Wednesday 25 June 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
Provincial Building and Construction Trades Council of Ontario
Mr Patrick Dillon
Mr Jerry Raso
Alliance of Manufacturers and Exporters Canada
Mr Ian Howcroft
Ms Rosa Fiorentino
Provincial Federation of Ontario Fire Fighters
Mr Ron Christie
Mr Tyler Briley
Ontario Psychological Association
Dr Warren Nielson
Dr Ruth Berman
Ontario Network of Injured Workers Groups
Mr Karl Crevar
Mr Phil Biggin
Mr Steve Mantis
Council of Ontario Construction Associations
Mr David Frame
Mr Gary Robertson
Ontario Public Service Employees Union
Ms Leah Casselman
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente: Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président: Mr Jerry J. Ouellette (Oshawa PC)
Mr DominicAgostino (Hamilton East / -Est L)
Mr DavidChristopherson (Hamilton Centre / -Centre ND)
Mr TedChudleigh (Halton North / -Nord PC)
Ms MarilynChurley (Riverdale ND)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs BrendaElliott (Guelph PC)
Mr DougGalt (Northumberland PC)
Mr JohnHastings (Etobicoke-Rexdale PC)
Mr PatHoy (Essex-Kent L)
Mr W. LeoJordan (Lanark-Renfrew PC)
Mr BartMaves (Niagara Falls PC)
Mr John R. O'Toole (Durham East / -Est PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr JosephSpina (Brampton North / -Nord PC)
Substitutions present /Membres remplaçants présents:
Mr TedArnott (Wellington PC)
Mr JackCarroll (Chatham-Kent PC)
Mrs BarbaraFisher (Bruce PC)
Mr JohnGerretsen (Kingston and The Islands / Kingston et Les Îles L)
Mr RichardPatten (Ottawa Centre / -Centre L)
Also taking part /Autres participants et participantes:
Ms ShelleyMartel (Sudbury East / -Est ND)
Clerk / Greffière: Ms Donna Bryce
Staff / Personnel: Ms Lorraine Luski and Mr Andrew McNaught, research officers,
Legislative Research Service
The committee met at 1636 in room 151.
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 afternoon, everyone. Our apologies for beginning late, but duties in the House required our attention at the first. This is our fourth hearing for the standing committee on resources development considering Bill 99, entitled the Workplace Safety and Insurance Act.
Our first order of business is dealing with the report before you of the subcommittee. Do I have a motion to adopt the subcommittee report?
Mr Bart Maves (Niagara Falls): I'll move the motion to adopt the subcommittee report.
The Chair: Any discussion?
Mr Richard Patten (Ottawa Centre): The only comment is that it's too long.
The Chair: Duly noted.
Mr David Christopherson (Hamilton Centre): My comment is that it's too short in terms of the amount of time, and I will again, when I am in a position to do so -- if I can do it now while speaking to this, I will -- move a motion. I seek your guidance, Chair, as to when it would be in order.
The Chair: Let's hear your motion.
Mr Christopherson: The motion is again to extend the hearings to allow all those presenters who wish an opportunity to be heard an opportunity to do so and, second, that there be at least one more meeting in Toronto in a room large enough to accommodate all these injured workers and other interested parties who would like to be there, to fit in rather than seeing them spill over into all the different rooms around the Legislature because we insist on meeting in this small room.
If I could speak to the motion and speak to the report at the same time in the interests of saving time, we had a subcommittee meeting earlier today and it was just totally inadequate to try to look at this entire province and give proper respect to the democratic input that people are entitled to, especially given the attack they're facing in Bill 99.
This is woefully inadequate and does not offer nearly enough time. Six days in Ontario for Bill 99 is a slap in the face to injured workers and their representatives. On Bill 49, which the government itself said was a minor housekeeping bill, when we shamed them into it, they held four weeks of province-wide public hearings. On this, where the government made a commitment to have full province-wide public hearings, we got four half-days here in Toronto and a measly six days across the province. This is totally inadequate and is just more evidence of this government's desire to shut out the public, change the rules, ram through their legislation, and everybody else just be damned, and I'm opposed to it.
The Chair: So your motion is then?
Mr Christopherson: That we extend the hearings to allow all those people who would like to be heard an opportunity to do so, and that there be at least one more meeting in Toronto at a location large enough to accommodate all the injured workers and others who would like to be present at such a meeting.
The Chair: That will be, I guess, an amendment to the first motion. Any further discussion on that amendment?
Ms Shelley Martel (Sudbury East): I, along with my colleague from Welland-Thorold, spoke about this in the committee some two weeks ago when the larger committee had a chance to deal with the report from the subcommittee which dealt at that time with the Toronto hearings, the four half-day Toronto hearings, which are woefully inadequate to deal with a bill of this magnitude. At the time I made the points that I want to reinforce again today.
This Legislature has a long tradition of dealing in a fair and adequate way with respect to hearings when governments want to make changes to workers' compensation law. The government members have to remember that the decisions you are making with Bill 99 will have a dramatic, serious and long-lasting impact on thousands and thousands and thousands of injured workers in this province, on their families and on their ability to provide a livelihood for their families. This is an exceptionally important piece of business that we are dealing with. Every other government that has made major changes to workers' compensation legislation has at least had the decency to allow people who are concerned about legislation -- injured workers, legal clinics, their advocates etc -- to have some say, to have some input, to try and convince the government to make some positive change.
What the government is doing is an insult to people who are hurt when they work and make a contribution to the Ontario economy. It's a slap in the face, because by the short time frame, the four half-days in Toronto and the six days on the road, you are very clearly signalling that you don't care what their opinions are and you don't care what they have to say. You've been given your marching orders from the Minister of Labour and you're going to carry your marching orders out. You don't care what people have to say and you sure don't want to hear about any amendments.
I urge the government members again to reconsider what you are doing. You are going down the wrong path in trying to limit injured workers and their representatives and employers and the public from having some say in a bill that will make such dramatic change to the lives of injured workers. Do the right thing. Extend the hearings to allow people who want to have a chance to have their say to have their say, and ensure that you have a meeting where injured workers in this city, and everywhere else they want to come from, will have a day to make their concerns about what they face every day when they're injured known directly to this committee. I urge you to do that.
Mr Patten: Keeping in mind that we do have some hearings to hear, I would like to support the motion. I believe, though, that procedurally -- I don't know whether you said this to Mr Christopherson, whether the request was to request the House leaders to meet to do this, because I don't believe this committee has the power unto itself to make that decision. If that is in order, if you accept that as a friendly amendment --
Mr Christopherson: It would have to be in the way of a recommendation to the House leaders. The motion is that the hearings be extended and that would be the method.
Mr Patten: I would support that; my sentiments as well.
The Chair: I will take a moment to caution the citizens who are here today. We are running very far behind because of requirements in the House. We are a standing committee of the Legislature. We must abide by the same rules with which the House operates and that includes no demonstrations from the audience. You are very welcome at these hearings but you must abide by the rules in the House, and that is, no applause, no demonstrations. We have a heavy agenda to go through and I ask your indulgence in that regard.
Are there are any further comments on the amendment as proposed? Seeing none, I call a vote. All those in favour of the amendment as proposed? All those opposed? The amendment is lost.
The Chair: Order, please. Excuse me. Unless I have your cooperation in this regard, we will have to call a recess and the hearings cannot continue.
The Chair: Order, please. Unless I have your cooperation in this regard, the committee room will have to be cleared. No one in this room wants that, but you must allow us to conduct our business in an orderly fashion.
We return to the original motion. Is there any further discussion on the original motion? I call the vote.
Mr Christopherson: A recorded vote, please.
Arnott, Carroll, Galt, Maves, O'Toole.
The Chair: The motion carries. That means the subcommittee report is adopted.
PROVINCIAL BUILDING AND CONSTRUCTION TRADES COUNCIL OF ONTARIO
The Chair: We move then to our presenters this afternoon. We'll begin with our first group of presenters, representatives from the Provincial Building and Construction Trades Council of Ontario, Mr Dillon, Mr Lolua and Mr Raso.
Gentlemen, on behalf of the members of the committee, we thank you for your patience in waiting. We apologize for being late but we appreciate your taking the time to be here. Your presentation time of 20 minutes begins now and you're welcome to introduce yourselves for Hansard.
Mr Patrick Dillon: My name is Patrick Dillon, business manager of the Provincial Building and Construction Trades Council. To my right is Jerry Raso, the legal counsel for the Ontario Sheet Metal Workers' and Roofers' Conference, and to my far right is Alex Lolua, government relations representative for the provincial building trades.
The Provincial Building and Construction Trades Council of Ontario is an umbrella organization representing 13 international unions, 130 affiliated local unions, with 100,000 unionized construction workers. I point out at this point in time that not only do we represent and speak for the 100,000 unionized construction workers in the province, we are also the only voice for all the construction workers who work in this province. There is no other organization that can speak for the non-union sector, so when we make our presentations, we do so with all the workers in the province in mind as we speak.
The construction industry is cyclical in nature in that it follows the business cycle. It is even referred to as pro-cyclical because construction tends to have a significant lag time to a change in the business cycle, but when it does react, it does so with greater intensity in either direction.
Construction is characterized by short-term employment, heavy physical labour, temporary job sites and numerous small employers. Unfortunately these key aspects which make construction unique have been virtually ignored by past governments in terms of workers' compensation legislation. It is our hope that these oversights of the past will not continue with the present government. I might point out that we understand the difference between what our hope is and what our expectations might be.
Although the committee is likely to hear the following message repeatedly, it is a very important one for all members to understand. Now, more than ever, we should reflect upon the underlying principles which have led to the concept of workers' compensation:
Workers would relinquish the right to sue for workplace injuries and illnesses if employers would fund a no-fault compensation system;
Workers must be compensated for lost earnings as the result of work-related injuries and diseases;
Funding should be on a collective liability basis to protect small employers from the ruinous cost of an anomalous, single, serious accident.
It is important to keep these underlying principles in mind in any review of the workers' compensation system in this province.
On the issue of notice of accident: Presently, workers can start a claim by one of three persons notifying the Workers' Compensation Board: the worker, the employer or the worker's doctor. Under Bill 99, a claim can only be started by the worker filing a specific form. This is bureaucracy at its worst. There are many unanswered questions: Where does the worker get the form? What language will the form be in? Those types of things. There is also the issue of, if a worker is seriously injured and can't fill out a form, at what point in time does the claim actually get started?
I think everybody on the committee and the government needs to understand that workers aren't independently rich people. They're people who live from pay to pay and when they become injured it doesn't mean that they've given up all their financial responsibilities as a family. Waiting six weeks or eight weeks or 12 weeks -- no way can an injured worker put up with that. They have enough stress in their life from the injury and the problems that has caused in their family life and personally without having to wait for funds.
On the issue of the cut in compensation to 85% of net average earnings: One of the key changes proposed by Bill 99 is a cut in the rate by 5%. The provincial government justifies this cut by alleging that the 90% level encourages injured workers to stay off work since the worker may, in effect, have a full wage replacement, given the taxation treatment of benefits. As such, the government's reasoning is that if these benefits are cut by 5%, an injured worker may be encouraged to return to work sooner rather than later.
The problem with this reasoning is twofold: (1) It assumes that a worker would rather stay at home and receive WCB benefits than return to work if he or she is able to do so; (2) it assumes an injured worker has a great deal of control over when he or she is able to return to work. In my view, an injured worker, if they had their preference, would never be injured in the first place. We should really think about that when we're thinking about whether someone is cheating the system and all those types of things.
On another issue relating to this 5% cut, there has been a lot of talk about the unfunded liability of the Workers' Compensation Board and that somehow injured workers have a responsibility to that. I totally disagree with that. In fact, when you look at the cut of 5%, I find it's not a very principled position for the government to have taken, that injured workers should be cut by 5%, but at the same time -- and that's dealing with the unfunded liability, that somehow they have that responsibility -- cutting the employers' premiums by 5%. If we were going to be principled about it and everybody was taking a cut, which would mean that the employer would have had an additional 5% premium, there might have been some balance that these people -- injured workers and the labour movement -- could understand. I really have some difficulty with just how principled or unprincipled that particular move was.
I'm going to turn to my friend Jerry Raso to continue.
Mr Jerry Raso: Continuing with what Mr Dillon was talking about in terms of cuts of benefits from 90% to 85%, I think a lot of people realize that is completely and totally unjust. But it gets worse than cutting to 85%. The way the bill is presently worded, partially disabled workers will not get a 5% cut, they'll get a 20% to 30% to 40% cut, because the bill says you get 85% of the difference between what you were earning in your pre-accident earnings and you deduct what you are able to earn in suitable employment. That means it's not a cut to 85%, because you're also deducting what you're deemed to be able to earn in some other employment. That is a dramatic change to the way the system is run now.
Presently, we have a two-stage system: temporary benefits and permanent benefits. People get temporary benefits for up to 18 months. If they're totally disabled, they get total benefits or, if they're partially disabled and they're cooperating in a return-to-work program with the accident employer or vocational rehab, they get 90% of their pre-injury earnings. The way the bill is worded, if a person is partially disabled three days after they get hurt but is not able to go back to their accident employer, they don't get 85%; they get 85% of the difference. So they're going to get a dramatic cut, and that's wrong.
We have met with Ministry of Labour officials who have assured us that is not the intent of the legislation, that temporary benefits were meant to continue for at least a period of 12 to 18 months while the person is attempting to get back to work. The question we have for this committee is: Will you amend the act and will you clarify it to ensure that at least for a temporary period injured workers will get full benefits while they're attempting to go back to work?
The second aspect in terms of compensation is section 43(5) of the act which deems that a worker's benefits can be cut to zero if they fail to cooperate with the board in any aspect, including return to work. Again, that's a dramatic change from what is happening now. Presently, if the board deems a worker to be uncooperative, they get their benefits cut to 50%. That too is wrong, but at least it's not zero; it's 50%. That will be devastating to workers if they get cut to zero.
I had a case of a man named Eugene Hoffbauer. He's a sheetmetal worker. He installs duct work. Duct work is filled with fibreglass insulation. He is allergic to fibreglass insulation. He couldn't do his job any more. He stopped working. He was on benefits for about two weeks. The employer notified the compensation board that they could give him modified work helping to build a building and assured the board there was no insulation onsite, which is absolutely ridiculous; new buildings are full of insulation. The board accepted that this was true. He couldn't do it because he was allergic and he got cut to 50%. It took us a year and a half to get him back up to full benefits. Under Bill 99, this man would have been cut to zero and it would have taken him a year and a half to get his benefits back, and that is unjust.
We have been assured by Ministry of Labour officials that the intent is not to cut people to zero, that the system is supposed to stay the way it is now. So again we ask this committee and the government: Will you ensure that the bill will be amended to ensure that people will not be cut to zero?
The third aspect in terms of compensation is for both temporarily and permanently injured workers where, again, you get a deduction for what you are able to earn in suitable employment. The present act states there's a deduction for what you are able to earn in suitable and available employment. The concept is, if there's not a job out there that's available to you, you shouldn't have your benefits cut by that. Bill 99 has deleted the word "available," meaning if you're partially disabled you're not going to get full benefits at any time because they're going to deem you at least to be able to be a crossing guard or a parking lot attendant or something, regardless of whether that job exists or not.
Again we met with Ministry of Labour officials and asked, "Why did you take out the word `available'?" They said: "The intention was not to do that. If there is no job available, if it doesn't at least potentially exist in the newspaper, we're not going to cut benefits by that." The problem is that the bill allows the board to deduct for jobs that do not exist. The ministry said, "That's not our intent," so we request assurance from this government that the bill will be amended and the word "available" will be put back into the act.
Another concern for construction is return to work. It's a massive problem, because of the nature of the construction industry being heavy labour, short-term projects, to get our workers back to work. Bill 99 continues an injustice against construction workers by exempting the duty to re-employ workers by two significant exemptions: First, it does not apply to companies that employ less than 20 workers; and second, it does not apply to workers who have been employed with a company for less than one year.
This goes completely against the construction industry. Our industry is characterized by small employers, the majority of whom have less than 20 employees. Our industry is characterized by workers going from job to job, from company to company. Those two exemptions exclude at least 75% to 80% of our members, and that's unjust. Our industry is united in recognizing that that is wrong. Both the provincial building trades and COCA, the Council of Construction Associations, agree that those exemptions should not apply to construction. Rather, both organizations which represent the trade, both labour and management, recognize and request that the bill be amended to exempt construction from those two exclusions.
Section 41(8) exempts certain sections of the act from applying to construction. The two organizations are requesting that subsections (1) and (2) be included in the exemption clause, section 41(8). The other half of return to work for construction -- we're happy to see that this bill at least recognizes that construction is unique, has its own special needs, and that the return-to-work provisions don't work for construction. Therefore, the bill provides that regulations will be written which will relate to the construction industry.
Again, COCA and the provincial building trades together request that the parties themselves write these regulations. With respect to the compensation board, they won't get it right, and both labour and management recognize this. Together we're asking that we be allowed to write the regulations. We're requesting that this committee make that recommendation.
There are a lot of issues we would like to cover, but since this presentation is so short and you don't allow representatives and people to make proper submissions, we've got one issue left, and that's the question of earnings bases. Clause 53(1)(b) states that earnings will be based on any pattern of employment that results in variations in workers' earnings.
At present workers get benefits based on their regular workweek. For organized workers, that's what's in our collective agreement, either 36 or 40 hours a week. This bill, by requiring the board to consider patterns of employment that result in variations, is going to be devastating for construction workers, because our work is not regular; it's cyclical. We've been in a very bad recession the last few years, and many of our workers have not worked. The way Bill 99 is written, our people will not get decent benefits.
In fact, the board has already begun to implement Bill 99 now. I had a case where a worker had not worked for a year and a half. He finally got a job. He went to a project in Windsor, which was expected to last six to nine months. Because he was not working the year and a half before he got injured, he received $72 a week in benefits from the WCB, based on language such as this. That's not right.
With construction and other industries where work is irregular, what you're trying to do is predict what they would have been doing had they not been injured, and that's almost impossible to do. It's not right to base it on what you had just experienced. In this man's case, Mr Davidson, he got $72 a week because he hadn't worked a year and a half, and then he gets hurt on the first day of his new project and he's punished because he had bad luck for a year and a half. This bill will continue that. It will be devastating for our workers, and again that's unjust.
I think we're over our time.
The Chair: No. You're all right. You have three minutes remaining, actually. You can have that time for questioning if you'd like, or presentation time.
Mr Raso: Sure, questions.
The Chair: As it's only three minutes, we'll go just to one caucus, and that will be to the official opposition.
Mr Patten: Thank you very much for your presentation, and thank you for being patient. Three minutes goes by very quickly, and I have about eight questions. I note some of the other comments in your brief that you didn't address verbally today; there are some suggestions that look very constructive to me, if you'll pardon the pun.
The first question: You identified a difficulty in initiating a claim. The last issue you talked about was being seen essentially as seasonal workers, which I think is a really serious one, but what disturbs me even more is that you suggest that the board now, prior to the legislation, is implementing this already. If that's in effect, I would be interested to know that. I don't believe they should be implementing this at this particular time. I don't think they should implement it anyway. Your recommendation on that would be what, that there be an averaging of salary, or how would you establish it? There are fluctuations in the marketplace.
Mr Raso: That it would continue as in subsection 41(8) now, which states that it's based on the regular workweek of the worker.
Mr Patten: Right, on the hourly basis they have.
Mr Raso: The hourly basis now.
Mr Patten: You said the loss in compensation could be as high as not just the 85% factor, but the net difference between the pre-injury hourly rate -- I'm trying to figure this out; I had a little model here. Let's say a worker is making $20 an hour and gets injured, but can do some other things for, let's say, $10 an hour. The difference is $10 an hour. You're saying you apply the 85% factor to $10, you add it together, and it's $18.50.
Mr Raso: That's what he should be getting.
Mr Patten: That's what he should be getting? You're saying, though, that --
Mr Raso: Well, 90% is what the person should be getting, but 85%.
Mr Patten: Where you said this could be a great deal more than that factor, how would that work?
Mr Raso: If it was the way it is now but reduced from 90% to 85%, it would be 85% of basically $20, and you factor in deductions for taxes etc; 85% of $20 is, I don't know, about $17. In Bill 99, the person will get 85% of $20 minus $10, which is $10, so that person will get $8.50 an hour.
Mr Patten: Deducting the new salary. You're right.
Mr Raso: The person's benefits will be cut in half.
Mr Patten: That's a big difference; a huge difference. You're saying that in your discussions the intent was not there. We'll certainly flag that for amendments when that comes up.
Mr Raso: Thank you.
The Chair: I must interrupt. I'm sorry.
Mr Patten: We'll be in touch with you on the other issues. Thank you very much.
The Chair: Thank you, gentlemen. On behalf of the committee, we thank you for taking the time to bring your presentation before us today.
ALLIANCE OF MANUFACTURERS AND EXPORTERS CANADA
The Chair: I now call upon representatives of the Alliance of Manufacturers and Exporters Canada. Welcome.
Mr Ian Howcroft: Good afternoon. My name is Ian Howcroft, and I am the director of human resources policy at the Alliance of Manufacturers and Exporters Canada. With me is Rosa Fiorentino. She's the workers' compensation specialist with Imperial Oil, and she's also the chair of our workers' compensation committee. Also here this afternoon is Maria Marchese. She's on staff with the alliance; she's our workers' compensation policy adviser.
The alliance would like to thank the members of the standing committee for this opportunity to provide our comments on Bill 99, an act which introduces much-needed change and moves the system in the right direction. Before we provide substantive comments, I'd like to state a few important facts about the alliance and about manufacturing and exporting.
The alliance was created with the merger of the Canadian Manufacturers' Association and the Canadian Exporters' Association in May of last year. The alliance is a national voluntary organization with offices in all provinces. Our member companies produce approximately 75% of Ontario's manufactured output, and manufacturing represents about 80% of the total exports in Ontario. It's also interesting to note that the manufacturing class accounts for almost half the revenue assessments paid to the Workers' Compensation Board.
Over the last four years, exports in manufacturing have driven economic growth in Canada and in Ontario. Manufacturing directly accounts for 26% of Ontario's GDP. With respect to jobs, an important issue for all of us, approximately 19% of all jobs in Ontario are in direct manufacturing, 95% of which are on a full-time basis. Furthermore, between 1993 and 1996, the manufacturing sector has been responsible for 68% of the job growth in Ontario. These statistics clearly demonstrate the important contribution our members make to the province's economy.
I would also like to take this opportunity to advise the committee that we have a long history of involvement in the areas of workers' compensation and health and safety. In fact, we have very active workers' compensation and occupational health and safety committees. Our committees have worked long and hard to provide input to the government to improve Ontario's health and safety system.
I'd now like to turn to the substantive issues dealt with in Bill 99.
First, I'd like to express our support for the government's new vision for accident prevention and the workers' compensation system in the province. We believe Bill 99 is an important first step in creating a more financially viable system, which will have as its cornerstone the heightened importance of accident and injury prevention.
Although we will be providing the committee with a full brief, we'd like to highlight some of those concerns this afternoon. I'd like to turn to Rosa Fiorentino to do that for us.
Ms Rosa Fiorentino: The bill proposes some very significant changes which the alliance is supportive of. These include:
An adjustment in the benefit levels from 90% of net average earnings to 85%. Although a modest adjustment, it is our hope that this adjustment will be the first of many such steps towards achieving benefit levels which equitably compensate workers for wage loss but do not provide a disincentive for injured workers to return to the workplace.
The renaming of the Workers' Compensation Board to the Workplace Safety and Insurance Board. It is our hope that insurance principles will now begin to play a more prevalent role in the administration of the workers' compensation system and in focusing on safety and accident prevention.
The exclusion of benefits for mental stress. This major amendment is an important affirmation of the workers' compensation system's intent as an income replacement scheme for injuries or diseases directly and solely work-related. It is also a clear acknowledgment of the complexity and multifaceted nature of mental stress and the inability to clearly link such a condition solely to the workplace.
The new requirement for workers to file a claim for benefits as soon as possible after an injury and within six months. This important amendment introduces a new concept into the system by its intent that workers have both rights and obligations in the system, which will now be enshrined in law.
The requirement that workers consent to the disclosure to their employer of information provided by health professionals regarding their functional abilities. This is a long-overdue requirement and is vital to an early-return-to-work objective. The alliance has long advocated the need for such disclosure, and linking this disclosure to the receipt of benefits is critical to ensuring that the information is provided. The government in this respect must ensure that overlapping legislation governing health professionals is amended to ensure that such information is released and not stalled by conflicting issues around confidentiality.
As a side comment, we have just recently received the WCB's draft version of the functional abilities evaluation form. From our preliminary review of it, we can say we do not believe it satisfies the intent of the bill or employer needs, with its focus on restrictions rather than functional abilities. It is crucial that we are able to understand and know what exactly the worker can do in order to fit him into the workplace and protect the worker from other injuries.
The requirement that workers must cooperate in the health care measures that the board considers appropriate. This new requirement is again an important acknowledgment that the workers' compensation system is not simply intended to pay benefits but also requires the worker to participate in achieving the objective of reaching maximum medical recovery.
A new requirement for workers to cooperate in the return-to-work process. This obligation requiring workers to cooperate in the return-to-work process introduces long-needed balance to the system in achieving return-to-work objectives that can only be achieved through the cooperation of all parties. The newly introduced provisions regarding the concept of worker responsibilities, with associated penalties for non-compliance, are also vital to the return-to-work process. These provisions, however, must be amended to ensure that definition problems will not prevent the true goal of return to work from being achieved.
The bill also proposes new directions in the following areas which, although they may have merit and are positive initiatives necessary for restoring the system to its original intent as a workplace insurance scheme, are ambiguous and require clarification, along with more specific direction for the board's implementation:
Labour market re-entry. Much clarification, in our view, is needed in the area of the concept of labour market re-entry and the establishment of a labour market re-entry plan in particular.
The section as written, and without clear parameters on time frames for completion of a plan and objectives of the plan, will perpetuate the problems which exist currently with vocational rehabilitation plans in their seeming endlessness. Also of concern is the possibility that such plans would be used as a fallback during bad economic conditions.
We believe the provisions are intended to address those cases where an injured worker could not return to the accident employer. However, we believe the intent of the section should be to provide a worker with the tools to make them labour-market-ready, and it should not be the objective of these provisions to secure the employment for the worker. The objective of labour market readiness, not employment, must be clearly articulated in the statute. We strongly recommend that those provisions be amended to clearly articulate the stated objective of market readiness only, and not employment.
New loss-of-earnings provisions. From our reading of these provisions, it would appear that the concept of payments based on level of disability is being replaced by that of simple income loss. The concept poses concerns for us in the lack of clarity of the provisions, which in our view leave too much discretion to the board's administration and policymakers. We are also concerned that this may result in overcompensation, rather than appropriate compensation, by utilizing the loss-of-earnings notion as the determining factor for benefits.
Loss of retirement income provisions. Although amended from the current legislation, it continues to be our view that this provision may contribute to overcompensation by providing a benefit which may not have existed prior to the accident. Although such benefits would be appropriate in cases where a pension plan formed part of the employment benefits, they would be inappropriately extended where no such benefits existed prior to the accident. Furthermore, Bill 99 appears to go further, in overcompensating workers by expanding on the group which will receive this benefit by setting out, as its new criterion for receipt, a loss-of-earnings period of 12 continuous months only. This period is much too short a time frame, the result of which may be a greatly expanded group of recipients.
New indexation provisions. We agree that this provision is an important step in efforts to reduce, with the view of eliminating, the unfunded liability. We maintain, however, that this provision must go further in reducing costs by limiting even further the number of exceptions to the new indexation provisions. The exceptions noted are too broad and should only include those with 100% permanent impairment and survivors.
New revenue reporting obligations for employers. Aimed at reducing and eliminating revenue leakage, these provisions may well have merit in helping to reduce revenue leakage at the board and in attaining financial stability for the system. We wish, however, to caution against what has happened in the past, where board policies exist for collections of unpaid assessments but are not followed by board personnel, with the unfortunate result of bankrupting employers without having given them appropriate notice prior to seizing assets. Again, this is an area where we are primarily concerned with the broad powers being given to the board for implementing and administering these provisions.
New provisions regarding decisions of the board and appeals. We welcome specifically the new time frames within which board decisions may be appealed. These steps are important in achieving a more expedient administration of the workers' compensation system in that reviews will not be drawn out due to extensive information-gathering spanning months or years. However, less discretion should be given to the board to consider exceptions to the new time frames and allow for late appeals. It is our concern that the exceptions rule will become the operating policy for appeals. The less discretion given to the board to allow for exceptions, the less likely that exceptions become the rule.
The Chair: I'm sorry to interrupt, but I must caution you that you have about one minute left to wrap up.
Ms Fiorentino: Appeals tribunal: The new jurisdictional limits of the appeals tribunal, particularly in the area of policy development, are important in moving towards a system which ensures that the board is the sole policy arm for legislative administration of the workers' compensation system and that the appeals tribunal is bound by board policy. It continues to be our view that the appeals tribunal should not set board policy. It is also our strongly held view that there should not exist or be allowed to exist a void in policy development at the board. The bill does not go far enough in limiting the tribunal's power to develop policy in its provision allowing it to render decisions in the absence of board policy.
The Legislature must enshrine into law not only the limited scope of power for the tribunal as an auditing body of board policy, but also enshrine the obligations of the board to ensure that when a vacuum in policy exists, it be corrected at once with the development of a policy.
The Chair: Excuse me. I'm going to interrupt again. It was my error; you do have time to continue, so please do so. I apologize for upsetting you.
Mr Howcroft: I was checking my watch.
Ms Fiorentino: The bill requires some fine-tuning to ensure that a process is spelled out which will ensure that in the absence of a policy, the board will be required to promptly respond to a void, or clarification of policy, as identified by the appeals tribunal prior to a decision being rendered. The tribunal must continue to be bound by the final decision or confirmation the board provides. A policy advisory committee to the board of directors, within the board, is a possible mechanism for reviewing policy.
The continuation of the office of the employer adviser and the office of the worker adviser, with amended mandates to limit services to smaller employers and the non-unionized injured workers population, will go a long way to targeting the most needy groups for service delivery and make more effective use of resources. Administrative savings in the system should be achieved by reduced budgets for both offices, with parity in the budget allocations for the two. The employer community has been urging the OEA to do more with less, and they are currently operating within such reduced budgeting constraints. We urge this government to do its part to ensure that the OWA does the same. Again, parity in the treatment of the two offices is crucial.
We wish to make an additional comment, not directly relating to Bill 99 but specifically on the issue of the elimination of the Occupational Disease Panel. The alliance has been a long-standing advocate of health and safety and research in accident prevention. We do not, however, believe in or support a separate bureaucracy for carrying out this function. Resources should be more properly spent on research, not on supporting a bureaucracy. We therefore support the elimination of this agency and the assignment of this function to the WCB.
At this point, we wish to thank the committee for allowing us the opportunity to provide an overview of the changes introduced to Bill 99. We will be providing a complete and detailed text of our recommendations to the committee for your review within the next few days.
The Chair: Thank you. I apologize for that error. There is plenty of time for questioning.
The Chair: Excuse me. Every witness who comes before this committee, whether in support of the bill or against the bill, is entitled to our courtesy and to a fair hearing. That will be insisted upon in this committee.
We'll move now to the NDP caucus.
Mr Christopherson: I'm quite overwhelmed; I don't know where to begin.
Ms Fiorentino: Wait till you get our clause-by-clause full text.
Mr Christopherson: I'm not so much overwhelmed by the complexity but rather just the approach, the perspective. By the time you were done, if I didn't know anything about this, I would be convinced that every injured worker was out to rip off the system, deliberately got injured, that they caused the problem themselves, that somehow they did something wrong. That's the way this feels.
Ms Fiorentino: I'm terribly sorry if that's how you feel. That's not our intent. We're looking for a fair system for both employers and injured workers.
Mr Christopherson: I respect that that's what you feel. I do. I just have difficulty with the idea that there's something fair about denying the pension money that's put forward in here: taking away 50% of the money that's given for pension rights, taking away 5% of the income of workers. But it's okay to give employers a 5% cut. They're taking $6 billion out of injured workers' pockets and giving it to employers. The unfunded liability is owed by employers, not injured workers, not taxpayers. I sincerely say to you that I find it difficult that the average person would think this is fair. What is fair about that from an injured worker's point of view?
Ms Fiorentino: What is fair is that if we don't take these steps and measures today, there will be no compensation systems and injured workers will have no income.
The Chair: Order, please. We have to be able to continue these hearings. We're behind. I ask your indulgence in allowing questions and answers to continue.
Mr Maves: Your comment on the pension benefit is simply that there are a lot of injured workers who end up with a pension benefit who never had a pension plan before.
Mr Howcroft: You're talking about the retirement pension?
Mr Maves: Yes.
Mr Howcroft: That's our view, that if they didn't have a retirement pension prior to an accident, the workers' compensation system shouldn't provide a pension benefit after the accident.
Mr Maves: Also, you talked about revenue leakage. One of the problems that seems to be with employers in the system is employers not engaging in the system when they even begin their business. Is there a better way that we can make them aware of their responsibilities under the act immediately?
Mr Howcroft: I'm sorry, I couldn't quite hear the question. I sense some disagreement in the room. I couldn't quite make out what you were saying.
Mr Maves: Right now, a lot of employers, when they start, especially small businesses, are unaware of some of their obligations under WCB, occupational health and safety and so on and so forth. Is there a better way we can make them aware of it, for instance, maybe make them understand that obligation when they register a business or anything like that?
Mr Howcroft: I think education has a lot to do with it. We feel there is perhaps a more active role the Ministry of Consumer and Commercial Relations can take in making sure that people starting a business are aware of what their obligations are, workers' compensation being one; employment standards and occ health and safety being other areas. I think that will go a long way in helping improve our systems in Ontario if employers and employers-to-be are aware of what they have to be advised in hiring and dealing with employees.
Mr Patten: I must say that my reaction is somewhat similar to my colleague's who started off with the first question. Here's what troubles me: The system can't work unless there's a balance, with fairness for people being compensated, helped, assisted and going back to work. Every group has said that, but I don't see anything in here that says anything about what your sector would offer.
Believe me, I have great respect for your sector in terms of business development and part of the future of our nation. But what I'm receiving from you is that it's all one-sided. Somehow there's almost a negative view of workers, that they're taking advantage of the system and you've got to push and push them. What the hell would happen to someone if they were injured and had no pension? What would they live on? They couldn't live on anything. I find that difficult.
If you don't have happy workers and you don't have healthy workers and you don't play a major role in that, what do you have? You don't have a business. There's an inextricable relationship there that I don't find is --
Mr Howcroft: First of all, I'd like to say that we are certainly not taking any attack at employees or workers in the province of Ontario. We've had a long-standing involvement in workers' compensation. In fact, we were involved in the historic compromise back in 1914-15. Our views haven't changed on workers' compensation. We feel there should be a fair and balanced system.
The view we're putting forward in our comments this afternoon and the more detailed brief that will follow supports the creation and maintenance of a fair workers' compensation system, based on insurance principles that are fair to both workers and employers, yet also take into account the financial viability of the workers' compensation system that's extremely important to all.
Mr Patten: It's actually quite viable as it is. There's some dispute, believe me, as to the viability of the fund itself.
Mr Howcroft: I'm sorry, I can't hear you again.
The Chair: Our time has expired. Thank you very much. We appreciate your taking the time to come before us this afternoon.
The Chair: Please, this committee is open to people who are in support of the bill and those who are opposed to the bill.
The Chair: If you insist on speaking, the committee will recess and we will not be able to continue.
The Chair: The committee stands recessed for 10 minutes.
The committee recessed from 1730 to 1740.
PROVINCIAL FEDERATION OF ONTARIO FIRE FIGHTERS
The Chair: I call the standing committee on resources development to order. We welcome representatives from the Provincial Federation of Ontario Fire Fighters.
Mr Ron Christie: My name is Ron Christie. I'm the chair of the workers' compensation committee for the Provincial Federation of Ontario Fire Fighters. Richard McCullough is from the Ontario Professional Fire Fighters Association. Tyler Briley is a firefighter from the city of Scarborough. Jim Simmons is the executive vice-president of the Provincial Federation of Ontario Fire Fighters. What I would like to do is put a face on the injured workers, specifically firefighters, for this committee. I would ask Tyler to speak to you about his injuries.
Mr Tyler Briley: Thanks very much for giving me this opportunity to speak with you today. This is basically my story and what I have been through. I wanted to relate to this committee my experiences as an injured worker and how this injured worker was viewed and treated by the employer and the Workers' Compensation Board.
My story started nearly five years ago, August 19, 1992. I was involved in a ritual that started every shift of every day I was employed with the city of Scarborough. A thorough check of equipment was the order of the day. It was imperative not only for my safety but the safety of the public that I proudly served. I am, or was, a firefighter. This day started as every other in my previous 11 years on the job: Check the truck, put on your air tank and make sure everything is in order. Any of the equipment could be the difference between life and death, not only mine but the public's.
This day started as every other, but initiated a chain reaction of events that has changed my life and those of my family. While putting on the air tank assigned to me, the strap caught in the latch on the compartment door as I threw it over my head. It stopped in midair and jarred my right shoulder. This was such a fluke. In my previous 10 years on the rescue truck, I had thrown this over my head hundreds of times at the hall and in the anxious moments at a call, never having a problem.
The resulting injury didn't seem that serious. I was sent home and told to rest, that it was probably strained ligaments. I continued off for six weeks while I was being treated. The pain continued and seemed to be getting worse. Physio was prescribed and didn't seem to help.
Before I knew it, I had been off about three months. I was losing faith in the doctor and sought a second opinion. I was referred to a specialist at St Michael's Hospital, who again referred me for therapy. The months were slipping by and therapy wasn't helping. I was scheduled for surgery on March 8, 1993.
The pain from the surgery was worse than I could have ever imagined. It was two months before I could position myself to lay down in my own bed. The pain just never let up. It was three months after surgery when I sat up in bed, with the help of my wife. I started to cry like a baby. I just couldn't stand the pain any more. I was at the end of my rope. But things did eventually get better. My shoulder was starting to come around. After nearly a year of rehabilitation I managed to return to light duties. I was thrilled to be involved in any capacity in the job I loved.
It was January 1994. The day finally arrived when I was strong enough to return to the trucks, the front-line action and the camaraderie of the fire house. No one really knew what I had been through, with the exception of my family, and I wanted it that way. I would not have wished what I went through on any person, on my worst enemy.
As the months wore on, I had some discomfort but kept it to myself. I was scheduled for a checkup with the surgeon. This was what I thought would be the last time I would have to sit for hours in his waiting room and relive my agony through the people sitting around me in various stages of recovery. Finally, I was seen by the doctor, who had become all too familiar. I mentioned a numbness I had experienced in my hand during certain positioning and use. His remark of "Oh, shit" set off alarm bells of a different nature. It was established they had crushed the ulnar nerve in my elbow and it would have to be moved. I was told this was not uncommon after the previous shoulder operation.
Once again I found myself lying on a stretcher being wheeled into surgery. This operation was fairly superficial when compared to what I had been through. I was only off work for about a month after the eight-inch incision in my elbow had healed.
I continued on a normal course of duty until April 4, 1995. This was the day I wrote my captain's exam. While returning from writing the exam, we were rerouted to a chemical fire that had all the makings of a potential disaster. This fire being petroleum-based, we were forced to use foam to quell this inferno that had already caused millions of dollars in damage.
In my efforts that day, I had to move a number of containers of this foam. They weigh about 50 pounds each. After the fire my shoulder was sore, but I didn't book off. I continued to work, hoping it had been only strained. After two weeks I was forced off with the pain and had to seek medical attention. I consulted with the doctor and therapy was ordered. The results of the therapy were limited and I sought a second opinion. The result of this was my return once again to surgery. The date was set for July 1995.
As before, the resulting recovery was excruciating. Once again, pain was my constant companion. I was the one injured, but my whole family suffered along with me. My young kids were again exposed to their father's cries in the night.
I made my way through the sessions of therapy. They were times of the day I came to dread. I eventually returned to duty in early January 1996. Everything seemed okay and I managed to complete the tasks at hand. The summer months rolled around and the nagging pain in my shoulder seemed to be getting worse. As usual, I hoped I would wake up and it would be gone and this was all a bad dream. This simply wasn't going to happen. The pain continued to get worse and finally I was forced off work. Up to this date I had been covered under the Workers' Compensation Board for the two surgeries on my shoulder.
I didn't apply for benefits right away, as I wanted to see the specialist to confirm that this was all related and to file for the benefits. On December 13, I filled out the appropriate paperwork and waited for a response. The last week of March arrived and I received the denial from the board.
This placed me in an awkward position. With the time I had already been off converted to sick time, my sick bank was nearly exhausted. I was forced on to long-term disability. At the age of 42, I have been cast upon the scrap heap of society. I may be feeling sorry for myself, so bear with me.
The impact of this injury on my life has been huge. I can testify I am now a miserable sod and I question my wife's sanity when she stays by me and accepts my outbursts and mood swings, the guilt I endure as a result of missed events -- the recitals, the father-and-son hockey games, and my inability to throw the ball to my kids. One of my pastimes and true loves was coaching the kids. I know I had a special gift. I could communicate with the kids and build their self-confidence and their self-esteem. I know I have had a big impact on many of their young lives and I'm sorry I can't be there to help them as I once was -- more guilt.
The only assistance I have received to help me sort out this mess is from the pension and compensation officer who is provided by the Scarborough Professional Fire Fighters Association. This dedicated professional has stood by me from the word go and to him I owe a great deal, not only for his knowledge and guidance but for the moral support he has provided me. About 16 years ago, when I was as green as the new leaves on the trees, a firefighter told me not to think I was anything special because I was a firefighter. I can still hear his words of advice, "You're nothing but a number around here and don't forget it." I must say I never forgot those words of wisdom that day, though I never really believed them. That firefighter is the officer now assisting me with my claim.
Now, after 16 years as a firefighter and everything I've been through, from the images of dead people we didn't save, the elderly whose time had come, the mangled forms we freed from unimaginable vehicle accidents, the stress of chemical spills and fires, the results of domestic violence, the suicides, the murders and my personal brushes with death, am I wrong in my expectations to have the chief of the department go to bat for me, to get involved on behalf of one of his men? Apparently in Scarborough it is. Instead of supporting their employees, the Scarborough Fire Department deems it appropriate to send their senior officers to WCB appeals and tribunals, not to support the injured worker but to fabricate and falsify information to save the city money.
These ingredients of deceit and collusion complete this script of events that have changed my future. The only contact from the employer was a letter advising me of a job opening in the communications division. I was not able to accept this position at this time. After consulting with my doctor I was advised, due to the narcotic pain medication I was taking, that this job of high stress and responsibility was not an option. Secondary to the decision is the fact this job may not exist in a year or so due to the impending amalgamation.
This claim represents the bottom line -- money. It's not about loyalty and integrity or who's right and who's wrong. It's about money. The only contact from the employer was to cover their asses and obligations under the existing Workers' Compensation Act. Their actions were self-serving and should not be considered in any way acts of compassion on my behalf. I am now damaged goods and they could care less. This is unjustified treatment for an employee who would have laid down his life for the people he served.
This treatment is under the current Workers' Compensation Act. I ask you, if a dedicated worker is currently treated like this, how will they be treated when the new rules are implemented, when there is no third party involved? When you hand over more authority to the employer, do you think they will ever rule in favour of the injured worker and against themselves? If you do, you must also believe democracy will be the order of the day in Hong Kong. Let's not kid ourselves. I, as an injured worker, have been treated like dirt by the employer and things will be worse for those who are unfortunate enough to have to follow in my footsteps.
In closing, I would like to note I am a supporter of this government. I followed the election with interest as I was selected by the Toronto Star to be featured in their weekly assessment of the election as an undecided voter. My vote went to the Progressive Conservatives and their Common Sense Revolution. It was clear that we, the province of Ontario, could not continue in the direction we were heading.
I did not plan to become an injured worker, but this is what I've been dealt. This is who I am. I have every confidence I will win my appeal and be reinstated as an employee of the city of Scarborough. I am very fortunate to be represented by a group of dedicated professionals and support staff of the Scarborough Professional Fire Fighters Association, Local 626, but my thoughts turn to the employees of small companies and mom and pop operations. Who will look out for them?
I believe changes are necessary. In my case, the adjudicator wanted to overrule the decision of the board and approve the recurrence after reviewing my file, but this was beyond his authority. The person most familiar with the case is denied the authority to overrule those who may not have a grasp of the complete file and case history.
The current changes should be reconsidered. As they stand, they are ingredients in a recipe of injustice and an uncaring assault on injured workers that in no way assists them on the road to recovery and re-employment.
Mr Christie: I hope you have a brief in front of you. I will limit my comments to a couple of the areas in the brief that are of concern to our association and the firefighters of the province.
The bill eliminates section 95 of the act, and with it the Occupational Disease Panel. This panel was established in 1985 due to the obscenity of occupational diseases in the province. The ODP has recognized more occupational diseases in five years than the board did in 25 years. Since the mid 1960s, firefighters in this province have been attempting to gain coverage and acceptance for occupational diseases that are unique to firefighters. We are exposed daily to the products of combustion, chemical spills and other unknown hazards. These insidious hazards result in our members contracting various cancers and heart disease.
In 1988, we approached the panel with a request to study these diseases, after years of being turned down by the board. The panel accepted the challenge and identified brain and lymph cancers as occupational diseases, which were contained in IDSP report 13, released in September 1994. The firefighters of this province were ecstatic. Finally, some of the health hazards of our proud profession were being recognized. Sadly, not the case. The report sits at the board. They have not acted on it for three years.
This report has been hailed worldwide and is used in a number of jurisdictions to support firefighters who are suffering from the identified illnesses. The scientific community applauded it, the employer community did not oppose its acceptance, yet the board does nothing. I shouldn't say that. They do something. A firefighter in the city of Toronto has lymphoma. He filed a claim under workers' compensation and used the ODP report as substantive evidence in his claim. The board, in its wisdom, gave the claim to a toxicologist, whatever that means. We are unable to determine what a toxicologist is or does. He said the report of the ODP was nonsense. He said it is scientifically incorrect; therefore, this claim has no merit. Guess what happened? The claim was denied. It sits in appeal.
You propose to hand over the occupational disease studies to the board and the board will look after it. You expect us to believe that the board will monitor development and generally accepted announcements in health sciences and related disciplines and that these will be reflected in benefits, services, programs and policies that are consistent with the purposes of the act. Hogwash.
What does "generally accepted" mean? Will cost be a factor? Restrictions are placed on WCAT to look only at board policy, effectively eliminating that area of occupational disease consideration. There is no direction or role for the board to make public its reasons for decisions on occupational disease claims. The ODP is not being integrated into the board, it is being eliminated.
This is a knee-jerk reaction to advances in the recognition of work-related illness done by the panel in the last 10 years. Firefighters and workers of this province will pay the ultimate price for this. If you are off work, you're either sick or on workers' compensation benefits. If you can't get workers' compensation, you're sick. If you don't have a sick bank, you're on public assistance. We're going back 40 years in this area and we ask that you rethink this ill-advised section and let the ODP continue with its valuable work.
Mental stress is going to be eliminated under Bill 99. This is amid growing problems in the workplace of sexual and racial harassment. From our perspective, we have concerns for our firefighters who suffer from the cumulative effects of what is known as critical incident stress. It's very common in the emergency services, not only us but in ambulance and police. It's an acute reaction to the horrendous situations we daily encounter. There are times when the results of these encounters do not surface for long periods, but when they do, the firefighter who cannot work will not receive compensation under your proposed amendments. It's as if injuries to the psyche are not compensable, but if he can't work because of these, where is he to turn for benefits? Why would you restrict them further?
Section 21(1) requires a worker to file a claim as soon as possible after an injury. The present system is being abused by the corporations, cities and towns around the province. I have received countless calls from firefighters who discover their employer did not file the claim or tried to coerce them into not filing them.
There is a firefighter in Nepean who suffered a heart attack while on duty. He was taken by ambulance from the station. Thirty days later, while he's off wondering whether he's going to live or die and wondering whether he's going to have any money to feed his family, he receives a note from the ambulance people -- they want to be paid. He assumed it would be paid by the Workers' Compensation Board and called the board. They had never heard of him because the city of Nepean does not recognize workers' compensation claims. It's not the compensation board, it's the city of Nepean and the person who handles those claims. They did not file a claim and all the problems went along with that.
The Chair: If you could just wrap up, please.
Mr Christie: Okay. My final comment would be that firefighters are dismayed by the restrictions placed on the submission time and the lack of substantive public hearings on Bill 99. We are of the opinion that nothing will come of our presentation today and that the Conservative members of this committee are not listening.
The Chair: Thank you very much. That concludes the presentation time.
ONTARIO PSYCHOLOGICAL ASSOCIATION
The Chair: I'd like to call upon the members of the Ontario Psychological Association, please. Thank you very much for coming this afternoon.
Dr Warren Nielson: My name is Dr Warren Nielson. I'm a psychologist, a past president of the Ontario Psychological Association and director of the rheumatology day care program at London Health Sciences Centre. With me is Dr Ruth Berman, our executive director and a rehabilitation psychologist. Thank you for allowing us to present at these hearings.
There are many aspects of this legislation with which we agree; in particular, the recognition that prevention can play a key role in both reducing injuries and containing costs. However, in the brief amount of time that's available, we would like to simply highlight aspects of the legislation that remain a concern to us and refer you to our written submission for a more detailed discussion.
Dr Ruth Berman: I just would like to add that we submitted a copy of our brief to the committee. I believe that was sent, probably about two weeks ago, and our comments today are based on that brief and were prepared in advance of material we just recently received from the WCB in connection with the functional abilities evaluation, the prescribed form, and as well the intended plan for how chronic pain will be dealt with.
Unfortunately, we are not elaborating on those today because we just received that material. We may make some comments after we make our presentation, but we would like to provide some supplementary written commentary following our presentation today to the committee and as well to the board on this new material.
The Chair: The clerk will have shared all of that with us. If you wish, after this presentation time, to submit something further in writing, that's perfectly welcome as well.
Dr Berman: Thank you.
Dr Nielson: The first issue pertains to the designation of health care professionals authorized to determine impairments under Bill 99. One type of impairment defined in section 2 is "psychological damage arising from the abnormality or loss." Yet section 47 indicates that only physicians may provide assessments of impairment. We find it rather strange that physicians alone, but not psychologists, should be authorized to determine psychological impairments of injured workers. We would hope that such an omission was simply an oversight.
Psychologists are authorized under the Regulated Health Professions Act to diagnose psychological disorders and dysfunctions, and their ability to perform this controlled act has been recognized in many other statutes, for example, under auto insurance law. In addition to being consistent with our training, skills and scope of practice, we think it would be most appropriate, and in the best interests of both injured workers and employers, to include us as assessors of impairment under Bill 99, and thus are recommending an amendment to section 47 to allow for such a provision.
Next, I'd like to turn to the issue of chronic pain. We believe this legislation is fundamentally flawed with respect to chronic pain. The approach taken to chronic pain is based on two principal premises: first, that there's no physical basis for pain which persists beyond the "usual healing time," and secondly, that because of psychological and social influences on pain, the relation to the original injury becomes insignificant.
Both of these premises are patently false. I do not know where those who drafted this legislation obtained their expert advice, but these statements are not consistent with existing scientific knowledge, either medical nor psychological, concerning chronic pain. The concept of "usual healing time" is an anachronism. Although the initial injury may heal, we now know that permanent changes can occur in the spinal cord and other central nervous system structures that will cause pain to persist and even spread to other areas of the body. These are real, physiological changes. I refer you to the review paper by Coderre and colleagues cited in our brief.
It is true that psychological and social factors influence a person's experience of pain. For example, if a child is highly anxious while receiving an injection, he or she will experience more pain than would be the case if he or she were relaxed. But while psychological factors play an important role, they do not diminish the significance of what is occurring physiologically.
Unlike other medical conditions, pain is not something that can be seen; it is an internal experience. This fact is at the root of the many myths surrounding pain and of the suspicion and distrust often directed towards those with chronic pain. These prejudices and misunderstandings are about to be embodied in this statute and will become law in Ontario.
Bill 99 states that after a prescribed period of time, about 13 months, all compensation and health care benefits provided to injured workers who have chronic pain will be terminated. It is important to recognize that this change will disproportionately harm those in lower socioeconomic groups. Why? Because those who have lower-paying, physically demanding jobs are (a) most at risk of developing chronic pain, and (b) the least likely to return to their jobs.
This statement is not simply our opinion, but rather it is based on the scientific literature, some examples of which are provided in our brief. These workers are also the most difficult to retrain for alternative employment, particularly during a time of downsizing and a shift towards a more technologically driven economy. Under Bill 99, most of them will end up on welfare because that's the only option that will remain available to them.
We believe it is the responsibility of government to protect vulnerable members of our society, not to increase their vulnerability. Moreover, this migration from workers' compensation to welfare will shift the economic burden caused by work-related injuries from employers to taxpayers.
The elimination of compensation for chronic occupational stress is similarly problematic. Although Bill 99 provides benefits for those who develop psychological problems following a traumatic workplace event, such benefits will be unavailable to those who develop problems as a result of cumulative stress. In situations where workers have developed psychological disorders as a result of cumulative occupational stress, they should be treated the same way as those who develop medical conditions. They should meet established diagnostic criteria and there should be a clear connection to the workplace. Personnel decisions such as layoff, job demotion, transfers and interpersonal tensions should not qualify. Specific criteria are again outlined in our brief.
To treat those with chronic pain and chronic stress differently from those with other medical conditions is discriminatory and this legislation should be amended to eliminate that discrimination.
Dr Berman: A final concern pertains to work re-entry and vocational rehabilitation. Under Bill 99 it appears that the employer is to guide the work re-entry process. This arrangement appears to place the employer in a potential conflict of interest, and I think that was very well illustrated by the scenario that our previous speaker presented. In an ideal world where the employer is satisfied with an employee's work and has no conflicting motivations, this would not be a problem. However, employment relationships are often less straightforward and employers may not always be fully committed to the work re-entry process. This again places the worker in an inappropriately vulnerable position. Although we agree that both the employer and the worker must co-operate in the work re-entry process, the inherent conflict of interest embodied in an employer-driven re-entry system makes that approach untenable. We believe that a neutral third party such as the WCB should continue to play a directive role in this process in order to ensure that the rights of both parties are protected.
We also feel that the sections of Bill 99 pertaining to the employer's obligation to re-employ are inadequate. If a worker is terminated within six months of re-entry, the employer must "rebut the presumption" that they have not fulfilled their obligation or face a penalty, but after that relatively brief six-month period, no sanctions or penalties can be levied. Under this arrangement, a worker who struggles for six months to maintain his or her job despite physical problems could be terminated. Although a labour market re-entry program may be provided, what happens if the person does not get better? If they happen to have chronic pain, they will not have access to any WCB benefits and their chances of obtaining alternative employment will be near zero.
In summary, the Ontario Psychological Association supports the government's efforts to revise the workers' compensation system in a manner that will increase efficiency and accountability. We strongly support the increased focus on prevention and believe that, in the final analysis, prevention can hold the key to cost containment, but new legislation should also provide appropriate access to health care and adequate compensation benefits. For those unfortunate enough to develop chronic pain or chronic stress conditions, this legislation will be devastating. We urge the government to amend Bill 99 in order that it will not discriminate against these vulnerable members of our society.
We also recommend that psychologists and other regulated heath professionals who are authorized in law to diagnose under the RHPA be included in section 47 of Bill 99. This would allow all legally recognized health care professionals who are specifically trained to conduct diagnostic assessments of impairment to provide such services to injured workers.
On behalf of our members, we would like to thank the committee for allowing us time to present this afternoon and we would be pleased to answer any questions you may have.
The Chair: Thank you very much. That allows us about three minutes' questioning per caucus, and we'll begin with the PC caucus
Mr Maves: You asked a question about where the expert advice came from with regard to chronic pain, and I think that in Nova Scotia they have a similar section in their WCB legislation where they don't allow chronic pain. Theirs was based on the work of Dr T.J. Murray from Dalhousie University. I just wondered if you were at all familiar with Dr Murray's work.
Dr Nielson: I'm vaguely familiar with it. I don't think he is a central figure in terms of the neurophysiological basis of pain, and I guess our primary objection is that there are often health care professionals, including physicians, who aren't aware of the neurophysiological research that specifically addresses the underlying mechanisms in chronic pain. Probably the average physician and certainly the average psychologist wouldn't be aware of that. So it's a relatively narrow group of people who do research in that area and are probably appropriate to provide that kind of information to the government and other bodies that are investigating.
Mr Maves: So most of that research that you're referring to is provided by psychologists?
Dr Nielson: No. It's provided by physicians who specialize in pain, the neurophysiology of pain, and neurophysiologists, PhD non-physicians.
Mr Maves: There's another thing I wanted to make a quick comment on, Chair. Bear with me.
In the return-to-work process, you mentioned that you thought the WCB should stay involved in the process, and in sections 46 and 47 they are very much still in the process. I wonder why you came to the conclusion that they wouldn't be, because sections 46 and 47 clearly state that if there is any kind of dispute or disagreement with worker and employer, the WCB indeed steps in.
Dr Berman: My background is in vocational rehabilitation. When I am in practice, much of what I do is evaluations to assist case workers in the WCB in making some sort of decisions around rehabilitation planning. My concern stems from the fact that under the existing system it has occurred on occasions too numerous to mention that many of the people I have seen have gone through a so-called work re-entry program where an attempt was made by an employer to introduce accommodations and modifications in the workplace, and very often they are back doing exactly the same job they did, they may be there for a few months and then they are laid off for some other excuse that seems to be raised by the employer.
Many of them have told me of their experiences of feeling very betrayed by employers, just like the firefighter you heard presenting before. Many of them were loyal, reliable workers for many, many years and were subsequently shocked by the way the employer responded to them in a time of need and a time where their obligation to introduce modified work was really unsatisfactory, and they were right back where they started from, which is why they ended up then going through a rehabilitation process to look at alternative employment.
Mr Maves: Sections 46 and 47 provide for the board to play a mediation role in a return to work, so that's not so much your concern as what happens once they go back to work.
Dr Berman: Yes.
Mr Patten: Thank you very much for the presentation. I found it enlightening. We've only got a couple of minutes. First of all, I really look forward to your comments on the draft form that has been presented and how you see that would be received, dealt with and what value it would have, or any alternatives you have.
On the whole question of chronic pain and chronic stress, we had a presenter from the legal resource centre, David Baker, executive director. I don't know if you're familiar with him, but his deputation here suggested that there is a strong basis for a court challenge to that, based on Supreme Court rulings heretofore. But it seems to me that if pain persists beyond the usual healing time, then we just wish it away. I would appreciate it if you have further references to the establishment of chronic pain, because it appears to me that if there is still some question as to the medical-scientific legitimacy of that, then that too may be lumped into court challenge. I think there are going to be legal hassles with this legislation in a whole variety of areas. Is that your impression as well?
Dr Berman: Yes. In fact, during the meeting we had with some of the legal people at the ministry, we introduced that notion. If it's not compensable, does that mean this could end up in lawsuits in the courts? It's something to think about.
Mr Patten: It struck me, listening to some of the presenters today, that we've weakened what essentially was a no-fault -- that is not to say there are not things that can be done to improve the way in which it's administered, but we've weakened the no-fault side of things to the point where it's going to lead to further litigation left, right and centre and that will, as you say, pass this on to other areas outside of the WCB, which means it's going to save employers: less benefits for injured workers, and who's going to pay for that? It's going to be the taxpayer, as you say, in other forms, through welfare and what have you in that particular case, so I agree with you on that.
Dr Berman: If you would like, I could make two comments about the form. That information was received at our offices just a few days ago. We're studying the form. Two things about it stand out.
First, it's called a "functional abilities" evaluation, and yet the only thing it talks about is physical capacities. Those who work in the field of rehabilitation, particularly where we're looking at the ability to work, recognize that work capacity is much more than physical capacity and that there is not a direct relationship between physical capacity and functional capacity. There is no recognition at all of the emotional and cognitive factors that may influence a person's ability to work. That's one problem.
The other problem is that this form is to be filled out by health care providers. You are asking injured workers to give consent for this information to be released prior to the information perhaps even being obtained. As health care providers, we have an obligation legally, morally, ethically to obtain informed consent by having somebody consent to the release of health care information before knowing what information is even being released. That puts us in a very, very difficult position vis-à-vis our own standards of practice. I am sure that if other health care providers are presenting, you will similarly hear those kinds of statement being made.
Mr Christopherson: I think we're all quite taken by your last comment in terms of informed consent. That's an excellent point.
Dr Berman: What you are doing then is you are waiving your right to informed consent by agreeing to provide information before you even know. So it's not informed consent; you're giving up your right to consent.
Mr Christopherson: Right. I certainly have raised the point, and my colleagues have too, that the whole concept of giving up your right to the privacy of your medical information is something that jars a lot of people, and rightly so, and yet all we hear is that the employer needs this information and there doesn't seem to be any consideration for what ordinary people are being expected to give up.
Overall, your submission has been extremely helpful, and I expect, I can assure you, that quotes and examples you've used will be placed across the province and used very effectively -- as effectively as I can.
You state on page 2 in the second-to-last paragraph: "In situations where workers have developed psychological disorders as a result of cumulative occupational stress, they should be treated the same way as those who develop medical conditions." I'm speaking, of course, to the fact that chronic occupational stress is being eliminated entirely from a compensable claim.
We heard a submission a couple before yours -- I don't know if you were here -- from the Alliance of Manufacturers and Exporters Canada. They said, speaking to the exclusion: "This major amendment is an important affirmation of the workers' compensation system's intent as an income-replacement scheme for injuries or diseases directly and solely work-related. It is also a clear acknowledgment of the complexity and multifaceted nature of mental stress, and the" -- and I think this is the critical point -- "inability to clearly link such a condition solely to the workplace."
I notice you state very clearly that there needs to be the ability to do this. It ought to be only for things that are directly related. Employers are coming in time after time, saying, "The government is right to exclude chronic occupational stress because there is no scientific-medical ability to link stress in the workplace to time off work." You say something different. Could you respond to the position put forward by the Alliance of Manufacturers and Exporters, please, in terms of the inability to this?
Dr Berman: We haven't seen their brief but we heard their presentation. The issue of chronic occupational stress I think is something that has preoccupied the board, legislators and health care providers for some time. There was one period of time a number of years ago -- I can't remember the year -- where there was a series of public hearings in which some consideration, I believe, was being given to the possibility of treating chronic occupational stress as a compensable disorder. There were presentations made by our association and others, and I am not sure where -- somewhere in the bowels of Queens' Park -- there must be at least three submissions that we have made on chronic occupational stress.
Practitioners in the mental health field are trained in the diagnosis of mental and behavioral disorders. There are classification systems for arriving at a diagnosis. There are criteria that have to be met. Saying, "My job makes me nervous," is not a disorder. All of us have to deal with a certain amount of anxiety that goes along with being a worker. Workplaces are not free of stress. That's not the same thing as having a recognizable psychological disorder. Qualified diagnosticians -- and in this case the suggestion is that it be either psychiatrists or psychologists -- through their skills and training should be able to make some determination as to whether or not this disorder bears any relationship to the workplace setting or stems from some other situation.
The other thing is that people --
The Chair: I'm sorry, our time is up. Could you just finish, please?
Dr Berman: Things don't happen in a vacuum either.
Mr Christopherson: So you think it can be directly linked?
Dr Berman: Yes, I think it can be directly linked.
Mr Christopherson: It can be done.
Dr Berman: If it's done properly.
The Chair: Thank you very much. On behalf of the members of the committee, I thank you for taking the time to come this afternoon. We appreciate your advice.
ONTARIO NETWORK OF INJURED WORKERS GROUPS
The Chair: I would like to now call on representatives from the Ontario Network of Injured Workers Groups. Welcome.
Mr Karl Crevar: My name is Karl Crevar. I am the president of the Ontario Network of Injured Workers Groups. With me are Mr Steve Mantis, the secretary-treasurer of the Ontario Network of Injured Workers Groups; and Mr Phil Biggin, who is its executive vice-president.
The Ontario Network of Injured Workers Groups is a non-profit organization comprised of 34 organizations across Ontario. For many years, injured workers and their families have had to strive for justice and dignity lost simply because of workplace injury and/or disease. For this committee to deny access shows complete contempt by this government, the members on the government side, for the democratic right of input by the citizens of Ontario.
That's been shown on at least five occasions. It's unfortunate that Mr O'Toole is not here with us right now, because Mr O'Toole was in attendance at a meeting last night in Oshawa, where it was clearly pointed out that injured workers wanted the right to be heard, and you are denying the democratic right of those injured workers to be heard.
I ask the question, why? Are you afraid to hear the truth? The gentleman who was here is the truth. That's what makes me angry: when we sit here and you deny the people, the injured workers, their right to tell you what the real truth is about what happens after sustaining an injury. That's a disgrace.
This mockery of justice has made it very clear that this government, which has misled the people of Ontario by creating -- and I repeat "creating" -- the fabricated crisis in the workers' compensation system, is saying very clearly it does not want any compromise or balance, unfortunately. That again is shown by the misleading information that the government had consulted with injured workers. That is completely false. That is a lie.
If you call consultation, as Minister Jackson says, talking to injured workers about personal files, then I'm sorry, I must be out in left field somewhere. That in my books is not consulting with thousands of injured workers in this province. I might add that thousands of injured workers had an opportunity with the royal commission, which your government cut off. They had an opportunity; they had the time to talk to the people who make those changes or recommend making those changes.
To truly have a full understanding of the impact this legislation will have directly on workers, their families and the taxpayers of Ontario, it would only make common sense to hear from all those concerned. This denial of justice is a disgrace, adding insult to injury.
Bill 99 does not merely deal with amendments to the current act. It is a complete rewriting of how injuries or diseases will not be compensated, and that's been demonstrated here today and throughout the hearings. Why was the word "fair" removed from the act?
I want to read you some echoes from the past. You've heard the employers' submissions. There was a vocal minority in the past that considered workers to be animated, disposable machines: You work them as hard as you can, fix them, if it's possible, to return them to productivity and dispose of them as cheaply as possible if they no longer have value in your workplace, all in the name of profit and greed. The voices of this vocal minority are the same voices that are heard today asking for benefits to be reduced -- Bill 99 does that; for back injuries and other soft tissue injuries to be removed from being compensated -- Bill 99 does that. Those words were echoed 90 years ago and we hear the same arguments today. They care little about what happens to the victims of their accidents.
In 1905, factory inspector John Argue described an age of hustle and bustle, of greed and of speed, of complicated and ever-changing workplaces often worked to their utmost capacity. It was an age of unusual danger to life and limb on a continent more noted for material enterprise and progress than for its belief in the sacredness of human life. If we ever forget that human life comes ahead of profit, then we have a very serious problem. We have a great concern with Bill 99 because we feel that is what it's doing.
In 1909 inspector Robert Hungerford felt that the wonderful advancement of industry was resulting in the maiming and injury of many working men and women. These words, again, were spoken over 90 years ago, and I ask you, what has changed? Nothing. Those words are re-echoed today.
In 1996 a total of about 400,000 claims for compensation were registered with the WCB. They recognized over 90 years ago that something had to be done because people were being killed and maimed in the workplace. What do we see today? What have we accomplished? Not very much.
Bill 99, your bill, will steal $15 billion out of the pockets of injured workers and their families. Families will be destroyed. They will be forced on to other income supplement programs. They will be driven further into poverty and despair, and clearly you've heard these arguments in other presentations earlier today. All this, while the business community -- I ask you to make sense out of this -- will be rewarded not only by the $6 billion and the 5% reduction in assessment rates, but will also receive and continue to receive cash rebates of about half a billion dollars annually. Where is the fairness and justice? Where is the crisis? Again I ask you, who is paying? Injured workers, their families and the taxpayers of Ontario, that's who will pay.
I want to remind government members that workers gave up their civil rights to the courts in exchange for compensation. The system agreed to be funded collectively. It was an agreement that it was to be funded collectively by employers through assessment rates, not by the taxpayers of Ontario. Today the government and the business community have the gall to refer to workers' compensation payments as an unacceptable tax on business. I say to you, with the amount of fatalities and injuries that are continuing today, that's unacceptable in today's society.
Chief Justice Meredith in 1914, Justice Middleton in 1932, Justice Roach in 1950 and Justice McGillivray in 1967 could not in their wildest nightmares dream that injured workers would be called upon to surrender their benefits to pay for a debt created by non-adherence to this admonition. Not one of these learned men mentioned workers paying down a debt. If you are not familiar with the names, Justice Meredith was the justice who enacted the workers' compensation system. The other justices were in charge of the royal commissions, and in each of those royal commissions improvements were made, not benefits taken away. Benefits were increased because they saw the need.
Payment of assessments is and always has been a legitimate business expense to protect liability. That's the reason we had workers' compensation introduced. The worker contributes more than anyone else under all compensation laws. If workers only get a percentage of their wages when unable to follow their employment as a result of an accident or disease, they contribute to the accident in lost wages. This is a point that has not come out very clearly in many cases that you should really look at when you start talking about who's responsible: Workers and taxpayers also pay for compensation in the increased price of commodities. That's a fact. That's the price of doing business. If there's anyone in this room who can tell me that a businessman, when he lays his business plans out, does not incorporate labour costs, which include compensation costs, please say so.
In 1949, Wilfred Daniel Roach, a justice of appeal of the Supreme Court of Ontario, reported that the compensation workers receive is not charity, that they have in fact purchased it. This act should be considered for what it was originally intended for. It is not a system for dispensing charity. Injured workers do not ask for charity. It's a right.
I want to mention to government members, if you're not familiar, that when we talk about the $9 billion the government is proposing in Bill 99 through the de-indexation formula, in December 1985 the Progressive Conservative Party position was:
"Mr Gillies: As members of the assembly, we all have to share a very deep concern about the people in this province who labour day after day in dangerous occupations and who put their lives on the line when they go to their workplace. I believe Ontario has recognized for many years the need for income protection, for pensions and for benefits for people who are placed in such situations. After due consideration, I am very pleased to be able to inform the House our party will be supporting Bill 81." That's the Progressive Conservative Party.
"We believe that the time has now arrived for annual increases, however determined, to be granted not as a matter of annual legislative review but as a matter of right and as a result of automatic increases."
That was recognized. What do we face in Bill 99 today? There's not one penny. When you talk about the theft of $15 billion from injured workers, the fact that employers enjoy that 5% assessment rate reduction -- show me in the act where employers are going to pay anything towards fixing the so-called financial crisis.
At this time I would like to turn the floor over to Mr Biggin, who will target in on some specifics, other areas of concern, and then we will do some closing remarks and open up for questions.
Mr Phil Biggin: I find it totally incredible that the government consistently refuses to accommodate injured workers to appear before this committee. These are your constituents. Many of these people were the people who put you into power, yet you hide behind the protocol at Queen's Park to deny these people the opportunity to present their stories.
You had today a very graphic example of a firefighter and how his injury impacted on his life and on the life of his family. These are very important stories that you must be exposed to if you're going to understand what you are doing in Bill 99 and why we so strongly oppose this legislation. This is the most drastic rewriting of the workers' compensation system since Justice Meredith set it out in 1914.
You heard the manufacturers' association today tell you -- and they were incorrect -- that they were at the table. Yes, they were at the table, but they were not taking the position this organization took today, which was to rob and take away $9.3 billion just through deindexation, and $15 billion. We're not creating this. This was very clearly indicated in Minister Jackson's paper.
Why are the injured workers being held responsible for what you call a debt but what in fact is the unfunded liability? Many proposals have been made by our organizations over the years on how to correct that unfunded liability. It doesn't have to be done by robbing injured workers of $15 billion in the next 17 years. This is very unjust; this is very unfair. This is the reason -- and you have to admit this is the reason -- you are afraid to confront injured workers directly.
Why do you think our people are so angry? They're angry because they don't have the opportunity to present their case to you on why Bill 99 is such a disaster. This is something you're going to pay for. You'll pay for it in the hearings that take place in community after community, because we're a provincial organization and we will be there with the injured workers; we will be there with labour to tell you that deindexation is a disgrace. We told the NDP that when Bill 165 came across, and we are telling you today that you are going much beyond anything that is in Bill 165, and this is something injured workers will not forget.
All future workers in Ontario are being disentitled from chronic pain, repetitive strain, chronic stress, having their benefits cut back. There's no reason for this. What are you people trying to do? Are you trying to create chaos in the streets? Are you trying to pit people against people in our communities and across the province? We think Ontario is a great place to work and grow up in, but it's not that kind of place today, because your government is tearing down every piece of legislation that relates to the working people of Ontario who have built it up to the position it is in Canada and in the world.
You have chosen to support big business and those people who are a minority in our province, and you will pay for that in the long run, because the workers themselves will certainly put you out of office. You should reconsider what you are doing with Bill 99, because whatever it is, if it only lasts for another two or three or five years -- and it certainly will be a transitional system -- it will be replaced by something that gives justice and fairness to the working people of Ontario.
Mr Steve Mantis: It's pretty hard to follow up after that one. I'm basically confused. I'm confused because of the process that has been used to develop this bill and I'm confused because the people I see sitting around the table who are empowered to make decisions are mostly new faces. I see a couple of old faces who might actually know some detail about workers' compensation.
It's a very complex system, and to just mirror words the minister is saying as flowery sentiments, which are all laudable sentiments, but to not understand the impact on human beings -- we are not pieces of equipment. That's the way we're being treated in this law. Both the process and the law reflect what I would call a dictatorship, a lack of access. There has been no meaningful process in terms of trying to make a system work.
I'm kind of new in that system too. I've only been working at it and studying it for 18 years. There are people here who have been involved longer than that. We've learned quite a lot, but there has been no access to the process to improve the system. What we get is a bill that proposes dictatorship-type effects. Let me just run through some that I quickly jotted down.
Subsection 21(7), notice of the claim: A copy goes to the employer right away. It's supposed to be a partnership we're talking about in Bill 99. Does a copy go to the worker of what the employer writes? No requirement there.
Subsection 22(3), material change: I am now required to report any material change to the Workers' Compensation Board. What does that mean? What material am I changing that I'm supposed to report? Is it because I got an increase in pay? Is it because my son got a job? What is it? Tell me. Should I report everything because I don't know, because now I'm going to be subject to criminal prosecution if I don't report? Am I becoming a criminal because I lost my arm? Is that the way it works?
Subsection 33(2): The WCB in its wisdom -- and we know about its wisdom -- is now going to tell me what is best for me as a person medically. They're going to tell me that it's more expensive to give me benefits than it is to send me for this new surgical treatment that they know will work great, and I run the risk of suffering lifelong consequences. My personal being is subject to the WCB telling me what to do for medical treatment.
My prosthesis, section 39(1), repair of this thing -- I lost my arm at work. If this arm breaks at work, maybe they'll fix it, but if it breaks somewhere else, there's no requirement to fix this prosthetic arm. Is that justice? Is that fair? Or is that miserly cost cutting all done in the name of, "I can save money over here if I screw you"? Is that the kind of system we want in Ontario? Do we not want systems that say, "Let's sit down together and actually make systems that will work for both of us"? I think we can find that common ground. When we've sat down with employers, we've found that common ground.
I find it really very disturbing when we see a lack of participation by the people that this system is all about, and it's all about dollars. That's what's most important here: Who is going to get the almighty dollar and be able to put it in their pocket? I don't know what they're going to do with it, but what we see is that we're the ones who have to give it up, the $15 billion over 16 years, $1 billion a year. Why? Because I got hurt. Because I lost my arm, I now have to pay $6 billion to the employer?
The Vice-Chair (Mr Jerry Ouellette): We're over the time already. If you could wrap up, we'd appreciate it -- I've already let you go considerably past the amount of time -- just to be fair to the other presenters.
Mr Mantis: I appreciate that.
Mr Crevar: You've heard many comments, many concerns. The one that hasn't been addressed by our organization is the release of medical information. When you question yourself, "What are we talking about?" I ask you, the members of this government, as a taxpayer -- I have copies of this form I want to give to you. I want you to sign it so that I can get access to your medical information, so that I can determine whether you are fit and capable of doing your job. I ask you to take this form.
This is an invasion of privacy. I know it sounds ridiculous, but that's the reality of what that piece of legislation means. I do not expect and do not want your medical information. When you run for office, you run on the trust of the people who elect you.
In closing, I ask again, and I hope the members of this committee here -- we want to ask you to go back to the Minister of Labour. She can make that decision to extend the hearings so that people across this province can have access to you to tell you the truth of how injuries impact on their lives.
The Vice-Chair: We thank you for your presentation.
Mr Biggin: There's only one way we can demonstrate symbolically what you're doing to injured workers.
The Vice-Chair: No demonstrations.
Mr Biggin: In other words, if your government is not prepared to extend these hearings, then all these hearings are are gag hearings. You are gagging the people of Ontario.
COUNCIL OF ONTARIO CONSTRUCTION ASSOCIATIONS
The Vice-Chair: We would ask the next presenters to come forward, the Council of Ontario Construction Associations, David Frame and Don Stewart. Thank you for attending today. Could you introduce all the members of your delegation so that Hansard has them on record as well?
Mr David Frame: As you said, we're the Council of Ontario Construction Associations. Immediately on my right is Gary Robertson of Nicholls Radke, beside him is Denise Peters of the Denfram Group, and beside me is Don Stewart, who chairs our WCB committee. My name is David Frame, and I'm the executive vice-president of the council.
The Council of Ontario Construction Associations, or COCA, would like to thank you for the opportunity to present some of our views and suggestions on behalf of our members. COCA's direct membership is 46 associations, which in turn represent 8,000 construction employers and their suppliers. We are active members of the Employers' Council on Workers' Compensation and are fully supportive of their earlier comments.
Our WCB committee is very familiar with the long list of shortcomings of the current legislation and has made many recommendations for how those can be fixed. Bill 99 addresses many of these problems. We are encouraged by many of the changes to the benefit delivery model, which address many of the shortcomings of the present future-economic-loss process, and by the emphasis on employer and worker accountability.
We commend Minister Witmer and her staff for the work they have done and we support it, contingent on addressing some outstanding issues.
Construction industry assessment rates have increased over the past four years; they are now approximately 8% of our assessable payroll. A few rates such as masonry and roofing are facing increases of 100% to 120% over a four-year period. Our members are demanding relief from higher assessment rates that are driving costs up and have contributed to five continuous years of negative growth in the construction industry. As an example, the cost of a $200,000 home has increased about $3,400 since 1993 and will increase about another $1,400 if they are required to pay current target rates next year.
COCA has done extensive research to try to determine the reasons for these unsustainable rates and costs. Chart A, as you see, will clearly show that the problems are not being driven by the increased number of lost-time injuries. In fact, in the 10 years between 1985 and 1995, the construction industry has decreased its accident frequency rates by an amazing 63%. Rates have continued to decrease through the last year as a result of a successful experience-rating program called CAD-7 developed specifically for the construction industry. Conventional wisdom would assume that a substantial decrease in accident frequency should produce lower rates, but it has not, indicating a substantial problem in the system.
The most helpful analysis that has been produced for us comes from a comparison of the cost per lost-time injury in the construction industry and that of schedule 1 or most of the rest of the WCB system. We're simply amazed to find that the average lost-time injury outside of the construction industry carries a cost of just over $13,000, while the cost inside the construction industry is $34,925, or 261% higher.
The breakdown of what is involved in these comparisons is contained in chart C. It shows that while all costs are higher, the major driver is the pension costs, particularly for future economic loss, which accounts for 51% of all costs in the construction industry. Most significantly, the board's statistics established that injured construction workers are two and a half times more likely to be awarded a future economic loss pension than injured workers in the rest of the system. This, to a large degree, explains why these costs are so much higher in this chart.
Industries and businesses that have been successful in keeping workers' compensation rates down have often done this by successfully returning their injured workers to full employment. The result often is no pension award, no dependency on the board for compensation, and the employer continues to enjoy the benefits of a productive, motivated employee.
The situation in the construction industry is often very different. There is little continued relationship between the contractor and the employees when a contract is completed and work no longer exists.
Some larger contractors have had some success re-employing their injured workers because of the volume of their work. The limitation is that the average size of a construction firm is about five to six employees and the average term of a job, typically, three to four months. We all recognize that this severely limits the likelihood of return to work with the accident employer. As a result, an injured construction worker is much less likely to return to work when fully recuperated than someone who works for a non-construction employer. Our conclusion is that an ineffective return-to-work regulation is at the root of these problems.
In recognition of the problems of the construction industry relative to this issue, Bill 99 proposes some limited exemptions for employers primarily involved in the construction industry in sections 40 and 41. We see this as an important first step to allow the industry and the board to address this problem. Unfortunately, we believe these provisions are not adequate.
Since last November, Don Stewart has chaired a subcommittee on return to work which has explored the options for a regulation to address this issue. We have a working proposal that has been submitted to the board, the Ministry of Labour and the Provincial Building and Construction Trades Council of Ontario for their reaction. That proposal, as a working document, is appended to this submission.
We cannot go into the full details of that proposal today, but we'll summarize it and make recommendations for changes in Bill 99 that are needed for us to go forward with it.
Our research has led us to conclude that the following five issues must be addressed in the new regulation for return to work in construction. They are: (1) 80% of construction workers do not have reinstatement rights; (2) an injured construction worker is much less likely to have a job to return to than the average worker; (3) injured construction workers are 250% more likely to be awarded permanent pensions than other workers; (4) construction workers who are unable to return to the industry have few vocational rehabilitation options; and (5) the current obligations often discourage employers from reinstating injured workers.
Under our proposal, we would like to address what was first done under Bill 162 when the board was given the authority to develop return-to-work regulations. The problem we face is that many inappropriate restrictions remain. Only workers continuously employed for one year by an employer who regularly employs 20 or more workers were covered. In our estimation, this effectively eliminates more than 80% of construction workers. Our experience is that the law cannot be effective when applied to such a very small group.
The law requires that construction employers who have reinstatement responsibilities must re-employ injured workers for at least six continuous months. The average length of employment in construction is three to four months, depending on the project. When the employer has no continuing alternative work, the worker is laid off and, as a result, the employer is fined the equivalent of one year of the worker's salary by the board for not making the requirements under the current act. It's much easier, obviously, for that employer to claim they are not able to reinstate than it is to be found in breach of the act.
If a successful regulation is going to be developed, the act must recognize the flexibility required by the construction industry that is not allowed by Bill 99 as it is currently stated. The regulation we are advocating for is an industry-based solution. The organized sector uses hiring halls because of the relatively short duration of the worker-employer relationship. Experienced workers are sent to employers based on their trade requirements. When the project is completed, the workers are sent back to the hiring pool for a new assignment. Our current regulation attaches the worker to the injury employer, even if there is no work and all other workers have moved on. That's a disservice to that worker and to the employer.
We propose that if the injury employer has no work available in the worker's trade, he or she must be made available for work with an alternative employer. The law should apply to all construction employers and their employees so that they have similar rights and responsibilities. Bill 99, as it now stands, does not allow for this.
An industry-based solution should require that all participants carry certain responsibilities. We believe it's most vital that the board have a more active role in managing these construction claims. Bill 99 proposes that the board will become involved when it is determined that the worker will not return with an injury employer. In order for timely re-employment to occur in our industry, the board must make a number of determinations early and initiate various processes early. These include an assessment of if he or she can perform essential duties or if suitable work can be arranged with an alternative employer. Failing these, a determination on advisability of a labour market re-entry plan must be made.
With the absence of an accident employer, the board simply must step in to manage the return-to-work process. It's not being managed now, and it's part of the problem. This is fundamental if we are to address the failures of the current system.
To sum up, I'd like to provide you with the following three recommendations. We'd like you to (1) direct the board to initiate a process with labour and management representation that will come together and produce a return-to-work regulation; (2) direct the board to take on the responsibility for management of a return-to-work program in construction; (3) amend section 41(8) of Bill 99, the section that gives some exemptions and allows the board to make regulation for the industry, so that subsections (1) and (2), combined with (4) through (7), which are already in the act, plus the addition of (9), do not apply, giving the full range of flexibility, allowing for the above principles to be incorporated into a new regulation for our industry.
You heard earlier from the construction trades council. From the remarks I heard, I believe they're largely in agreement with these basic recommendations and that the goodwill exists to allow the industry to develop its own solution in concert with the board.
As you can see, this is an important issue. It's the issue we've chosen to focus on today among the numerous issues that exist in Bill 99. We thank you for your consideration, and we would welcome any questions you may have.
The Vice-Chair: We have slightly over two minutes per caucus, beginning with the Liberals.
Mr Patten: Thank you for your presentation. Every witness or group that comes before us of course has a different vantage point, but I was pleased that, coming from the employer side, you're thinking as partners, you're not just thinking purely in an imbalanced manner, as we had earlier in the day, because it never works in the end anyway. As I'm sure you will agree, your greatest resource is your people who are working for you. Actually, I would concur with that. I met with some of the people from the trades, and I think they feel they've got a pretty good working relationship to work out some of these new arrangements.
I respect that recommendation. I like it, and I think the board would take it. There are two problems with the legislation: (1) whether the government side will listen, because at the end of the day they can outvote the other party members, and (2) whether there's the flexibility to respond to this. Anything that can help the employer and the employees work out their arrangements obviously is a stronger approach than trying to impose something. My worry is that some of the imbalance in this will hurt everybody in the long run. The board may not pay at the end of the day or some of the employers may not, but other people will end up paying in other ways.
We don't have much time, but I just want to say I appreciate that, and you are contrasted with another presentation today that showed no concern, in my opinion, or little concern for the relationship or the plight of people who in fact did get injured.
Ms Martel: I appreciate the presentation. We do understand from the brief that was given earlier on from the trades council that in fact they would be amenable to much that has gone on here, so I certainly hope the government will take that under advisement and do something positive with respect to this legislation, at least that part of it.
But I want to ask you something different. I have a real concern about the government's view that workers are the ones who are going to be responsible now for starting a claim. I have very serious concerns about that, the change of that happening from, for example, an employer having to automatically file or a doctor being able to file a form 8.
Frankly, in your industry you have a lot of people who would work on any number of sites, in different geographic locations. You have a large number of people who would be working with unorganized employers. I am frankly really concerned that there will be any number of attempts of intimidation that will be used to force a worker not to file. I really think that's what the end result is going to be. I wonder if you can make some comments on this proposed change. Do you really think it's going to allow workers, especially unorganized workers, the opportunity to file a claim?
Mr Gary Robertson: First of all, I think there's no question that the work process does take place outside of what you might consider an employer's home operation. The work takes place across the province. In many cases currently, claims are initiated by other than the employer anyway. It is not a situation where all accidents are reported to an employer. Often, as the case may be, whether organized or unorganized, it is the doctor's first report which initiates the claim. Subsequently there is an investigation for which an employer files the form 7.
I think the process in terms of the worker driving the claim status may clean up some of the difficulties that exist currently, even in reporting accidents. There's going to be a requirement where there's a benefit directly related to the filing of an accident report or a claim by the worker. Whether the worker reports to the employer or to the board, the process can then start to take place and the employer then can subsequently continue with the investigation process to provide additional information.
You've got to remember too that within the industry there is a variety of employer practices. It's not a captive workforce. You're dealing with employees who move continuously from employer to employer. While one employer may have one procedure, another employer may have another procedure, and another down the road. To focus on the worker submitting the report and the claim is driving to the point where the worker is going to reap the benefits directly and therefore shouldn't be making the claim.
The Vice-Chair: I'll move to the government caucus.
Mr Jack Carroll (Chatham-Kent): I'd like to zero in on the return-to-work thing. Obviously it's a particular problem in your industry. You've done a great job with the frequency of accidents, down 63%. Your assessments are going through the sky. You're suggesting that the WCB take the lead role in the return-to-work issue as it relates to your industry because of the short employment spans and the fact that there are so many different small employers. Representing 8,000 small construction companies or people who are in this industry, what role do you see your association playing in helping to design an appropriate return-to-work mechanism that would work for your industry?
Mr Frame: As I said at the beginning, we've spent about six months now working on the issue. We wanted to start early because we were worried that the legislation wouldn't give us the latitude to develop something that was workable, and we've come to the conclusion it doesn't.
The problem we face is, as we talked about the nature of the employment relationship, if that employee does not have an employer to go back to, they're out in nowhere land. As it stands right now, their union isn't necessarily involved in return to work -- may or may not be -- their former employer may have no work, but they have a responsibility to put that person back to work. So they're probably not working when it's the most important time for them to be working: as soon as they are able to return to work.
We're saying someone's got to coordinate this, and the one constant in all of this is the board. The board should be aware of the circumstance. Unfortunately, Bill 99 backs away one step on re-employment and says, "It's up to the employer and the worker until certain circumstances are determined." We're saying in our circumstance that's not good enough. The board's got to be on top of it.
We're going to recommend that within six weeks a recommendation or a recognition come from the board that they've either gone back to work, they're about to go back to work or that certain processes have to be taken to facilitate it. This is going to cost more money in terms of board time and board staff, but as you can see in our charts, we're paying out hundreds of millions of dollars more per year because the system isn't working. We're convinced that by investing a little more money into the system at the board, it's going to save a lot more money in the long run.
The Vice-Chair: We thank you for your presentation. I'm sorry, our time is up.
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Vice-Chair: I would ask the next presenter, Leah Casselman from the Ontario Public Service Employees Union, to come forward, please. Thank you for taking the time to come out and present today. Could you identify yourself and the other members you've brought along for Hansard as well, please.
Ms Leah Casselman: Good evening. My name is Leah Casselman. I am president of the Ontario Public Service Employees Union. With me today are Bob DeMatteo and Robin Gordon. Also in the gallery you will notice -- well, perhaps you won't notice, but just in case you were wondering, there are a number of the members of our board of directors here as well to witness the proceedings on Bill 99.
Let me begin my remarks on Bill 99 by saying that once again the Ontario government is showing its true colours. In its ongoing assault on fairness and decency for working people and their families, it is gutting every piece of legislation that protects us. Make no mistake: Bill 99 is part of that shameful legacy.
Bill 99 will slash the benefits of injured workers. It will cut their entitlement to fair compensation for injuries inflicted on them at work. At the same time, it gives enormous arbitrary power over injured workers to employers. It transfers billions of dollars in compensation money that belongs to injured workers to the treasuries of their employers. Yet despite these massive changes which will relegate the victims of employers' neglect to a life of poverty and misery, this government has ruled to restrict open, public debate.
Our membership is appalled by this government's attempt to ram this legislation through the Legislature without full public debate, and on their behalf our union comes before this committee in protest.
It's clear to us that we no longer have democratic government in Ontario. This is not a government which governs in the interests of the greater public good. This is a government that rules the many in the interest of the few. Democratic government is about consultation; it's about ensuring the people have a voice in decisions that affect their lives; it's about balance and fairness. Such lack of openness only reflects this government's contempt for the public and its real fear that an open debate will blow its cover of deception.
Make no doubt about it: This proposed legislation and the government's media spin is about deceit and deception. In the expectation that if you tell a big lie often enough, the people will eventually believe it, the government has portrayed this legislation in a number of ways. The employers and the government have deceived the public into believing that Ontario's compensation system is in financial crisis. They have perpetuated the lie that employer premiums are placing us at a competitive disadvantage.
They have also engaged in the worst form of victim bashing. They have portrayed injured workers as an overpaid, lazy lot, living off the system, who are probably faking their injuries. They blame injured workers for the WCB's fictitious financial crisis and its impact on our economy.
Nothing is further from the truth. The truth is that the board is not -- and I repeat, not -- in debt and has not had to borrow a dime in its 80-year history. This is a corporation that showed a $510-million profit in 1995. It has $8 billion in assets and has a funding ratio that has steadily risen to 42% of its future liabilities.
The truth is that Ontario's employers enjoy WCB premiums which are lower than two thirds of North American jurisdictions. In fact, if employers were paying what they should have been paying and if all employers in the province were paying into the fund, there would be no unfunded liability.
The truth is that Bill 99 is not about resolving a financial crisis, it is not about positive social change and it is certainly not about prevention. Then what is it really about? It's about allowing employers to get away with not living up to their responsibility for the injury and disease they cause, it's about rewarding them with rate reductions at the expense of workers' benefits and entitlements, and it's about offloading the real cost of workplace carnage on to the taxpayers.
Just where do you think your fellow human beings will go when they can't work? Where are they going to go when their benefits are so reduced that they will be unable to provide the barest necessities of life for themselves and their families? I'll tell you where they will go: They'll wind up on the welfare rolls; they'll be in the psychiatric wards, maybe the one at Sunnybrook if they're lucky; they'll be on the streets; or they'll be in our jails, super or otherwise. It's the taxpaying citizens of Ontario who will pick up the cost of these services and the resulting social programs. The savings from these efficiencies are a deception.
The only people who benefit from this legislation are the employers who are being let off the hook for the injuries and diseases they cause in the workplace. It is they who will gain billions of dollars from this transfer of compensation money.
Since our allotted time is extremely short, I will just be covering a few areas of concern to us in this proposed legislation.
The first one is full compensation. Bill 99 breaks the historic compromise made by workers and employers in 1914. Workers gave up their right to sue their employer for work-related injuries in return for a no-fault system that gave them the right to full compensation for injuries suffered at work. Employers, for their part, were protected from any legal liability for workplace accidents and disease in exchange for fully funding the cost of this system.
With Bill 99 that historic compromise between worker and employer is dead and buried. The Conservative government has come down firmly on the side of the employer. Bill 99 will deny workers' rights, suppress claims, limit compensation and gut procedural fairness in order to relieve employers of their obligations and reward them with rate reductions. Under Bill 99 workers' benefits are under attack from all angles. Benefits will be reduced from 90% of a worker's loss of earnings to 85%. Pension contributions for workers with permanent disabilities will be cut in half so that injured workers are more likely to be impoverished in their old age. The board will have a new discretion to reduce a worker's benefits on the basis of their pattern of employment. Seasonal workers will receive lower benefits regardless of their true loss of earnings capacity.
The most significant attack on injured workers' rights to full compensation in Bill 99, however, is the de-indexing. In the mid-1970s, yet again another Conservative government recognized that without inflation protection the real value of injured workers' benefits was being driven into the ground. Funny, eh? They began increasing pensions on an ad hoc basis with reference to the consumer price index and in 1985 enshrined full indexation in the Worker's Compensation Act.
Bill 99 slashes inflation protection for most workers with permanent disabilities. Many of these workers rely on partial pensions to support themselves and their families. While the change in the indexing formula may appear slight on paper, its impact on these workers will be cumulative and severe. The Jackson report projected that this change alone would deliver over $9 billion in savings in the next 17 years. In other words, this government is stealing $9 billion from the pockets of injured workers and using it to cover the cost of insufficient employer assessments. As if this were not enough, the government gives employers a 5% across-the-board rate reduction, which transfers even more compensation money to employers and will only prolong the unfunded liability.
Stress and chronic pain disabilities: The proposed act is particularly vicious in its attack on workers who suffer from stress and chronic pain disabilities. Under the act, these workers are treated with suspicion and disrespect and their rights to compensation are limited or completely denied, regardless of the real merits and justice of their claim.
Stress is a serious occupational hazard which can cause very real temporary or permanent disabilities. Our union represents many of the workers in Ontario who are most at risk for stress-related injuries. Workers in psychiatric hospitals and correctional facilities face dangerously high levels of stress as a result of the number of factors they have to face on a regular basis: understaffing, overcrowding, insufficient training, shift work, harassment and violent assaults by patients and inmates. Workers in ambulance services who have to deal with enormous human suffering and mangled bodies and corpses are in a constant race to save peoples' lives and work long and irregular shifts.
Under Bill 99, if these workers suffer injuries related to the hazardous levels of stress on the job, they will be denied compensation out of hand. No regard will be paid to the available facts or medical evidence in their cases. The only exception applies to workers who suffer from "acute reaction to a sudden and unexpected traumatic event," probably the introduction of yet more legislation. This is an extremely narrow and complex exception. You can put your claims in now.
There is no guarantee that workers in psychiatric hospitals, correctional facilities or ambulance services won't be denied on the basis that they must expect traumatic events in the course of their employment. Even if workers manage to jump this very severe legal hurdle, their claims will be denied if their stress was caused by "their employer's decisions or actions relating to the worker's employment." This would include assignments, conditions of work, discipline or termination, nearly all the things that cause them stress in the first place. In addition, workers who suffer from stress-related illness as a result of sexual and racial harassment -- and I know that's not a high priority -- by their employers will be denied any compensation. That may be kind of a sore spot these days, right?
Chronic pain: Workers who suffer from disabling chronic pain syndromes will be at the mercy of arbitrary board regulations. Under the proposed scheme, workers who do not heal within the so-called usual time for their injury will be dumped into a pain management program for a maximum of four weeks. Following their participation in the board's quick-fix pain clinic, they will be denied any compensation for health care costs or their loss of earnings. If a worker doesn't qualify for the board's quick-fix pain clinic, their benefits can be terminated immediately.
Chronic pain syndrome and fibromyalgia are medically recognized conditions which can be traced to the original workplace injury. Frequently the result of soft tissue and repetitive strain injuries, they are affecting a growing number of workers. Women are particularly vulnerable to these injuries due to their concentration in small-scale manufacturing and office work. The suffering of these injured workers is real, whether the government chooses to recognize it or not. Chronic pain can leave a worker barely able to move or sleep or take care of their children or their homes. It often leads to severe depression and family breakdown.
While Bill 99 limits or excludes the claims of workers with mental stress and chronic pain disabilities, it does nothing to restore their right to sue their employer. For these workers, the historic compromise of workers' compensation is dead. They have no right to sue and no right to full compensation. As this committee has been told repeatedly, the provisions of Bill 99 on mental stress and chronic pain are clearly unconstitutional. By passing this legislation, the government is therefore inviting costly and unnecessary litigation at taxpayers' expense, again something you seem to be getting used to.
On the return to work, Minister Witmer claims that the proposed Workplace Safety and Insurance Act promotes a timely and safe return to work. In truth, the act encourages employer harassment and coercion of injured workers to return to work before they have healed. This will inevitably result in serious aggravations and reinjuries. Employers are free to make arbitrary decisions on a worker's ability to return to work with limited medical information and no board supervision. Experience rating, which provides incentives for employers to limit the duration of lost time claims by hurrying workers back to work, will simply aggravate the situation.
Under this draconian legislation, workers must cooperate with their employer's demands. If they don't, they could risk having their benefits reduced or suspended until they can convince the board that the employer's actions were inappropriate. This system provides an open season for employers' abuse and harassment of injured workers.
The Workers' Compensation Appeals Tribunal: In 1985, the Conservative government created the Workers' Compensation Appeals Tribunal in response to calls from both workers and employers for an independent level of appeal. In its current form, the tribunal holds back the tide of complaints to the Ombudsman and costly judicial reviews.
Since its inception, WCAT has been a highly respected administrative tribunal under the leadership of the chair, Ron Ellis. The government's recent interference with the composition of the tribunal has compromised its credibility. First, the government removed the well-respected and knowledgeable Mr Ellis and replaced him with a Tory government appointee. Then the Premier's office ignored three qualified vice-chair candidates recommended by both the tribunal and the Ministry of Labour in favour of three partisan appointees who have no experience in workers' compensation. Representatives of the labour movement who sit on the WCAT advisory committee have resigned in protest over these blatant political interferences.
This bill undermines the independence of the appeals tribunal and makes a mockery of the principle of procedural fairness. Under Bill 99, the tribunal will no longer be allowed to interpret and apply its governing legislation according to the principles of statutory interpretation and natural justice. In each appeal, the board will dictate what board policy applies. The tribunal will not be allowed to disagree about which policy applies or deviate from any policy, even if it is contrary to the act.
In the past, the tribunal has been an important check on the board's reluctance to recognize new occupational diseases even in light of overwhelming medical evidence. This change, in concert with the elimination of the internationally respected Occupational Disease Panel, shows the government's agenda to halt any progress on the recognition of work-related disease. Clearly the government is more concerned with protecting employers from the real costs of work-related injury and disease than it is with ensuring workers get treated fairly and decently.
The Occupational Disease Panel and prevention: Bill 99 is not about prevention. In fact, this bill does everything to ensure that prevention does not occur. Prevention needs more than the minister's platitudes. As I just mentioned, Bill 99 abolishes the Occupational Disease Panel. The ODP is an arm's-length research and advisory agency set up to address the relationship between occupational disease and the workplace. It is an area that the Ontario board has consistently ignored throughout its history because of its obvious vested interest in suppressing disease claims.
Over the last number of years, the ODP has made great strides in filling the enormous gap in disease recognition. The quality of its research and findings has won it worldwide respect. More importantly, as a result of its work, it was beginning to have an important impact on prevention, which I thought this was supposed to be all about.
We can't emphasize enough the importance of disease recognition as essential to setting priorities and the development of effective prevention programs. Indeed, as a result of the work of the ODP, we are beginning to see important proactive steps in the area of prevention. For example, research conducted by the ODP showing the relationship between metal working fluids and cancer has led General Motors to adopt a more stringent exposure limit than it was required to by standard. Some other companies have introduced less toxic substitute oils. As a result of the ODP's report on cancer and heart disease among firefighters, employers have taken steps to provide better protection from exposure to toxic substances. The abolition of the ODP will effectively kill this kind of pioneering work in disease prevention.
Finally, our members are not taken in by the minister's commitment to make Ontario's workplaces among the safest in the world. I think her record pretty much stands on that. Everything we've witnessed so far shows that the government is intent on destroying every health and safety measure protecting workers.
It is difficult, if not impossible, to accept these verbal commitments as a true reflection of this government's motives and intentions in view of the fact that the minister has recently done the following: reduced health and safety certification training requirements; gutted the Ministry of Labour's occupational health program by laying off occupational health nurses and physicians, industrial hygienists, engineers and all technicians and specialist staff; closed the occupational health laboratory and library; and disbanded the toxic substance standard-setting committee. These initiatives have reduced the ministry's capacity to effectively administer and enforce the Occupational Health and Safety Act. They have reduced the ministry's ability to drive prevention programs.
More recently, the minister introduced her discussion paper on an overhaul of the Occupational Health and Safety Act. This discussion paper contemplates the massive deregulation of protective standards, relieving employers of their specific duties to protect workers and abolishing many of the protective rights that workers now enjoy.
In conjunction with the changes proposed in Bill 99, we can only conclude that the government and its supporters in the employer community see workers as expendable Canadians, for in truth these legislative initiatives are a licence to kill and maim workers.
On behalf of the members of my union, the Ontario Public Service Employees Union, I call on the government to withdraw this legislation immediately.
The Vice-Chair: We thank you for your presentation. You've timed it quite nicely.
This committee stands adjourned until August 6.
The committee adjourned at 1937.