or may be bad or may have had a previous bad record, he pays the same $10. There's a real problem with that if the individual comes in, destroys the industry, has no safety requirements, has no concern for his employees, has two or three claims and leaves us with that kind of record behind him, yet we have to fund that. We'd really like to see some policing in that area.
Mr Christopherson: Thank you for your presentation. When you talked about illegitimate contractors, the underground economy and safety measures -- you're one of the contractors. Are most of the contractors you use unionized employees?
Mr Pascoal: Our association is a mixed group. It's pretty close to half and half. Half the contractors are union and half are not.
Mr Christopherson: What about yourself, your own business?
Mr Pascoal: My own business is union. I run a masonry business that's unionized.
Mr Christopherson: Do you find that with the union you're under more pressure to deal with some of the safety issues because they're on top of you, as opposed to the other contractors who don't have that?
Mr Pascoal: Yes. We have a fairly good relationship with our unions, but I guess it's a built-in factor. Not to be unfair to our non-organized members, but there are checks and balances within the union workforce that even if the employer is not there, someone is automatically assigned, a shop steward, that sort of thing, and there's a little more training. However, some of our non-union contractors are moving that way. But generally speaking, there are more checks and balances with a unionized workforce.
Mr Christopherson: I appreciate your frankness and honesty. I'd be shocked and have some difficulty if you had said otherwise. Being someone who supports the labour movement, I think that makes a good case for workers who are worried about safety. One of the first things they can do is join a union and have the benefits of being represented by a trade union.
Also, I wanted to acknowledge to you that every group that has come forward either from the union side or from the employer side, in talking about your industry, has gone to great lengths to point out the uniqueness of the industry. I think it would be hard for any member to spend even a day on this committee and not come away understanding that. So I think that's of some use to you in terms of your industry.
My question to you is based on your comments on the last page. You say your message "is that we need a compensation program that respects the interests of the worker and the construction contractor...employer equally." I would submit to you that the interests of the employer have been duly respected by this government, particularly to the extent of $6 billion that's going back to employers by way of a cut in the money they pay out. I think the injured workers have been treated most disrespectfully by this government in Bill 99 by virtue of the injuries and illnesses that are no longer compensable and certainly, most obviously, by a 5% cut in the amount of money they get if they're injured on the job through no fault of their own.
Can I ask you how you square that with your believing that it's an equal hit for both, or equal benefit as some have actually foolishly suggested?
Mr Pascoal: Our concern is that in the construction industry, because of the nature of the projects and the aging of the workforce and the specialized skills, we have a little problem. The concern is that for instance some of our workers are specialized in, say, bricklaying, for my example, and if something happens it can be difficult to get them into a rehabilitation program that can mobilize them, that if they're into the stage of recovery, we can recover and work with that individual. It's difficult. There aren't the -- how would I say it? -- opportunities for that sort of rehabilitation back to our specialized skills.
It's tied in more with the overall shortage of the apprenticeship programs and everything else. We have a real problem in our industry with what is available for training. If someone needs to go to St Lawrence College or whatever, there are a lot of options. But in the construction industry there are very few options for them to get there.
The other thing is that where we see the unfairness, and we're not against a legitimate claim at all -- most employers support compensation if something happens. We're concerned about the length of recovery time. In other words, disability allowance can be two and a half times, three times higher in the construction industry versus other sectors. In other words, for them to be retrained, or physiotherapy, that sort of thing, to get them back to the work site within a decent and acceptable amount of time, there aren't the avenues that there might be in the other sectors.
The Acting Chair: I'm sorry. The time has elapsed.
QUINTE LEARNING CENTRE SKILLS NETWORK
The Acting Chair: We'll have our next presenter please, the Quinte Learning Centre. I'd like to welcome you this afternoon and ask you to give your names for the Hansard record.
Mr David Scrymgeour: Dave Scrymgeour from the Quinte Learning Centre and Jan Rockett-Ulicki from the Skills Network.
Our organizations have been in the field of training and vocational rehabilitation for over two decades. We've seen a great deal of change, possibly nothing as significant as Bill 99. Change is often a difficult process, especially when it's being driven by hard economic reality, but I think everybody in this room shares one common concern and that's for the health and the safety of this and future generations of workers.
We work with hundreds of injured workers every day and it's impossible not to have great admiration for the courage and determination with which they strive to return to work. But in many cases the current system has failed them. It is often disjointed, unfocused and unmeasured and it doesn't get them back to work as quickly and effectively as it should.
Our organization has not benefited from Bill 99, but despite this, there are three areas that we are very familiar with that we think of it as going in the right direction for Ontario. The first area is that of prevention. We know that any form of education from basic literacy to skills training is sound business practice.
In my teens, and many of us did, I took a driver training course. I learned a life skill and a potentially dangerous activity that was of value to me and at the same time reduced my insurance premiums. It was value added that paid for itself. This is the type of concept I think we should be adopting in this area. We as a company would rather deliver a little bit of prevention to a lot of people than a lot of cure to the unfortunate few.
The second area is labour market re-entry. Our response to the challenge of Bill 99 has been to develop a powerful and seamless model to make workplace transition more manageable. It incorporates all facets of this process, from assessment and testing to training to job search skills and work placement. I am sure that effective return to work is a common goal of all the stakeholders in this process, and we know from our experience that a coordinated, outcome-driven model is a massive improvement over the existing system.
The third area is that of shared responsibility. From employers to workers to specialty service providers, we must embrace accountability. I don't know how many times I have requested that we be inspected by the WCB, as we are by the Ministry of Education, that we be measured and held to standards along with the rest of our industry. We'd like to see this included in the new system. All the areas I've talked about would be revenue-neutral if not revenue-positive.
At this time I would like to introduce is my colleague Jan Rockett-Ulicki of the Skills Network, who will speak in more detail about our labour re-entry model.
Ms Jan Rockett-Ulicki: I just wanted to speak to prevention and labour market re-entry delivery and how to improve on these. Over the past year, knowing that Bill 99 was coming into effect, we wanted to put together a seamless model for re-entry to the workforce, so we have worked in partnership with other learning centres, with vocational rehab, insurance companies, literacy networks and the corporate sector, along with HRDC, to come up with that seamless model.
Part of that model we have shaped is basically needs assessment, basic skills, English-as-a-second-language training, prevention and safety, job search, job placement and labour market trends. We've also come up with a train-the-trainer program which is delivered to the employment sectors and is based on facilitation around listening skills, problem-solving skills and team communication with the employees.
We also have a group of experts in the field of clear writing of safety procedures in manuals, as well as trained, qualified people in the areas of case management, and this is where we see our primary role. In past years it has always been after the fact, delivering services to the workers after the injury and trying to get them back into the workforce. Now we see in the future our role being preventing, and if not helping in the manner of prevention, working with employers and companies and the employees, then certainly in the way to get back into the labour re-entry workforce as quickly as possible but with the skills that are needed in order to do that.
The Chair: Thank you very much. You've left us plenty of time for questions, approximately four minutes per caucus, and we'll begin with the Liberal caucus.
Mr Patten: Thank you for your presentation. Are you a member of CARP?
Ms Rockett-Ulicki: Yes, I am.
Mr Patten: They made a presentation here and I think made similar points to you. With a lot of the things you do, that means you work in conjunction with some of the WCB case workers, I suppose.
Ms Rockett-Ulicki: Yes, we do.
Mr Patten: What is your assessment? What do you think is the ideal model? Should it be a mix? Should there be no rehabilitation workers with the board? Should it all be private sector? What in your experience would be the best arrangement? Then I want to ask you about your seamless program.
Ms Rockett-Ulicki: I would think it should be a mix. I know that I've worked closely with the case workers over the last five years, and from my experience, most of the case workers generally do have a lot going for them. They really work with their clients. They seem to feel they want the best for the client, and I found most of the case managers to be very good with their clients.
I think going private would certainly help in the manners of education and training because those are the people who are experts in the fields and those are the people who know exactly what is needed. I think that's important to get the person back to work. I also would like to stress that I think the employers themselves have to be involved because it's basically working as a team and, as I've said before, our role has always come after the fact. Once workers have already been injured, then they're placed with us and we have to try to get them back into the workforce.
That's not always been a seamless model, because it's been very difficult. First of all, we don't know where they've come from, what employment sector. A lot of the times, sometimes people aren't too open with information so it's difficult to gauge exactly what to do. Sometimes the vocational rehab plan has not been very definite so you're sort of guessing and working around a lot of areas you're not too familiar with. I think it's best as sort of a joint venture with everyone concerned being involved.
Mr Patten: So I understand. The board has already started the process of laying off some vocational rehab workers, but then they're going to hire back several hundred and those would be nurses. According to the Registered Nurses' Association, they're somewhat mystified -- maybe "mystified" is a strong word, but they're not totally confident as to what this will mean for them. They know they're comfortable with the medical side --
Ms Rockett-Ulicki: Exactly.
Mr Patten: But the other part of that job is of course going to be advice and counselling and referral and all sorts of things, probably many of those functions you do yourself. How do you read that? Is that going to be an improvement?
Ms Rockett-Ulicki: I think it's going to be an improvement certainly in the medical part of it. I have a nursing and pharmacy background and I know I spend a lot of time counselling some of the workers who are with us because that part of it has been missing with the case worker, because they're more focused on: "Okay, now, we have to get you back to work. We have to get you trained in order to do that." Sometimes I think pieces have been missing in the actual medical part of it. Of course, they are not trained, they don't have that kind of background, so that would be an important step, for nurses to be involved. But I still believe the case management is still more than just the medical part of it.
Mr Patten: I agree.
Mr Scrymgeour: Our organizations have been working very hard to become participants in this process because we believe, to be effective, it has to be goal-driven, it has to be accountable, it has to be cost-effective. Otherwise, it doesn't work for anybody. We're driving very hard to be able to participate and send it in that direction.
Mr Bisson: You spoke to the issue of prevention as the best way to be able to deal with trying to contain the costs of the WCB from the employer's side and from the employee's side, trying to prevent the tragedy that happens to people when they do become injured. I don't think anybody argues, no matter where you are. The key is you have to try and find some way to lessen the amount of accidents.
The problem I have is that when you look at this legislation it really doesn't address adequately how to be able to prevent accidents. I'd maybe try to take it out of WCB and just take it to something a little bit different to illustrate my point. You prevent accidents by doing one of two things. You either have a financial disincentive to the employer; in other words, the more accidents you have, the higher rate premium you'll pay. So if you want to pay less premium you end up with a lower rate, and that's what the NEER system was supposing to be all about, something prior to this act, actually.
The other way is by way of education, educating workers and supervisors about how to conduct a safe workplace so that we can identify problems before they happen, so that we can hopefully address and prevent accidents from happening in the future. Those are things that again were done prior to this act under the Occupational Health and Safety Act, the rights workers have to refuse unsafe work, the health and safety agency, all of those things that were leading in that direction.
This legislation takes that away. It doesn't only take that away, but really doesn't even bring it a step forward; it's like we're going backwards. How can this legislation lead to prevention? I'm mystified? We're not doing a financial disincentive; we're giving employers a $6-billion rebate and at the same time we're disbanding the health and safety agency and we're not doing anything really to address how to make safer workplaces.
Ms Rockett-Ulicki: I can only speak to the education and training part. That's what I know more about and --
Mr Bisson: But your colleague, maybe?
Ms Rockett-Ulicki: I'm not sure if David could answer that question or not, but I certainly feel that education, communication, training is the most important factor.
Mr Bisson: I don't disagree with you on that point. Do you feel this legislation is going to bring us closer to being able to prevent accidents in the future by reducing rates to employers and by not moving forward on the education side?
Mr Scrymgeour: I am not an expert on the details of this legislation, but we believe very strongly and promote very strongly, not even so much that there should be an economic disincentive, but there is an economic incentive to employers and workers to engage in education and prevention. It is just good business practice. Everybody loses when somebody gets injured.
Mr Bisson: I think we agree the problem is that the act doesn't do that. Just a follow-up to that is we've done great strides in being able to prevent drunk driving. There's stuff this government has done that is very positive. There's stuff our government and the previous Liberal government did that was positive, and there were two keys to it: lots of public education so that we understand it's a bad thing, and at the other end a financial disincentive to those people who were the perpetrators of the crime. Finally, we've gone to licence suspension, which is in question now, but yet again it was a step in the right direction.
If I were to take the analogy of what this legislation does towards drunk driving, it would be like saying, "I'm going to lessen the fine for the drunk driver and I'm going to decrease the benefit to the person who got struck." I'm wondering how that would improve anything when it comes to the issues of drunk driving. That's basically what this stuff does.
Mr Scrymgeour: I guess just a comment of philosophy. It has certainly been our experience that the job gets done better and more reliably when there is a reliance not on a vague parental government, but a reliance on the factory floor and the employers and the workers to be accountable for what happens. I believe that's where the result will come from.
Mr Bisson: That's part of what happened under the older legislation, the right to refuse, the strengths of the Occupational Health and Safety Act and the health and safety agency, mandated health and safety committees, workers being involved in all of that, all of which has been taken away.
Mr Hastings: Mr Scrymgeour and Ms Rockett-Ulicki, what I'd like to know is, the number of years you've been in the training business and getting people back to work, I suspect, not just for supports to getting them there, is there any evidence of a success ratio model of actual job placements, regardless of whether the model has been developed by the private side of the vocational rehab industry or by the public side? Because throughout most of these hearings we've never really seen much evidence as to, aside from specific companies which either have a unionized work environment with a fairly well-worked-out, managed return-to-work program that's very specifically staged, probably negotiated if it's in a collective bargaining agreement, or really no such leverage in a non-unionized environment.
The second item I'd like you to deal with is how you see the role clarification for the WCB if you want it to -- Mr Scrymgeour, you were mentioning that you could see the WCB acting in a sort of monitoring, check role, similar to the Ministry of Education and Training under the Private Vocational Schools Act. I get very uncomfortable with the idea that the WCB, aside from being a referee in disputes where under the proposed legislation, neither party could come to a successful outcome on an RTW plan. How would the WCB be able to act in that role that you allude to under MET?
Mr Scrymgeour: To take your second question first, and Jan may want to address your first one, I would prefer a minimum critical regulation to taxation. I would prefer to see the government play the role of setting a standard and holding an industry accountable than delivering the service itself. I believe there is some minimum level of direction-setting that must be there and then after that it comes down to the employers, the employees and the providers to take responsibility to get the job done within the parameters that the government would outline.
Ms Rockett-Ulicki: To your first question, in the 15 years I've been involved in the training and working with WCB clients -- I can get you the actual statistics -- probably about 85% of the people we have worked with have gone on to further education and training and have gone on to work placement.
Mr Maves: Just quickly, you spoke of education and the first purpose of the act, as enunciated by the act, is "To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases." To that end, the functions of the board are: "To promote public awareness of occupational health and safety"; "To educate employers, workers and other persons about occupational health and safety"; "To foster a commitment to occupational health and safety among employers, workers and others." I'm assuming that's what you mean by "is the proper way to go" with regard to prevention.
Ms Rockett-Ulicki: Definitely, I think promotion, awareness, education are the ways to go.
The Chair: With that, the members of the committee thank you for taking the time to bring your ideas and experience before us today.
Ms Rockett-Ulicki: We thank you for your time.
ONTARIO MEDICAL ASSOCIATION, ANAESTHETIC AND CHRONIC PAIN SECTIONS
The Chair: Our next presenters are representatives from the anaesthetic and chronic pain sections, the Ontario Medical Association, please. Good afternoon and welcome. Please introduce yourself for the Hansard record. You have 20 minutes for presentation time.
Dr Ellen Thompson: My name is Dr Ellen Thompson. I am a consultant anaesthetist with training and expertise in the area of chronic pain management.
Mr Bisson: You're not going to put us to sleep, are you?
Dr Thompson: I always find it prudent to warn any audience that since my main occupation is in anaesthesia, anyone who is found drifting off to sleep will be asked to provide their OHIP card, or maybe this afternoon I'll just bill WCB.
For the past 20 years or so I have also been in the business of treating chronic pain patients and I have long been deeply concerned with the way the Ontario Workers' Compensation Board does business. I'm a member of the Canadian Pain Society, of the American Pain Society, of the International Association for the Study of Pain. I'm recently on the executive of the Canadian Pain Society. On behalf of the OMA section of anaesthetists and of the new OMA section of chronic pain physicians, I wrote the response to the proposed Bill 99 legislation, and you will find that in the handout I have provided.
I'm also here as an individual with long experience in the treatment of chronic pain and as a taxpayer to point out the problems with the current legislation and to suggest to you ways of far more cost-effective treatment and approach to workers with persistent pain. In other words, there is a win-win solution possible.
I'd like you to go to the second page of the submission, which shows a graph from the WCB's own data that basically show that after a number of weeks a percentage of injured workers go back to work but there is a percentage, approximately 15% to 20%, which doesn't. Of the 300,000 or so claims per year to the WCB, approximately half result in lost time from work. Of these 150,000 individuals, 70% to 80% represent claims over back injuries, sprains, strains of the cervical, thoracic or lumbar spine. These are the problem cases. The problem is not people who lose a limb, who have major injuries that can be demonstrated on X-rays. There is little argument and litigation or problem regarding those cases. The problem cases are the ones where there is chronic, persistent pain which disables a worker from returning to his or her occupation.
The current legislation reflects that total confusion about chronic musculoskeletal pain which has bedevilled the medical profession. It is my profession that is guilty of these problems and I'll try to show where it all stems from. It starts with the fact that when I trained in medicine and currently in medical curricula there is very little useful knowledge being taught about chronic pain in general, and the commonest form of pain, which is low back pain, in particular.
Going back to page 1, I'm quoting some of the old so-called experts, starting with Alf Nachemson, who is a Swedish orthopaedic surgeon. He, after a couple of decades of somewhat fruitless endeavour, stated: "Doctors should not cure back pain, politicians should."
Mr Bisson: We haven't been too successful.
Dr Thompson: I know. A Scottish colleague of his, Dr Waddell, wrote in an award-winning paper in 1987 that 70% to 80% of people with back pain can benefit from surgery, but that only applies to 1% of all people with low back pain. In other words, this surgeon is saying that of 1,000 people with low back pain seven or eight can be expected to benefit from surgery. Surgery has long been overutilized. It's costly and it has caused a great deal of disability.
When this was established, psychologists entered the treatment arena, with Bill Fordyce, who is now nearly 80 years old, developing the idea of psychogenic pain and how faulty psychological processes led to some people having persistent pain. Ironically, the same Dr Fordyce in 1995 edited a report entitled Low Back Pain in the Workplace -- I have brought a copy -- which basically states that the medical treatment of low back pain has failed. Another expert, Dr Harold Merskey from London, Ontario, has shown how in fact a lot of the pain that was thought to be psychogenic has an organic basis -- neurochemical or neuroanatomical/genetic.
I do not intend any disrespect, but I profoundly disagree with Dr Nachemson. You politicians cannot cure back pain. What you can do is to ask the old failed experts and their adherents, of which I'm afraid the Workers' Compensation Board experts are representatives, to move over and permit other approaches by other physicians who have learned from other experts how to approach the treatment of workplace injuries of the type we are discussing.
Implementation of the proposed legislation as is will result in a large number of individuals with potentially curable or treatable pain now being de-insured and written off and ending up on social assistance of some form or other. That's a lose-lose situation. There is a great deal of new data coming up from researchers, from science labs, from the pharmaceutical industry, so that people who have been difficult to treat, resistant to treatment are treatable and curable and can return to their previous work.
The experts who have taught me and from whom I have learned how to approach this start with Dr John J. Bonica, an anaesthesiologist who died in 1994. He wrote that the most common forms of pain are myofascial pain syndromes, which are the commonest forms of shoulder, neck, low back pain and "among the most frequent causes of severe, disabling pain." Here's the key: "Once recognized, however, these disorders are relatively simple to manage." That's what has been the problem up to the present with the rehabilitation that the Workers' Compensation Board has authorized.
Other experts -- I'll bring out the book. Janet Travell started work in the 1950s. She's now nearly 95 years old. She wrote two volumes, of which this is one, with a co-worker on this type of pain. She was Jack Kennedy's personal physician. He had some low back pain, as I think you've heard.
The workers' compensation expert panel stresses evidence-based approaches. They have ignored a very large number of books, publications and scientific work and thus they have produced a very flawed, faulty concept, starting with the definition of the chronic pain states. They cite "chronic pain syndrome, fibromyalgia, fibromyalgia syndrome, fibrositis and (all) similar and related conditions." There is no mention there of myofascial pain syndrome, which is the commonest cause of low back pain in injured workers, as well as the neck-arm pain that is experienced by people who sit at keyboards, the so-called repetitive strain injury.
Myofascial pain can arise from so-called "trivial" soft-tissue injuries, which is why injury prevention may not be the answer.
I shall go on to specific comments on the proposed bill. The stated goals are to prevent chronic pain and facilitate a safe and timely return to work. This, of course, we all agree on. The key element is early, effective treatment, and the first-line individuals, who will be the nurse-managers, will have to be educated in how to recognize this form of pain and then channel the individuals who are found to be at risk for it towards effective treatment in an early and efficient manner.
There is mention in the regulations of case management and, to me, that term has very negative connotations. It's something I'm familiar with from the rehabilitation of injured motorists in the Rae legislation about auto insurance. I believe that legislation is being redrawn currently because the case management industry resulted in very little benefit to the injured motorists and a large cost to the insurance industry. Effective case management would be based on the identification or flagging of individuals who are at risk for chronic pain, and this is key to understanding how 80% of injured workers return to work with or without treatment in approximately four to a maximum of 12 weeks.
The 20% who do not follow this path likely have, according to scientists, a genetic predisposition towards this form of musculoskeletal pain. It is multifactorial in that environmental stresses and, certainly, injuries will precipitate it. To talk about "usual recovery time," which is used repeatedly, yes, it will apply to the 80% who currently are not the problem, but it will fail the 20% who are programmed to go on to chronic pain, are at risk for chronic pain, and there is nothing in the proposed legislation that will actually effectively treat these individuals.
The other problem I have with the proposed regulation is that they identified these certain pain states, of which they neglect to mention the most common one, but nevertheless, this represents "pain for which there is insufficient evidence to indicate that a physical abnormality...is the cause of pain." That evidence does exist. I have provided quite a few references in the bibliography at the end of the handout.
I have wondered, as a layperson with no legal training, whether in fact to de-insure these individuals who may have genetic acquired predisposition to chronic pain might offend against a basic premise of British-Canadian jurisprudence, which is the "thin skull" syndrome, that somebody who is at risk should not be penalized when in fact they are injured.
Furthermore, the proposal states that the pain management team should consist of physician, psychologist, physiotherapist or chiropractor. I'd comment that for most of these individuals, since there is no psychological damage causing the problem, if we can remove their pain efficiently, very few of them actually need psychological intervention.
They have identified particular treatment forms: stress management, relaxation training and biofeedback. That's fine and relaxation training has been shown to be of some help. Biofeedback, however, is labour-intensive, requires costly electronic equipment and has been shown to be no more effective than relaxation training.
In summary, the proposed treatment is ineffective. The time: Many people have said four weeks is unrealistic. If we can actually get to these people and treat them with effective treatment methods, then maybe we can do a lot with those four weeks. I have also added three case histories, which are on the third page, of patients who have been treated recently in my pain clinic and who, according to the outline of Bill 99, would all have been written off. They would have been denied further treatment. All three had their so-called injury as a result of a relatively minor trauma but it long-term pain and dysfunction persisted.
At the present time, I don't get to see these people until at least a year, often two years, down the road, which is when, as I said, they would be written off. The fact that we can still then turn them around and return them to work, at a cost, which I have included, that I think is considerable but is still a lot less than the projected costs for ineffectual treatment.
The Ontario legislation doesn't actually put numbers on it, but I obtained a copy of the Nova Scotia legislation, on which the Ontario legislation is modelled, and here they spell out that injured workers are to be treated for a total maximum of six weeks for a total maximum cost of $10,000. I tell you, with effective treatment systems we can treat people for a lot less money than that and actually achieve results.
I ask you again not to allow Bill 99 to be passed the way it is but to allow those of us who can furnish a better approach, a more cost-effective approach, to have an opportunity. Thank you.
The Chair: Thank you very much. There is questioning time for only one caucus and it will be the Liberal caucus, please.
Mr Patten: Thank you. That was very enlightening. If the government listens to the scientific data, there's no question that there will be amendments to the bill, because the bill would not, as presently proposed, stand up to scrutiny and the testimony you have provided.
I'm trying to understand the scenario as you present it. Let me see if I'm correct. One is that part of the problem at the moment with lower back pain is that, number one, most doctors who are doing the examinations are really not trained and able to provide, in your opinion, a qualified diagnosis, and that in 80% of the cases the general rule of the thumb tends to work but most of the energy seems to be going into the 20% who have a variety of indicators and the record of surgery is very poor. There are alternatives.
I believe the legislation suggests that the board can overrule or suggest to someone that they may lose a portion of their benefits unless surgery is performed on them. Did you see that section in there?
Dr Thompson: No, I didn't see that section. I have seen it in practice up to the present and it's always horrifying. People who come to me who have had surgery are far harder to cure, so this definitely must change. In fact, I would like to submit to you that if Bill 99 were passed as is, it would be very difficult to justify the continued existence of the Workers' Compensation Board, because the 80% who go on to get better with or without treatment can be handled very adequately with family physicians and so on. If we're about to cut off the difficult patients, then what's the function of this expensive bureaucracy?
However, if we could use the board and its framework to use effective treatment strategies, I would love to be able to train those nurse-managers. I would love to expand and provide a more detailed outline of an effective, cost-effective treatment program. I have an outline on page 6.
Mr Patten: How long do you think the training would take?
Dr Thompson: Actually, that would not take long. A week's course would enable most of these nurses to do an adequate job.
Mr Maves: On a point of order, Madam Chair --
The Chair: Let me thank the presenter.
Thank you for coming this afternoon.
The point of order from Mr Maves, please.
Mr Maves: The Workers' Compensation Board is presently carrying out this consultation on chronic pain. I assume you have had receipt of that and are responding to the WCB's consultation also. If not, I can hand you this consultation paper and urge you to make your views known on that consultation.
Dr Thompson: I'd love to do that. The document I responded to is the draft. It's called A Description of Chronic Pain Program, and then the --
Mr Maves: That's right. Have you submitted your report in your response to WCB as they're doing that consultation?
Dr Thompson: I have submitted it to this committee and also to the OMA staff.
Mr Maves: Can I encourage you to submit it to them?
Dr Thompson: I'll be very happy to do so.
Mr Maves: I can even give you the address and so on.
Dr Thompson: I'll be grateful to have that.
The Chair: It's not actually a point of order. I'm not quite sure what it is, but it's okay.
Mr Christopherson: Since I am one of those who believe that the cut of compensation to chronic pain and mental stress sufferers is just based on saving dollars and has nothing to do with injured workers other than to leave them in pain without money, I would ask that either the legislative researcher or the parliamentary assistant provide the committee with the projected savings, which the board would obviously have done as they were preparing this particular document.
The Chair: Duly noted. The researcher has heard it and ministry staff as well.
PETERBOROUGH AND DISTRICT LABOUR COUNCIL
The Chair: Our next presenters, please, from the Peterborough and District Labour Council. Good afternoon and welcome.
Mr Thomas Veitch: Good afternoon. My name is Thomas Veitch and I am president of the Peterborough and District Labour Council. I'm sorry, but I don't have copies of my submission for everybody because I did it on the fly.
The Chair: If you want to leave it, the clerk will be happy to get a copy to each of us. It's your choice.
Mr Veitch: Okay. Thank you.
In recent years, it has been my experience to author a number of presentations for both the labour council and my local. Most have been with regard to workers' compensation. Most were very pointed and direct but rewritten because they were too caustic. With Bill 99, the gloves are off. This bill is the most frightening and ominous piece of legislation for working people and injured workers to date. I have written reports on Bill 162; Bill 165; the PLMAC agreement; the Royal Commission on Workers' Compensation; the Jackson report, New Directions for Workers' Compensation Reform; and now Bill 99, the Workplace Safety and Insurance Act -- but for what purpose?
The Meredith royal commission on workmen's compensation in 1913 recommended a system of compensation to alleviate injured workers' claims on the court system, despite the fact that Meredith had been head of the Conservative opposition in the Ontario Legislature. It provided for guaranteed compensation for workers while impaired without an obligation to prove negligence in order to receive benefits. It was to be funded by employer liability by assessment administered by an independent agency, and in exchange workers would not be allowed to sue their employers for compensation. This has been referred to as the great compromise and established workers' compensation, not as a form of welfare, but as a right. Meredith's recommendations became law in Ontario in 1914.
On November 26, 1996, Bill 99 was introduced. Over the years, the WCB system was improved, allowing for direct input by labour and injured workers through a bipartite system both at the board and WCAT. Inclusiveness has been eliminated in favour of political employer appointees after the dissolution of the bipartite structure. Further, there are threats to disband the Workers' Health and Safety Centre, the ODP and OHCOW, all gains under previous governments that included Conservatives and Liberals, all worker protections. Why the change? To show that the government is proactive and responsive to business needs at the expense of injured workers? They seem to have lost the point of why WCB was established: so that employers could keep what is theirs.
On the question of unfunded liability and WCB in crisis, unfunded liability is the money owed to fund workers' claims from injury to grave, an amount funded by employer premiums. It is the entire cost of a claim until age 100, based on actuarial tables. The best analogy I can give is that it is the cost of everything you are going to spend for the rest of your life for food, shelter, entertainment, education, clothing etc. If somebody told you that you had to come up with all that money within a specified time or risk imprisonment, then I assure you prisons would be filled to capacity. Crisis comes from this, and if this crisis were in fact real, why would the government reduce employer premiums?
As to the unfunded liability being a burden to taxpayers, we all know this is a crock put out there by the government in an attempt to press all the buttons, blow all the whistles, pull all the cords and confuse the issue with misinformation and lies.
Let's run through some of this new and improved WCB legislation. The purpose clause adds the promotion of workplace health and safety as the act's first purpose, as long as it's done "in a financially responsible and accountable manner." Bill 99 makes it apparent that Ontario statistically would be the safest jurisdiction on earth, and that's the government's goal. Claims would be reduced but not injuries. Lip-service would be paid to accident prevention and safe return to work.
Section 13 of the act provides for chronic pain and would be limited or excluded by regulation. The government has said it will create regulations that will provide benefits for chronic pain based on normal healing times. Chronic pain is a real disability which can last a lifetime. Board decisions under a vague regulation such as this will inevitably be reviewed by courts.
Section 21: A worker's physician will be forced to provide workers' employers with medical information about a worker's injury. The premise is to expedite return to work, but how many employers are going to use this information in a positive and supportive way to help a worker back to appropriate employment? If there is no problem with returning the injured worker to work, why would the employer need to see this medical information?
Section 40: This section makes it easier and more economical for an employer to force an injured worker back to work through a punitive return-to-work plan than preventing the accident in the first place. Like section 21, this section discourages prevention and is designed to paper over the real accident statistics and workplace conditions to help Ontario, statistically, to become the safest place on earth. It encourages harassing phone calls from the employer to the injured worker.
Section 42: This section replaces vocational rehabilitation with labour market re-entry. It does not mention whether the LMR plan is geared to approximate pre-accident earnings. Subsection 42(3) opens up the floodgates for privatization of vocational rehabilitation, placing the making of profit off the injured worker's misfortune as a higher priority than the worker's welfare. The worker will be forced to participate in the plan whether or not the worker believes the plan suits their needs.
There is nothing mentioned about what criteria will be used for determining the LMR, whether the plan will include a job search like subsections 52(12) and (13) of the current act provide, nor now the injured worker goes about objecting or renegotiating a more appropriate plan.
Finally, the office of the worker adviser will be prohibited from representing union members. This bizarre discrimination by government service appears to be an attempt to justify slashing the OWA's budget by 30%. However, after investigating the OWA's client waiting list, only a handful of unionized workers are being serviced. Again, non-union workers will feel the brunt of the cutback.
That's my presentation, other than to say that Minister Witmer has said time and time again that her goal is to improve. From having a look at the act, I see very little that will improve the service or the enforcement of the act. The labour movement has always argued that ergonomics is the key to a safe workplace and it's just not there.
The Chair: We have three minutes remaining per caucus for questioning. We'll begin with the Liberal caucus.
Mr Gerretsen: We've started about three times now.
The Chair: Actually, no. I started with the government caucus, then we went to the Liberals. I apologize to you; I did. It's to the NDP caucus. Excuse me.
Mr Christopherson: Thank you for the presentation. Tom, you raised something that needs to be underscored as often as we possibly can.
Doctor Thompson, could you hold on one second. I didn't get a chance to ask you publicly, but I'd like to ask you something before you leave. Sorry to centre you out like that but I did want to have a quick chat with you.
Tom, you mentioned the fact that taxpayers do not owe this debt. It's amazing. I'll bet if you did a poll, you would find that 90% if not more of the population believe that the WCB unfunded liability is a debt of the people of Ontario and is tied into the debt-and-deficit arguments that exist in the political arena, and it's so important. Regardless of the gyrations of Mr Hastings, the fact of the matter is that employers owe that money. That's the end of that sentence, and we've got to get that message out, because I think there's a lot of people out there who think, "That's more of the debt and it's those damned injured workers." They buy the government's idea that there's a label on them that says "special interest" and therefore it's one of "them," and "them" is always the problem in our society. If we could just fix "them," everything would be okay. The reality of course is that any one of us can become "them" in a nanosecond.
Secondly, taxpayers don't owe that money. It's money that employers owe, and I appreciate your raising it.
Mr Veitch: Bill 99 makes it quite easy for it to become a burden on the taxpayer, because if people are not eligible for WCB or anything else, where are they going to turn except the public purse -- welfare?
Mr Christopherson: Absolutely. In fact, we've had a number of presentations from our expert witnesses, professionals -- doctors and the like -- who have made that very statement. They've gone one step beyond their medical analysis and pointed out that if these people are denied, they're not going to be able to work because they're still sick and it is going to fall back. So you're right to the extent that this puts an added burden on, but the argument that the unfunded liability is a taxpayer debt is wrong, and we need to get that message out.
Mr Jim Brown (Scarborough West): Mr Christopherson, I'm so glad that you recognize the nature of the unfunded debt of workers' comp. I challenge your opinion that the taxpayers are not ultimately responsible and have a contingent liability, if not a real liability, for the unfunded liability.
Mr Christopherson: I'll come to your riding and we'll have a debate.
Mr Jim Brown: The other thing is, lawyer Garth Dee tried to upset something called "generally accepted accounting principles" when he made his presentation earlier. As a professional accountant, I'm astonished at your statement that we pushed all buttons and that the unfunded liability is a crock. What lawyer Dee did earlier is he challenged an actuarial firm that stated what the unfunded liability was, and they're professionals in their field. He also challenged a chartered accountancy firm that prepared the financial statements and gave an opinion on the financial statements as to what the values of the assets were and what the unfunded liability was. I'm a little upset that people are taking runs at chartered accountants and --
The Chair: Order.
Mr Jim Brown: In actual fact, these are independent professional people that give their opinion. We pay them a fee, but they're independent.
I would just like to go over a couple of other things from 1986 until now. In 1986 there was a deficit of $826 million; in 1987, $484 million; $659 million; $1.119 billion; $619 million; $1.2 billion. In 1992, during the previous government's regime, there was a deficit of $681 million, followed in 1993 by $504 million. Not once were the accounting methods changed.
If you take those, plus the beginning balance of the unfunded liability, throughout the NDP regime everything has been consistent and it's produced the current unfunded liability. It all adds up and subtracts. So I don't know where you come up with your --
Mr Veitch: Okay. First off, you have to understand that the NDP was only a short-term government. They ruled for four years.
Mr Hastings: Five years.
Mr Veitch: Fine. The fact of the matter is that the Conservatives ruled Ontario for a number of years. There was the Peterson government. The unfunded liability was still there. It wasn't a problem then and it's my understanding from reading board documentation that the unfunded liability would have been completely eliminated by the year 2014 had things just carried on the way they were. If there is a crisis with unfunded liability, why in the name of God would the government be giving back 5%?
Mr Gerretsen: Thank you very much. I find it rather strange that Mr Dee is being attacked here this afternoon, when he's not present, on his financial figures which I quite frankly found to be extremely revealing.
Mr Jim Brown: That's why you're a lawyer and I'm an accountant.
Mr Gerretsen: Just a minute. If we're talking about fairness, about attacking people, I don't think we should be taking a shot at somebody that's no longer here to defend himself.
The Conservative government would like to have you believe that there's an unfunded liability of $8.6 billion, but that's based on the theory that there will be no more work done in the province of Ontario and no more employers will contribute to that fund over the next 50 or 60 years, and that is absolute nonsense.
The Chair: Order, please.
Mr Gerretsen: That is the only scenario under which you could say yes, the money is owing by the taxpayers of Ontario. Because employers are going to be paying into the system over the next 50 years. As he has clearly indicated, the fund is no worse off than it was 10 years ago in real dollars, and besides that, in effect, the system has made about $500 million a year over the last couple of years. So to attack him at this stage is totally unfair.
I guess the question that I have of you, Mr Veitch, is, how would you, in a perfect world, like to see this act -- not the act that's before us but the current workers' compensation system -- changed to actually make it a better plan for everybody, employer and employee?
Mr Veitch: More broad-based consultation for starts. The fact is that government cannot sit down and just say: "Fine, we've got consultants. We're going to hire them. We're going to have them do this." By God, we've got a roomful of people here, and guess what? In other cities we'd have other rooms full of people -- injured workers, labour, business. They could all sit at the same table and negotiate how this is going to work best for all people concerned.
These are the real stakeholders. This is supposed to be an agency at arm's length from the government, but the fact is the government wants to pull it in. They want to just draw it in and say, "This is the way it's going to be, like it or not."
Mr Gerretsen: As I've already stated earlier here today, if the unfunded liability is really such a major problem for the government, why the heck are they cutting employers' premiums by 5%? I can't understand that.
The Chair: Thank you very much. On behalf of the members of the committee, your input this afternoon is appreciated.
SD&G RESOURCE CENTRE FOR INJURED WORKERS
ONTARIO NETWORK OF INJURED WORKERS GROUPS
The Chair: I call now representatives from SD&G Resource Centre for Injured Workers.
Mrs Beate Wildraut: I'll share my time with Mr Karl Crevar and Mr Randall.
The first thing I would like to do is stand up and have a moment of silence because what I'm going to present hopefully will wake up some hearts in here.
The committee observed a moment's silence.
Mrs Wildraut: Thank you. My name is Beate Wildraut, president of the SD&G Resource Centre for Injured Workers in Cornwall, Ontario. I've been an injured worker since 1988. In 1992, after two surgeries and an unsuccessful return to gainful employment, I dedicated my time to improving the conditions of injured workers in our area.
I brought with me a brief that I asked a lady to write up for me. In late November, I was a witness of a funeral. I would like to read this brief to you:
"I am a 41-year-old widow of an injured worker. Usually a story such as mine starts from the beginning. Unfortunately, there isn't enough time today to go into great detail so I will focus on the last year. My late husband had worked at" -- certain manufacturers; we took them out -- "and due to his injuries had lost all feeling in his fingers and the numbness was moving into his arm. He wore two braces: one was a full arm brace and the other was a hand brace. He had a lot of pain. The Workers' Compensation Board felt that the only job he could be trained for was as a tractor trailer driver, so they paid for his course, which he took and passed.
"They gave him one year to find a job. In that year, he looked almost every day. He was at the local unemployment office five days out of seven. On my days off we would both go out for the day and place résumés all over the area. But nothing ever came of it. When you put in an application, they always ask, 'Have you ever been on workers' compensation?' and he would always answer truthfully and say, 'Yes,' until the last few times. You see, if he didn't have a job within a year he would be cut off. They did it before. He once missed school due to excessive pain, so he did what most of us would do: he lied, praying, hoping that someone would call and tell him he had a job. But no one ever did.
"Well, in September of 1996 he was cut off. His year was up and no employer had hired him, but I guess you can't really blame them. I mean, what if his arm gave out and somehow caused a large accident? From September to November he still went to Ottawa every day to send out résumés, but still nothing.
"I guess after months of negative answers, depression really sets in. On November 9, 1996, I returned home from mass being said for my father, who had died four months earlier. I walked into the house and yelled to tell him I was home, but no one answered. I just happened to turn to the window in our parlour, which looks directly into our garage and there he was hanging in front of me. I ran out the door into the garage. I tried to hold his body up, hoping the rope might loosen. When I looked at him, I saw him stare at me with his tongue hanging out and mucous running from his mouth and nose, I knew in my heart that his fight was over. No more pain. No more worries. But I wasn't giving in. I had to let go of his body so that I could get help.
"I ran into the house and called his best friend, who lived next door, to come and help. I screamed so much that it is hard to remember what I said on the phone. His friend ran right over. He started screaming and crying. He grabbed the chair or ladder, I'm not sure which, and yelled at me to hold is body up so he could cut him down. It seemed to take forever but the rope finally split and my husband fell into my arms and we laid him down. Our other neighbour, who was an OPP officer, ran into the garage. I remember begging him to do something, but he checked and there was nothing, no pulse or heart beat.
"When they arrived, they took my husband's friend in the car and questioned him for hours and they kept me in the dining room for questioning. Some of my family and my husband's family came over screaming and crying after seeing his body on the garage floor. None of us could go in to even hold him until they were all finished and the coroner was done. He lay there in the cold for four hours with strangers all around him. I remember thinking: 'Why don't you all leave him alone? He has been through enough. He is not an animal; he's a human being.' They finally let a few of us go in before the funeral home took him away. I saw his eyes again and heard our 21-year-old daughter begging her dad to come back. I will never forget those screams.
"That day, while the police were questioning me, they asked why might my husband do this. I thought, 'Why don't you ask his case worker?' Why doesn't the government ever ask us before they do anything -- when they cut health care, when they cut pensions or when they cut people off? Most of these people really want to work, but for some reason they get trained for jobs for which no one will hire them. We are not just claim numbers or pension numbers; we are human beings who have a right to work and be happy.
"I received a letter from workers' compensation about a month after my husband's death, stating, 'Sorry to hear about your relative's death,' -- notice the "relative," not 'husband.' 'You are not entitled to his pension nor any funeral expenses, unless you can prove his death was due to his injury.' To them, I say it differently: It was due to them.
"The government wonders why people rebel or are very angry. Well, I know quite a few people who are angry over my husband's death and whom they blame. I hope and pray that any of you here today who are on pensions of workers' compensation don't give in or give up to or for anybody. Fight hard for what is yours and to keep what is yours. I pray my family will be happy again and not feel like we could have done more. If any of you are having a hard time and need a shoulder, my family and I could be that shoulder. Injured workers know how to get us, if needed. If anyone can help us in our fight for Rick, please contact Injured Workers in Cornwall. God bless you all."
Mr Terry Randall: Ladies and gentlemen, my name is Terry Randall and I'm an injured worker in Kingston. I've been sitting here all day listening to some interesting information and a whole bunch of garbage.
I filed a claim for workers' comp on the advice of my physician a year ago in May and I've been waiting since September 1996 to get an appeal to the Workers' Compensation Board. They did an investigation and they said, "Oh, we know you did the work, but we don't believe it caused any damage." However, X-rays and doctors don't lie for me.
I agree that we need reform on workers' compensation. We need reform because without my wife working, I'd have lost everything I worked 30 years to get. You people are going to take that all away because of your blatant stupidity. There's no other excuse for it. It's just dollars-and-cents stupidity, and I don't think there's one of you here who's hearing a word I'm saying. That's what really makes me sick.
You people are our elected representatives and you're supposed to look out for my best interests. You're not doing that and you are not looking out for the best interests of the citizens of Ontario. It's time you woke and smelled the coffee. This is not the Workers' Compensation Board any more. I think you should change the name. When you change the whole format, change the name to the Employers' Protection Association because you're not doing us any favours. I mean, how many people do you want to commit suicide, how many people have to die because of your blatant stupidity?
The big shots who are sitting up there, they don't come down and talk to us. They send their donkeys down here to fight with us. They send you guys to come down here and sit and laugh and makes jokes and think it's a big joke. You're the ones who are on the front lines and you don't care. I'd like to see one of you guys come down from $5,000-a-month wages, which I was making when I was injured and put off work, to $600 a month and survive. That wouldn't buy your damned coffee.
I don't know why we're here, because you aren't hearing what's going on here. You guys are just not hearing. You're deaf, all of you. Every time somebody brings up a point, all I hear is dollars and cents -- "How much money are we going to save?" Crap. How much money is a life worth? Is it 25%, 10%? You guys aren't worth two cents, none of you -- not two damned cents.
Mrs Wildraut: By Bill 99 workers are now being slaughtered by this government, because we have no protections whatsoever.
Mr Karl Crevar: Good afternoon. My name is Karl Crevar and I'm president of the Ontario Network of Injured Workers. Hopefully, I didn't upset anyone by coming back up here. I was asked to sit in with Beate from SD&G and the injured workers. I stated the last time that I would not refuse any assistance I could provide.
This is the last day, obviously, unless the government side finds within its heart to reconsider hearing the human stories that you heard today. These are real people, real stories. Our children came before you. What we feel is happening to injured workers, what will happen to workers in the future -- those are our children. We hear the discussion -- I don't know the gentleman's name on the end here -- about the unfunded liability, the dollars and cents. We can argue the realities back and forth. The reality is, your government, your Premier created a crisis for the need to change and reform the WCB.
The reality in Bill 99 is that workers are going to be robbed of $15 billion. What sort of message are we sending our children of the future? The plight of those children who have the everyday life they live with their parents is that they're being deprived of parenthood. Think carefully on Bill 99. Think very carefully because its impact is going to be devastating. There's a huge impact. It's not the workers who got hurt at work who are at fault. You're going to drive them into further poverty. You're going to deprive our children of their rights for a future.
I've said it before: I don't know what this magic thing is with Mr Harris about the year 2001, this millennium. What is this millennium? All we can see in Bill 99 is that injured workers are no longer productive, so they're of no use, we're going to throw them on the scrap heap. Morally, that is wrong.
We asked you time and again, and I ask you again, Mr Maves, on behalf of injured workers in this province, if you want to hear the true stories, give the people and the injured workers of this province an opportunity to come before you. Don't shut the door. Withdraw Bill 99. Get back to the table. Talk to the people it's going to impact on. Talk to us. Thank you very much.
The Chair: Thank you very much. There is time remaining for questioning from only one caucus, and that will be the NDP caucus. Mr Bisson.
Mr Bisson: I was expecting Dave to do a question. I know for a lot of people it's frustrating to come here because you get the impression that the government isn't listening, but what you have to know is, the fact that you're here in sheer numbers really brings home to this government how serious this issue is and that people are not going to stand by and watch their Ontario being taken apart brick by brick by a government. At one point they're going to have to pay the price.
I know it might be discouraging at times because you don't think they're listening, but let me tell you, when they go back to their caucus rooms after having gone through these hearings, they're going to be talking about what injured workers and others have to say. What they'll have to say is, "They're pissed at us," and hopefully that will slow them down on other issues in the future. Hopefully, because of your actions we here in the opposition will be able to get some amendments of this legislation. Even though we want it scrapped, maybe we can get some amendments and make it a little better.
Mr Crevar: Thank you, Mr Bisson. Could I respond to that?
The Chair: One minute, please.
Mr Crevar: Very quickly. I want to thank you for your comments, Mr Bisson. I can assure you, if this government is not going to listen to us, and as long as I'm heading up the Ontario Network of Injured Workers Groups, I'm going to be your worst damned nightmare for the next two years. You can rest assured of that.
The Chair: Thank you very much. Mr Bisson, did I hear unparliamentary language when you were speaking?
Mr Bisson: If you did, I withdraw and apologize.
The Chair: Thank you.
ONTARIO MASONRY CONTRACTORS' ASSOCIATION
The Chair: Calling now our final presenter, the Ontario Masonry Contractors' Association, please. Good afternoon, sir, and welcome.
Mr John Blair: My name is John Blair. I am the executive director of the Ontario Masonry Contractors' Association. On behalf of our membership and the people I represent, I'd like to thank this committee for the opportunity we have to come and express our views and our concerns.
By way of introduction, the Ontario Masonry Contractors' Association was established in 1971 and includes manufacturers, suppliers and dealers within our masonry industry, as well as qualified masonry contracting firms. It is also the umbrella organization which is responsible for the organization and implementation of our provincial bargaining with both the International Union of Bricklayers and Allied Craftworkers and the Labourers' International Union of North America. In short, we are unionized masonry contractors.
The OMCA is in general agreement with most of the revisions outlined in Bill 99. However, we are concerned about any structure which would not recognize what we believe is the unique nature of the construction industry in general and the unique character of the masonry industry in particular. The demographics of our industry clearly outline, we believe, that we are an industry in transition, that we have begun a very specific program in response to these demographics of apprenticeship training which we believe will meet the demands of the future, but we are met at the same time with a need to use the high skills of an aging but very capable workforce. Any fair compensation program must incorporate these realities.
The employer-employee relationship in the construction industry is very different than in manufacturing or commerce. Our collective agreements for the most part we believe are restrictive and severely limit the ability and the control the employer may have in implementing return-to-work programs.
As a unionized organization, we are very concerned that our rate classification is unfair and does not in any way recognize the efforts that have been put forward by both unions and contractors in such programs as the Construction Safety Association of Ontario/Masonry and Allied Craftworkers health and safety manual and the CSAO provincial committees; the provincial committee of course being responsible for finding bipartite involvement in the industry for the health and safety of everyone we employ.
We believe an honest analysis of our rate classification data would clearly reveal that the unionized masonry industry is operating in a more responsible and a much more diligent manner than some of our non-union or unorganized sectors. Our members for the most part are frustrated by this situation.
We believe it is possible to have a compensation system which would heighten the benefits available to the injured workers while at the same time would reward those within the industry who would choose to operate in a fair and equitable manner.
I thank you for your time. I realize for you folks this must be a most interesting afternoon. I respectfully submit this on behalf of the Ontario Masonry Contractors' Association.
The Chair: We do have a number of interesting presentations. We have just under five minutes per caucus for questioning. We begin with the government caucus, please.
Mr Hastings: Mr Blair, I wonder if you could go into some detail as to the operations of the apprenticeship program that you have with your union partners, and I wonder if you could comment on some specific suggestions which have been presented by other presenters in both Sudbury and Burlington.
For example, the construction association up in Sudbury suggested, either directly or implied, that the cost of return-to-work programs, particularly because of the nature of the industry, be pooled or shared, particularly for the small one- or two-person company; two brothers, say, own it and probably have three or four people working for them and they're in northern Ontario.
Mr Nolan from the Hamilton Construction Association suggested that a similar approach or some kind of credits be applied for return-to-work provisions in an agreement. I asked him afterwards, because of the very nature of the industry -- fragmented, project-managed, mobile, older-aged folks, with new people wanting to get into this industry -- when an injured worker through no fault of his or her own incurs an accident on the job and probably doesn't have much prospect, depending on the severity of the injury, to get back into their pre-accident employment, whether the return-to-work program would probably be more oriented towards supply or related-type industries rather than the actual job they were in, much as they would like to get back in it, depending on the severity and complexity of the accident.
Those are the general themes that have come up to try to deal with the nature of your industry in terms of making it more successful for return-to-work provisions.
Mr Blair: I believe your question was twofold. It was dealing in the first part with regard to apprenticeship, the second element being related to return to work. I can only speak on the issues related to the masonry industry. I was a contractor for 23 years before I took on the position as executive director for our association.
The nature of the work that we do: I don't think it's a quantum leap to look at the nature of most construction work, but ours tends to be very labour-intensive. It requires a great deal of labour, hard body work, in some regards; high skills but hard body work. For an injury to happen to one of our workers and to believe that in some method, if it were a serious injury, they would actually be able to carry on all of the duties they would need to carry on I think is being very optimistic. Hypothetically, you would want that to happen, but I don't think in the real world, quite honestly, you would be realistic in planning for such things.
That's not to say that it couldn't happen, but the nature of our particular work would demand that there has to be a reorientation or a retraining to some other area that might be either secondary or tertiary to our industry. I don't think the success ratios of return-to-work programs for the masonry industry have been very successful.
With regard to apprenticeship, as I said in my presentation, the demographics of our industry are such that we are very concerned and we have confirmed that we require younger people in our trade. I am pleased to say that we do have a cooperative effort that goes along with our labour people in this regard. We are fortunate as unionized contractors that we have a working relationship at present with our unions. We work hand in hand.
Our training centre, the Ontario Trial Trades Training Centre, is in fact a joint-trustee program. We are accredited there for teaching masonry skills to young people. I cannot honestly say that I would be of the opinion that there would be a lot of success if we were looking to have workers put into that program who had been injured unless it was to learn new skills. I just can't envision that kind of thing operating there.
I don't know if that properly answers all of your question, but that's as good as I'm going to do here this afternoon.
Mr Hastings: In other words, injury prevention or accident prevention education is the real antidote to any worksite injury for your industry.
Mr Blair: I think the cost related to prevention and the things we should be doing in a more cooperative educational manner are far in excess and far more beneficial than those things that happen after the fact. We've had people who have been injured on our job sites and, independent of any other economic consideration, there's a personal side to this thing. When people get hurt, there's no question about the fact that their lives change. You have to address that. That's my answer.
Mr Patten: Thank you, Mr Blair, for your presentation. Some of the things you said we had heard, but some things we hadn't heard before. Were you suggesting that there be a new category? Are you lumped in right now with the whole construction industry, or is it part of it? Are you suggesting that the unionized masonry contractors be a separate category or just the unionized section of the construction industry itself?
Mr Blair: I'm only speaking on our particular rate classification, which is 741. It has been a frustrating part for our people as unionized contractors to look at our industry statistics, to look at the frequencies with which we are compared and then try and address some of the things that we know our members are doing. I'm not in any way, shape or form going to tell you that we are a perfect house -- we are not and there's lots that we as responsible contractors could be doing to better the work sites for the people -- but in comparison to what I consider to be the less organized, less structured, less accountable facets of masonry construction in this province, I believe that an honest analysis of those statistics would reveal that when there is a cooperative union-management effort going on -- and I mean a realistic effort, not just by way of structure -- that result is tangible and can be verified. That is something we believe strongly and we would like to see the government, at least in an honest approach, analyse this data and come back and address this issue.
Mr Patten: I like the idea. I think it helps everybody in the long term. It helps the employers who are responsible and good employers. It recognizes that and it provides an incentive for those who are not as responsible to get their act together and to have safer workplaces. It also provides for being able to identify specifically where the accidents tend to happen and a better ability with smaller numbers to go in and focus on those particular contractors or whatever they may be in any sector. I like your idea. I think it has merit and I think it should be considered.
Mr Christopherson: Thank you for your presentation today. I don't know how long you've had a chance to be in the audience. Have you been here at all for any time?
Mr Blair: Actually, about 10 minutes.
Mr Christopherson: We've been having quite a discussion today, particularly around chronic pain. We've had an expert witness come in, Dr Thompson. She and others have made the case that the government's move to eliminate chronic pain after the usual recovery time virtually eliminates people receiving compensation for chronic pain and is going to force them to either go on social assistance, ultimately, or go back to work when they're not properly healed and likely to reinjure themselves and perhaps a colleague.
Given that, our caucus has particular concern about this move by the government, and I appreciate the documents that were provided to me. This is about saving $1.4 billion. That's what the change in the chronic pain legislation is going to save -- $1.4 billion. That's all this is about: saving money. I wanted to ask you, given the nature of the injuries that your employees face, how you feel about that part of Bill 99.
Mr Blair: First of all, there's no question, just in the short 10 minutes, that it's obvious that there are tremendous emotional issues surrounding all of these revisions, the other part being, of course, that I am not a medical doctor, so I won't address in any way, shape or form those elements of chronic pain.
This will be a very unpopular statement. I think we have to come up with a better means by which we address the honesty and at the same time the importance of properly dealing with people who have chronic pain. I think that there has to be an integrity put back in this system that has been sadly lacking over the last number of years. I don't want to in any way try and undermine or circumvent the importance or the problems that people who have chronic pain have and try and relate that to a $1.4-billion number. People are people. They are individuals and their pain is real. I don't want to be seen or even perceived as manipulating a position based on that with somebody who is in a lot of agony in the course of it. It's an emotional issue and I'm not smart enough to have the proper answer for that one, most certainly.
Mr Christopherson: That's fair enough. Quite frankly, most of us in politics, even those who go on to become ministers, are not experts in the field. You don't have to be a doctor to be a health minister or an engineer to be the Minister of Transportation. We rely on experts and we pick people of high quality and good reputation. They provide the advice and then the decision is made. That's the way this works.
We're in the same boat as you. We have to make those decisions, which is my segue into asking you -- I'm not trying to trip you up -- do you not think, though, that it's appropriate for the government to pay close attention to these expert witnesses? I stand to be corrected by the government members right now, but I can't recall a single professional who came in here and said: "The problem with chronic pain out there is you've got a lot of malingerers and you've got a lot of fakes and a lot of fraud. That's what the real problem is." I don't recall any expert coming in and saying that, doctors, but we sure did have an awful lot of physician experts who came in and said the opposite, that there isn't that much, that that's not what the problem is, the problem is improper treatment etc. But they all agreed that by making this change you're going to leave a lot of legitimately injured workers out in the cold with their pain and no income. Based on that, do you not believe that the government ought to pay very serious attention to these submissions?
Mr Blair: I believe that anybody who would have any sense of compassion or any sense of justice, I don't care whether they're the government or the guy standing on the street corner, when presented with those issues would have to have a strong sense of making sure that things are done right.
I also believe there are things that can happen in life and no amount of our trying to work around them or plan for them or deal with them will properly put them where they ought to be. I don't care how much money I would pay someone for the fact they're injured. At the end of the day, when it's all said and done, they will have been injured.
I also believe that, for much smarter brains than mine, if the government is planning these revisions, as you obviously are or you wouldn't be here, it may be prudent for them to have a graduated, monitored system which allows for the fact that there has to be a living agreement, that you put together a program that is not legislated for the political ability of it but because it's moving and because it has an openness to it. It is a concerted effort by everybody to lay aside the political mantle and deal with these people properly.
Mr Christopherson: That's exactly what we have now. By limiting it, the government's putting an artificial cap. If you were on the work site and you hurt yourself, they would say, "Here's the meat chart. You will be healed," almost as if they could lay their hands on you and make it happen, "in four weeks and after that you're out of luck." The reality is that in most cases, if it's going to take longer than that, it's just going to take longer than that and that's the way your body is.
We have some real concerns, backed up by the experts, and it will be a real crime and a shame if these members of the government caucus here don't go back to the Minister of Labour and say, "This doesn't hold." They should say that about a lot of things, but in particular they ought to say that about the chronic pain: "This doesn't hold, we're going to hurt an awful lot of people. We can't do that." You've looked these people in the eye, you've seen the tears, you ought to go back and do that and properly represent your constituents.
The Chair: Mr Blair, thank you very much. On behalf of the members of the committee, we appreciate you taking the time to come this afternoon.
Colleagues, that is our final presenter for this afternoon. Just a reminder from our researcher that it's hoped that summary number 2 from the research department will be ready for us on Friday afternoon -- trying for Friday afternoon, it might be first thing Monday morning -- and to let you know --
Mr Christopherson: Point of order.
The Chair: I was just about to adjourn.
Mr Christopherson: I appreciate -- I said this once -- whoever provided this, it might have been Jennifer, but it doesn't break down the mental stress. It just says, "retirement income," "prospective benefit reduction," "revised indexation," "chronic pain," and that's it. Somewhere in there would be a separate line for the mental stress, and if that could be found out, I'd appreciate it.
The Chair: All right. Colleagues, we'll reconvene at the call of the Chair when the Legislature resumes next week.
The committee adjourned at 1530.