ONTARIO LIQUOR BOARD EMPLOYEES' UNION
BUSINESS COUNCIL ON OCCUPATIONAL HEALTH AND SAFETY IN ONTARIO
CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1750
HUMAN RESOURCES PROFESSIONAL ASSOCIATION OF ONTARIO
CONTENTS
Monday 23 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
Ontario Liquor Boards Employees' Union
Ms Julia Noble
Business Council on Occupational Health and Safety in Ontario
Mr John Murphy
Ms Rosa Fiorentino
Canadian Mental Health Association, Ontario division
Mr John Kelly
Ms Lisa McDonald
Ms Ruth Stoddart
Canadian Union of Public Employees, Local 1750
Mr Sid Ryan
Mr Paul Simourd
Medical Reform Group
Dr Ted Haines
Occupational Disease Panel
Ms Nicolette Carlan
Human Resources Professionals Association of Ontario
Mr Mike Failes
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 RichardPatten (Ottawa Centre / -Centre L)
Mr MarioSergio (Yorkview L)
Clerk / Greffière: Ms Donna Bryce
Staff / Personnel: Mr Ray McLellan, research officer, Legislati Research Service
The committee met at 1533 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.
ONTARIO LIQUOR BOARD EMPLOYEES' UNION
The Vice-Chair (Mr Jerry J.Ouellette): I call this afternoon's hearings to order. Just so people understand, this is a committee of the Legislature and, as such, we are governed by all the rules of the Legislature, and no demonstrations are allowed.
We'll call our first presenter to the table, Julia Noble from the Ontario Liquor Boards Employees' Union. You have 20 minutes for your presentation to use as you see fit. If there's any time remaining, we'll allow for equal questioning from all three parties.
Ms Julia Noble: Good afternoon. Thanks for the opportunity to address you today. My name is Julia Noble. This is Heino Nielsen, my colleague from the Ontario Liquor Boards Employees' Union. I am counsel to our union. We represent 5,000 people throughout Ontario.
Today I want to focus on two primary aspects of this bill that are of concern to our group. These are, first of all, the imposition of time limits on appeals and the written requirement that's being proposed; and second, the requirement that the appeals tribunal follow board policy.
With respect to time limits on appeals, as you will know, section 114 states that there is a time limit of six months with respect to most appeals, and that time limit does not exist right now. Bill 99 proposes an even shorter time limit for appeals where the issue is return to work. The bill also proposes that objections must be in writing. Those requirements are proposed to be in place both with respect to appeals to the board and appeals to the tribunal. We have concerns regarding these proposed amendments.
Time limits on these appeals to the board and the tribunal will have the effect of increasing litigation, in our view. This is a result which will be a burden to workers and employers alike. Why will time limits increase litigation? The reason is that all parties, if this amendment is passed, now will appeal every issue to preserve their appeal rights. Decisions made by the board often have many issues in them, and many decisions are frequently made by the board at the same time regarding a worker's situation.
Because the right to appeal any of these issues will be lost after six months from the decision, or 30 days in certain cases, employers and workers will have to appeal all the issues just to preserve their rights, otherwise their opportunity to dispute a decision of the board is lost and gone forever. For instance, the board could issue a decision that says that a particular worker has a permanent injury at a level of, let's say, 10%, that the worker has not been offered suitable work by the accident employer and that the worker is entitled to benefits for loss of earnings at a level of $100 per month. Those are three separate issues, but they are related.
The worker or his representative probably will not have time to obtain the worker's file and review it and obtain any additional necessary medical information before six months have passed, so they will have to appeal this issue within the time limits and obtain the information later. The employer or employer's representative will also appeal the permanent impairment award within the time limits so that they don't lose their appeal rights, and they will also obtain and review their information later. In the meantime, the board is going to be processing both appeals.
The same holds true for the decision about suitable work. The employer will appeal this issue within the time limits, whether or not the employer is considering offering a different job to the worker, because they can't afford to let their time limits expire. Both parties will also appeal the issue of loss-of-earnings benefits at a level of $100 a month so as not to lose their appeal rights. In short, whatever decision the board makes, both the worker and the employer will appeal it because they don't want to lose their appeal rights.
Under the current system with no time limits, parties have time to consider their positions and the medical evidence before deciding whether or not to appeal. This new system will be a strain on the resources of the board, on employers and on workers and their representatives, including offices of members of Parliament who, as we know, handle large workers' compensation caseloads.
Another reason that workers' representatives will feel pressure to file appeals regarding everything is that worker reps will probably be liable for missed deadlines if an appeal is not filed within six months for a worker who has come to them for assistance. So if there's a file sitting in your caseload and you miss a time limit, you could be sued. The worry of lawsuits regarding negligence is something both worker and employer representatives will face under this amendment, so we're definitely not in favour of it.
Then there's the requirement for written appeals. The requirement for written appeals will also increase litigation, we believe. Most workers and small employers will feel the need to obtain representation to get assistance on a written appeal, thereby formalizing the appeal process and making it more litigious. There will be a strain placed on the resources of representatives such as the office of the worker adviser, the office of the employer adviser and MPPs' offices and other reps, as reps scramble to file written appeals within the six-month time period.
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Also, and I think this is important, the requirement for written appeals means people who have a limited working knowledge of the written English language will be at a serious disadvantage. I'd be interested in hearing what the committee thinks of that and if you've thought of any amendments in that respect.
The second major issue I want to talk to you about today with respect to this bill is the issue of the appeals tribunal and the fact that board policy is to be applied by the appeals tribunal. The bill proposes, "Where a board policy applies with respect to an appeal, the appeals tribunal shall apply the policy when making its decision." That is a very important change.
Right now there are two separate entities: There is the act and then there's the policy. Sometimes the act and the policy are in accordance with one another and sometimes they conflict. When they conflict, the way things are now the appeals tribunal makes a decision about that conflict because the appeals tribunal currently has the jurisdiction to ensure the act is enforced. After all, the act is what is drafted by the Legislature, not the policy.
Under the proposed change in Bill 99, the appeals tribunal could not enforce the act if there is a conflict between the act and the policy. Only the courts would be empowered to enforce the act pursuant to a judicial review of an appeals tribunal decision. For the lawyers in the group, I don't have to tell you that judicial review to the courts is costly and time-consuming, especially compared with the administrative process at the appeals tribunal. Yet this will be the route that employer and worker representatives will be forced to take, if this amendment goes through, in cases where the board policy conflicts with the act. We all know there are lots of cases where the board policy conflicts with the act.
There will be a high degree of success in judicial review when the grounds for the appeal to the court are that the decision-maker did not apply the act. So if the tribunal has to apply the policy, they're going to get judicially reviewed in court. What that means is that all the parties are now going to have to go to court in these cases. I'm talking about the employer, the worker, the board and the appeals tribunal. Everyone has to get gowned, hire their lawyers and go to court, and that's going to happen a lot. I think that's a big waste of resources, the reason being that the appeals tribunal is there and it is a faster and more efficient way of resolving these matters.
I also wanted to make a comment to you about this process. I understand this committee has not scheduled presentations by any injured workers. I understand this is the case even though there have been over a thousand requests from injured workers to present. That surprises and worries us. We believe it's impossible to make important decisions about legislative change without hearing from one of the major groups that will be affected and impacted by the changes you're considering.
These people can give real-life examples you should consider and take into account. They're your constituents, they're your taxpayers, and as members of this committee you each have a big responsibility to consider everything before making a recommendation. So we think further dates should be scheduled so that you can hear from all the affected parties.
In the time I have remaining, rather than have you ask questions of me, because I think I've made my points clearly, and you may have heard my points before, I'd like to ask you some questions. I'd certainly be interested in your replies, especially from the members of the committee who sit for the government. The three questions are:
First, will the committee recommend removing time limits and the written requirement regarding appeals from Bill 99?
Second, why should the stakeholders be forced to proceed through the courts when the appeals tribunal can review policy quickly and cheaply?
Third, will the committee recommend setting further hearing dates to hear from injured workers?
I'd be very interested in your answers to those questions.
The Vice-Chair: The normal procedure, just so you understand, is that we go through each of the caucuses and allow them equal time. That gives us about three minutes and 20 seconds each. We'll start with the official opposition.
Ms Noble: I notice that we started late. Does that mean --
The Vice-Chair: No, your time is not affected at all by that.
Mr Richard Patten (Ottawa Centre): Thank you for your paper. It is very clear, by the way, and very succinct. I appreciate it very much. I also would like to hear the responses to your three questions. I think they're bang on and they should be answered over the course, and when we get to the government members -- how much time do we have?
The Vice-Chair: You have a little over three minutes.
Ms Noble: Yes, perhaps we could hear from them on this. Thank you for your support.
Mr Patten: The other thing I wanted to say: On the injured workers' group, I asked the minister that question in the House last week and she avoided the question. I don't know why she does, because I think if invited to a meeting, and injured workers would consider doing this -- invite the minister and invite the committee members and see who comes -- that might be an alternative way.
The question is related to time. I don't think I'm a cynical person, but it seems to me that many of these devices are designed to try to control costs, which is fair ball in some ways. But as you pointed out, and it's been pointed out by employers, pointed out by injured workers' groups, pointed out by almost everyone, the minister says she is prepared to revisit this particular piece, but I know that related to the time limits it's a very big issue.
What are you proposing in terms of time limits? That the existing situation remain as it is?
Ms Noble: That's correct. There are currently no time limits.
I'd actually like to hear on my questions from people who support the bill, maybe from the government side. I really appreciate your support.
Mr Patten: We go in rotation. We each have three or four minutes. That's the way it works.
I suppose what you're saying in terms of the issue of the tribunal and the board -- and really they have two different functions. One has a policy function; the tribunal has to abide by the act. You're saying that if the tribunal has to live with a board policy that is in contravention of the act, this will lead to litigation.
Ms Noble: Absolutely. Litigation in the courts.
Mr Patten: We agree with you on that.
Mr Mario Sergio (Yorkview): I have a question.
The Vice-Chair: You have about 15 seconds left. Quickly.
Mr Sergio: On page 4, section (B), with respect to the language problem and the six months, stuff like that, what are some of the major concerns you see with respect to that particular clause?
Ms Noble: With respect to written appeals?
Mr Sergio: Yes.
Ms Noble: The concern is twofold. First of all, I think litigation will be increased because now everyone will feel they have to get a lawyer or a representative to even launch an appeal. I think that will formalize the process.
Second, and possibly even more important, it could completely cut off, effectively, the right to appeal for people who do not have a facility with the written English language. They may not even be able to really read and understand a complicated decision from the board, let alone try to appeal it in writing. I think that's an extremely huge problem.
Mr Sergio: I was leading to a second question, but the time is up.
Mr David Christopherson (Hamilton Centre): Thank you very much for your presentation. As you know, we have been pressing the minister in the House to extend the hearings. We've said that she has gone back on her commitment for full, province-wide public hearings. Four afternoons in Toronto and six measly days across the province is not keeping the commitment that both Minister Jackson and Minister Witmer made in terms of full, province-wide public hearings. We've even gone so far as to ask this committee on a number of occasions to unanimously recommend to the minister that she reconsider, use the strength of all three parties here -- all of us are backbenchers -- use that leverage to put pressure on the minister to honour her commitment to have decent hearings.
I once again, Chair, seek unanimous consent to introduce a motion that would allow this committee to recommend to the minister that she extend these hearings to honour her commitment and that she further hold a meeting big enough to accommodate all the injured workers who want and need and deserve to be heard. I ask the government members to give me unanimous consent to put that motion forward today.
Ms Noble: Sounds like a good idea.
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The Vice-Chair: Mr Christopherson has the floor. He has the ability to move the motion. Is there unanimous consent? I hear a no.
Mr Christopherson: You heard the no from the government side again. I thought perhaps over the weekend some miraculous injection of fairness and democracy might haves taken place, but it hasn't. Having heard Ms Noble a number of times ask for time for the government members to respond to her very legitimate questions, to assist her in what she is doing here today, Chair, I ask you to take the remainder of whatever time I have and add it to the government's side in the hope that they'll provide some decent, adequate answers to the questions this union is asking.
Mr Sergio: Can we have a recorded vote?
The Vice-Chair: A recorded vote wasn't asked for at the time. We'll clarify this at this time. When you have the floor, you have the ability to bring a motion forward. You don't need to ask for unanimous consent. But being that you asked for unanimous consent, that was what I called for.
Mr Christopherson: Oh, fine. The last time the ruling came, I needed unanimous consent and so I sought -- but that may have been during the course of other proceedings.
The Vice-Chair: That was because it was on a point of order.
Mr Christopherson: All right. Then I'll properly put the motion as I stated it and I would ask that --
Mr Ted Arnott (Wellington): Mr Chair, on a point of order.
Mr Christopherson: Oh, get off it, Ted. I would ask that there be a recorded vote so that if you want to stand there and deny democracy, put it on the record.
Mr Arnott: On a point of order, Mr Chair: Did the member opposite not yield the floor to the government side?
The Vice-Chair: We hadn't called a member, so he still has the floor.
Ms Noble: I'd be interested in seeing how you vote.
The Vice-Chair: Can you properly bring the motion forward?
Mr Christopherson: I move that this committee recommend to the Minister of Labour that she extend the time being accorded for full, province-wide hearings so that we can get into enough communities to hear all the individuals and groups that want to be heard; and further, that there be a public meeting here in Toronto large enough to accommodate all the injured workers who deserve and have the right to be heard.
Interruption.
The Vice-Chair: I would remind you that demonstrations are not allowed.
Now that you've called the motion, is there is any debate or discussion?
Mr Arnott: I'd like to speak to the motion. Mr Christopherson has moved this issue in a previous meeting of this committee I guess last week; I think it was on Monday. He has pointed out that it was I who -- did he not, on a point of order?
Clerk of the Committee (Ms Donna Bryce): Perhaps I could clarify. Mr Christopherson tried to move the motion on a point of order. Members are not allowed to move motions on points of order. He asked for unanimous consent to move the motion. Unanimous consent was not given. Today he had the floor and he has moved the motion, so the motion was never actually moved until today.
Mr Arnott: Okay. I think the member also knows that it is the practice and the custom and the convention of the Legislature that public hearings time is determined by the three House leaders, and generally what happens is that the three House leaders come to some sort of an agreement.
Mr Christopherson: That's not what happened.
Mr Arnott: The House gives authorization to the committees to sit when the House is not in session, and there has to be a motion go through the House to allow the committees to sit, to give them specific direction to sit.
The member opposite says that's not what happened in this case, but I would like to ask a question of the clerk: Has there been a motion passed yet to determine the number of days the committee will sit when the House is not in session?
Clerk of the Committee: Yes.
Mr Arnott: So that motion has already been passed.
Clerk of the Committee: The time allocation motion allowed for six days during the recess.
Mr Christopherson: You rammed it through.
Mr Arnott: The fact is, the motion is passed so these days are now set.
Mr Christopherson: You rammed it through.
Mr Arnott: I don't think it would make much sense for us to at this point in time try to revisit that issue, because in reality it's not likely to change. On that basis, I'll be voting against Mr Christopherson's motion.
Mr Sergio: It's all fine and dandy that the Legislature has voted on it and the three House leaders have decided so at that particular time. We have, at this particular moment, a great demand. As we heard, there are more than 1,000 submissions from people who would like to make a deputation to our committee. I think it's quite appropriate and quite in order. This has been done before, where this committee has made a recommendation to go back to the House leaders.
The House sits until Thursday and there is plenty of time to have the accord and the approval of the House leaders and get the approval of the House today or tomorrow so this can be done. If the government side wants to give the nod, there is plenty of opportunity to do it until Thursday. We are not rising until Thursday, so I think it would be quite appropriate and I'm going to support the motion.
Mr Christopherson: My viewpoint and reasons for putting the motion are clear. I won't use time to debate that again. But I want to take exception with what Mr Arnott has said. Quite frankly, I'm surprised. It's out of character for him to be so far off the way things really happen. There are two ways that committee gets set. One is a negotiated agreement where a number of bills are looked at, a number of needs by all three parties, and a deal is cut and arranged, where everybody got a little bit and gave a little bit, and it goes forward and we all own that.
That didn't happen in this case. There was absolutely no agreement. In fact, we fought you tooth and nail to provide decent time for hearings and honour your minister's commitment. You ignored my House leader, my leader and myself on this issue time and again and you rammed through your time allocation that gave only a measly six days. So get off it, Ted. You own this. It's your issue. You denied injured workers. At least have the guts to own up to it.
The Vice-Chair: I call the vote.
Ayes
Christopherson, Hoy, Patten, Sergio.
Nays
Arnott, Carroll, Fisher, Galt, Maves, O'Toole, Spina.
The Vice-Chair: I declare the motion defeated.
Government members.
Mr Bart Maves (Niagara Falls): I'll go quickly. In the cases you handle of WCB recipients, how long does it take your average case to run the course and come to some sort of completion?
Ms Noble: It's hard to identify an average. It depends on what kind of a case you mean.
Mr Maves: Okay. What percentage of your cases get appealed?
Ms Noble: It's also hard to answer that, because if a case doesn't get appealed, people don't come to me for help.
Mr Maves: That's when you would get pulled into the situation.
Ms Noble: Right.
Mr Maves: My other question on that: How much time usually elapses before someone would come to you, then?
Ms Noble: That varies. You're wondering whether it would be within six months.
Mr Maves: Yes. There are time limits in other jurisdictions and there's quite a bit of complaint about time limits of handling a case, so I'm wondering.
Ms Noble: The problem is that under the proposed legislation, if for some reason -- be it inability to clearly read English or the fact that someone is in the hospital or anything like that -- the person misses their six-month appeal, the right to appeal is extinguished. That's the problem.
Mr Maves: Okay, and you can't give me any indication that if there were going to be time limits, you think six months is too short. Is there anything else that would be proper?
Ms Noble: Is there a better time limit?
Mr Maves: Yes. You've talked about time limits and removing them.
Ms Noble: The whole idea of a time limit does not fit the workers' compensation model, because what you have with workers' compensation is individuals who frequently are injured for life and issues come up that are ongoing for years.
Mr Maves: Thank you very much.
Ms Noble: What about my questions? Are you prepared to recommend removing the time limits?
The Vice-Chair: I'm sorry. We are well over time now. I thank you for your presentation.
Ms Noble: Are you over time because of the debate?
The Vice-Chair: There was 20 minutes allowed and we had used the full 20 minutes, plus the debate time.
Ms Noble: I don't think he had three minutes, though, did he?
The Vice-Chair: It was certainly three minutes. Thank you for your presentation.
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BUSINESS COUNCIL ON OCCUPATIONAL HEALTH AND SAFETY IN ONTARIO
The Vice-Chair: We'll call our next presenter, the Business Council on Occupational Health and Safety in Ontario, John Murphy.
The Chair (Mrs Brenda Elliott): Good afternoon. Welcome to the committee.
Mr John Murphy: Thank you and good afternoon. My name is John Murphy. I am the administrator of the Business Council on Occupational Health and Safety in Ontario. Joining me today is Rosa Fiorentino, who is employed by one of our member firms, Imperial Oil Ltd.
This is the first time our organization has made a submission of this nature before the committee, so I thought I would take the opportunity to tell you that the Business Council on Occupational Health and Safety in Ontario is a not-for-profit corporation that is comprised of 28 member employers who cover a diverse range of industry sectors and workplace sizes. I have enclosed as part of the submission an appendix which lists our members.
The organization was established in 1991 by its members to promote the adoption of governmental policy approaches that would more effectively protect worker health and safety while at the same time supporting economic competitiveness. With this mandate in mind, the business council has called since its inception for a variety of legislative and institutional reforms to try to create a province-wide strategy for achieving progressive reductions in accident rates.
In our prior submissions to this and previous governments, we have suggested that the key elements of this strategy would be as follows: first of all, the establishment of specific accident rate performance objectives; second, better systems province-wide for analysis of accident trends for the purposes of identifying workplaces and sectors where prevention efforts might yield the greatest benefits; third, the development of targeted intervention plans reflecting the best available information on ways and means of reducing accident rates; and ongoing implementation of these activities through a coordinated institutional strategy.
We have said that to execute this strategy it would first be necessary to restructure and better coordinate the operations of Ontario's prevention system institutions, that is, the Ministry of Labour, the Workers' Compensation Board, the safe workplace associations and the funded agencies of the Workers' Compensation Board. The goal of the exercise would be to focus each organization on a core business that supported the performance improvement strategy.
We have also said it would be necessary to establish, by law or government policy, a system of incentives and disincentives to motivate performance improvement in workplaces in need of improvement. We have also argued for less regulation and a more flexible approach to compliance for workplaces having a history of good performance in combination with exceptional occupational health and safety programs. At the same time we have also called for stiffer enforcement and prosecution of bad actors.
We recognize that the government has accepted a need to refocus its resources within the prevention system in order to achieve progressive reductions in accident rates, and that this is critical to the future success of the workers' compensation system. We also recognize that a number of significant reforms have been launched to make this a reality and we are very supportive of these reforms to date.
Given that our organization's mandate is concerned with preventive aspects of occupational health and safety public policy and not with the insurance or administrative aspects of workers' compensation policy, our purpose today is to record our support for those portions of Bill 99 that are concerned with prevention system reform and to offer recommendations for further enhancements.
Our comments today relate to the following parts of the proposed Workplace Safety and Insurance Act: part II, "Injury and Disease Prevention"; part VII, "Employers and Their Obligations"; and part XIII, "Administration of the Act."
I begin with part II. We recognize that part II establishes a new prevention mandate for the Workplace Safety and Insurance Board and enables that board to carry out a variety of prevention-related functions. It also gives the board greater control over the existing safe workplace associations as well as other board-funded agencies.
As such, we believe part II will be supportive of the emergence of occupational health and safety public policies and administrative approaches that will reduce the rates and impacts of the more prevalent occupational injuries and illnesses that are problematic in Ontario. We also believe that this type of renewed focus is long overdue. In the past, it has been our observation that occupational health and safety policy and legislation in Ontario haven't really been formulated with these specific types of improvements in mind. Similarly, resources for monitoring health and safety in the workplace and for compelling appropriate workplace prevention practices have not been deployed in a targeted manner.
It's our view that this problem has been due in part to a long-standing lack of policy level and operational coordination between the Workers' Compensation Board, the Ministry of Labour, the safe workplace associations and the funded agencies of the Workers' Compensation Board. Part II also provides a mandate for prevention driven by compensation experience and establishes some of the necessary mechanisms for better institutional coordination. For all these reasons we are strongly supportive of the provisions of part II.
Our comments in respect of part VII are limited to section 82. Section 82 empowers the board to establish experience and merit-rating programs to increase or decrease employer premiums based on the frequency of work injuries or accident costs or both.
We recognize the existence of similar provisions in the existing Workers' Compensation Act and we are aware that in recent years there has been considerable criticism of merit-rating programs due to their supposedly adverse economic impacts on the board, as well as concerns that such programs achieve their results by motivating employers to engage in inappropriate behaviours such as underreporting and coercion of employees.
This view, however, is at odds with the bulk of serious research on the topic. This including research in Ontario, supports the view that these programs promote progressive reduction in claims experience; yield long-term economic savings for the insurance carrier, in this case the Workers' Compensation Board, as well as the insured, in this case the employer; and do so, that is they achieve their outcomes, through better prevention and better claims management.
This is the case because experience rating works by providing an essential connection between accident prevention efforts at the workplace, or lack thereof, and costs of injuries and occupational illnesses. Experience rating makes workers' compensation a more controllable and more predictable cost of doing business and thereby creates an incentive for the firm to internally manage and reduce this cost through appropriate preventive and return-to-work measures. For these reasons, we consider it critical for the provisions to be preserved and enhanced in the proposed Workplace Safety and Insurance Act.
Turning finally to part XIII, our comments in respect of part XIII are limited to sections 155, 160 and 161, which pertain to the board's duties, methods of monitoring and mechanisms for accountability between the board and the minister. Again our comments are concerned principally with the prevention aspects of the bill.
We support the inclusion in section 155 of the existing statement of the duty of the board to perform the functions assigned to it by part II; the obligation placed on the board to evaluate the consequences of proposed changes in benefits, services, programs and policies; and the duty to monitor and reflect, through its services, programs and policies, new developments in the understanding of the relationship between work and the prevention of injury and occupational disease.
In the interests of greater coordination and accountability, we would also recommend two additional enhancements: First, we would propose in section 155 the inclusion of a duty on the board to prepare and make available for public examination any evaluation undertaken by the board in compliance with subsection 155(2).
Second, we would recommend the introduction in either section 155 or section 165 of a duty on the board to include within the board's annual report a discussion of its activities under subsection 155(3), and the manner by which the board has reflected new knowledge and understanding within its services, programs and policies, as well as in the performance of its functions under part II in respect of the prevention of injury and occupational disease.
We are supportive of sections 160 and 161 as mechanisms for affording greater policy level and operational coordination between the prevention-related activities of the board and the Ministry of Labour. In combination with sections 4, 6 and 7 in part II, these provisions go a significant distance towards creating a legislative structure for workplace prevention goal-setting, coordination and accountability within the province.
However, at present Bill 99 deals only with the roles of the board and, by extension, the subsidiary duties of the safe workplace associations. The bill does not, nor does any other statute at present, set out corresponding and complementary provisions relating to an overall strategy for the minister or for employers.
It's our view that a coordinated prevention strategy as per the type that Bill 99 is attempting to establish requires participation not only at the middle level of the system, that is the Workers' Compensation Board and the safe workplace associations, but also at the top of the system, by which we mean the Minister of Labour or the ministry, and at the bottom of the system, by which we mean workplaces.
In order to address this need we'd like to propose the addition of two new sections, either in the form of additions to the Workplace Safety and Insurance Act or, alternatively, in the form of amendments to the Occupational Health and Safety Act that would be given effect by section 2 of Bill 99.
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The first of these proposed additions is presented in appendix 2 to our submission. This proposed section would have the effect of requiring the minister and/or the board, depending upon the statute to which it was appended, to describe the state of the nation, as it were, of provincial occupational health and safety performance on an annual basis; set annual objectives for accident rate improvement to describe what the government and board has done to achieve this improvement; articulate plans for achieving these objectives in future; and state the rationale and justification for deciding upon the planned course of action.
Should this proposed section appear within the Occupational Health and Safety Act, it would establish a mechanism for accountability of the minister to the Legislative Assembly and thereby complement mechanisms in sections 160 and 161 of the proposed Workplace Safety and Insurance Act. In the alternative, if it were to appear in the proposed Workplace Safety and Insurance Act, it would provide greater clarity with respect to the prevention functions and responsibilities of the board. Importantly, we believe this would also inject a greater degree of empiricism and rational decision-making into a policy-making process that has for too long been shaped, in our opinion, by competing political interests as opposed to the real needs of workers.
The second of these proposed additions is presented in appendix 3 to our submission. This proposed section would best appear as section 25a of the Occupational Health and Safety Act and, again, could be affected by amendments to section 2 of the bill. If adopted, this proposed section would have the effect of requiring most employers in the province who have unsatisfactory accident rates and/or severities and/or cost performance to undertake an annual analysis of their accident problems and formulate a strategy and plan to achieve specific performance improvements. The objectives of this section would be to impose a management approach to solving the problem of excessive accidents and to tie employers into the complementary strategic planning processes which will be undertaken by the board, the safe workplace associations and, we hope, at the level of the minister.
This concludes our submission. We would like to thank the committee and members for their time.
The Chair: Thank you very much for your presentation. We have just over six minutes remaining for questioning.
Mr Christopherson: Thank you, Mr Murphy, for your presentation. I want to ask you about your comment on page 3. If I can quote from your document, at the top of the page you state, "Given that the business council's mandate is concerned with preventive aspects of occupational health and safety public policy and not with the insurance or administrative aspects of workers' compensation policy, our purpose today is to record our support for those portions of Bill 99 that are concerned with prevention system reform, and to offer recommendations for further enhancements."
Unless I missed something, and I was looking at other documents because some thoughts were going through my mind as you were speaking, I didn't hear any reference to the Occupational Disease Panel. At 5:10 today we're going to hear from a representative of the Occupational Disease Panel. If you read through their document, certainly they've got an incredibly respectable, successful record of making a difference in terms of workplace health and safety illness prevention.
Given that, and given the absence of any comment here, I wondered how you felt about the idea that the Occupational Disease Panel as it now stands is being killed and folded into the WCB, where it's expected by everyone who has any knowledge of this panel's work to become -- "less effective" is putting it too mildly; the difference between night and day. Given that you mentioned your mandate is prevention and that this is seen as a key component of preventing occupational disease and injury, I wondered how you felt about that part of Bill 99.
Mr Murphy: With respect to the characterization of the Occupational Disease Panel as having a preventive role, our observation would be that its principal role has really been in relation to compensation and benefits policy for occupational disease claimants as opposed to prevention per se. Apart from perhaps the influence of their background studies or research on specific toxic substances regulations, I can't really think of examples of where the panel has played a strongly preventive role, as opposed to a benefits policy role. As a result of that, that particular funded agency hasn't been a strong focus of our review in looking at Bill 99, so it would be difficult for me to specifically answer your question.
Mr Christopherson: I don't have a lot of time, but I would say very briefly that I think the impact here is that once claims have been legitimized and it has been determined and proven scientifically and medically that the resulting disease was caused by occupational exposure, as soon as employers are responsible for that exposure, prevention suddenly becomes a top priority because now you've made the proof, you've made the connection. I would offer to you that that's a direct result of the work the Occupational Disease Panel has done.
Ms Rosa Fiorentino: Can I just answer that, please?
The Chair: It will have to be very, very brief.
Ms Fiorentino: It's my understanding that the prevention role will continue under the board. We believe it could be done for less cost with the elimination of the added bureaucracy that existed with the Occupational Disease Panel.
Mr Christopherson: I hope you'll get a chance to stay and listen to their presentation, because I think you'll be surprised at what you hear in terms of the difference between how they're functioning now and what is likely to happen when they're killed and folded back into the WCB.
Mr Maves: Your suggestion under section 155 is basically in auditing. On page 6 of your presentation you're asking for more of an audit, "a duty on the board to include within the board's annual report a discussion of its activities." You're effectively saying you'd like to see more of an audit function done of the board's activities towards its goals.
Mr Murphy: I believe that's currently included in section 155. Let me refer you to section 155.
Mr Maves: Part of section 155 is an old duty to evaluate in the current act.
Mr Murphy: The suggestion we're making is that when the board conducts activities in compliance with its duties under section 155, specifically with respect to subsection 155(2), those evaluations would essentially be published and made available for examination, as opposed to simply being implicit in the overall policy process or operations of the board, so there is some audit trail and some system of evaluation and accountability in relation to the duty in subsection 155(2).
Mr Jack Carroll (Chatham-Kent): Thank you, Mr Murphy. As a representative of large, very successful companies, good citizens in the community, are accident and disease prevention and early return to work, first of all, important to your companies, and does Bill 99 help to promote positive movement in both those areas?
Mr Murphy: I think it's fair to say yes, they're definitely very important. We're very supportive of Bill 99 because it seeks to remedy what we've seen as a number of institutional problems in prevention in the province. There has been a real problem, we would say, in terms of the lack of coordination between the policy and enforcement activities of the Ministry of Labour, the Workers' Compensation Board and the safe workplace associations and so on. In the province, you can look at the public accounts and the various sources and come up with approximately $300 million in prevention spending every year in various ways. One of our concerns has been that we're not really seeing the sort of return we'd expect to see on $300 million in public spending on prevention, that is, the administration of prevention.
To the extent that the bill strives for greater coordination among the various agencies and forces them to really sing from the same song sheet or follow a coordinated plan, we're hopeful it will make a positive difference in terms of the overall thrust and focus of prevention efforts in the province.
Mr Sergio: Thanks for the presentation. Just quickly, I wonder if you can expand on a couple of things which I didn't see too much of in your presentation: the right to representation and the time and location as well for appeals from the appeals tribunal.
Mr Murphy: We would consider those to fall within the insurance component of the bill. We didn't come here to speak to those aspects; we came to speak specifically to the prevention system aspects.
Mr Sergio: I think they go hand in hand. You're representing some 28 major companies. How would you see it on their behalf?
Mr Murphy: It's not really within our mandate to deal with the classical workers' compensation insurance aspects. Our mandate is concerned with prevention, so we're not here to speak about those issues.
Mr Sergio: You are not prepared to comment?
Mr Murphy: It's not even part of our discussion process.
The Chair: Mr Patten, very, very briefly.
Mr Patten: In a nutshell, you're very pleased and confident the board will develop this incredible prevention program. It just says what they might do, it doesn't say what they're doing, and I don't see any indications of any resources the board is putting towards the restructuring they've done even at the moment. I don't see where there's any encouragement, but you do. Is there any evidence of what the board has done so far that tells you they really are going to be serious about the prevention side?
Mr Murphy: Could you say that again? What's the question?
Mr Patten: I'm just asking, what evidence do you have that the board is really going to be serious about the prevention side?
Mr Murphy: I don't have any evidence. I don't run the board, so I can't speak to it. I guess we're encouraged by some of the internal reorganization that's taking place in terms of establishing a prevention division and at least creating the internal resources and infrastructure that will be necessary to carry out the mandate. We're still in the early stages.
The Chair: With that, on behalf of the committee, I thank you both for coming this afternoon. We appreciate your advice.
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CANADIAN MENTAL HEALTH ASSOCIATION, ONTARIO DIVISION
The Chair: I'd now like to call upon representatives from the Canadian Mental Health Association, Ontario division, in particular Ruth Stoddart, John Kelly and Lisa McDonald.
Mr John Kelly: Good afternoon, everyone. My name is John Kelly. I am currently the past president of the board of directors of the Canadian Mental Health Association, Ontario division. I'd like to introduce to you Ms Ruth Stoddart, who is the manager of policy, planning and development, and Ms Lisa McDonald, who is currently the community mental health consultant at our provincial office.
The Canadian Mental Health Association, CMHA, Ontario division, is an incorporated, registered, non-profit charitable organization chartered in 1952. Over 4,000 volunteers are active in direct, board and committee service in a network of 36 branches located in communities throughout the province. Ontario division and branch services include education, advocacy and a range of direct services focused on persons with mental health problems and their families. Our organization receives funding from government grants, local United Ways and supplementary fund-raising activities.
CMHA, Ontario division, has had significant involvement with income maintenance issues as they impact on persons with mental health problems: consumers/survivors. We have, for example, developed policy positions regarding a variety of social assistance and employment issues.
With respect to workers' compensation in particular, we made a submission to the Royal Commission on Workers' Compensation regarding Ontario's system of workers' compensation in May 1995 and a submission to the Honourable Cameron Jackson, then minister without portfolio responsible for WCB reform, regarding the discussion paper New Directions for Workers' Compensation Reform in February 1996. Subsequent to our presentation to the Honourable Cameron Jackson, we were invited to submit our ideas regarding the possible linkages between workers' compensation and workplace health and safety issues, which we did in April 1996.
While the Canadian Mental Health Association, Ontario division, is pleased to have the opportunity to respond to the proposed Workplace Safety and Insurance Act, 1996, we are dismayed that all the issues and concerns raised in our previous submission must be reiterated. The concerns raised by our organization in previous consultations regarding workers' compensation reform are not addressed in the proposed new legislation, Bill 99. We will focus our submission on the issues most relevant to our area of expertise, that is, the compensability of psychological disabilities. I'll turn it over to Lisa.
Ms Lisa McDonald: The most serious concern of the CMHA, Ontario division, pertains to part III, section 12, of Bill 99, which sets out the circumstances in which workers are entitled to benefits for mental stress. Specifically, subsection (5) makes it clear that a worker is not entitled to benefits for mental stress under the insurance plan unless the mental stress "is an acute reaction to a sudden and unexpected traumatic event arising in the course of his or her employment." Further, a "worker is not entitled to benefits for mental stress caused by his or her employer's decisions or actions relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment."
Under existing legislation, a stress claim is a claim for workers' compensation based on a psychological disability caused by some stressful condition in the workplace. This is to be distinguished from those claims that are made for psychological disability caused by stressful conditions in the workplace which are ongoing and long-term. For example, the board currently compensates injured workers for psychological disability caused by a work-related physical injury, for example, an acute emotional reaction to an accident, the disability itself or the treatment of the physical disability; or psychological disability caused by an acute stressor that could be described as a "chance event." Here the connection to the workplace must be established and the stressor must be determined to be sudden, shocking and life-threatening.
The Workers' Compensation Board, as it currently operates, does not typically consider compensable chronic stress claims despite the fact that in community consultations regarding compensability it was generally agreed that the definition of disablement in the Workers' Compensation Act would allow compensation for such claims. Specifically, it was concluded that these claims could be considered to be disablement arising out of and in the course of employment under the definition of "accident," given that there is nothing in the act to suggest that personal injury can only be physical in nature and the definition of "accident" is sufficiently broad to include a condition that emerges gradually.
The introduction of Bill 99 would completely eliminate the possibility that chronic stress would be compensated under workers' compensation. Even though claims for compensation for psychological disability alone have not often been made in the existing system, because the board does not accept them, there have been a number of cases where psychological disability claimants who have been refused compensation have appealed the decision of the board and been granted compensation.
The first of these decisions was decision 918 of the Workers' Compensation Appeals Tribunal, which granted compensation for chronic stress. The CMHA, Ontario division, believes that such psychological stress claims should be treated in the same way as claims for physical disability. The proposed Workplace Safety and Insurance Act is in opposition to this direction. Under the proposed legislation, psychological disability claims not arising from a traumatic event are not to be considered at all.
We urge this committee once again to recognize chronic stress claims as included in the board's own policy proposal. In reviewing a recent claim, the appeals tribunal stated that there were no statutory grounds to entitle an adjudicator to treat a stress claim differently from any other kind of claim heard by the Workers' Compensation Board.
We believe strongly in the need for legislation that accepts that workplace stressors can and do cause psychological disability. As long as this concept is ignored, most people who suffer from psychological disability directly related to stressors in the workplace will be forced to rely on unemployment insurance, social assistance, long-term disability insurance or other government-funded, disability-related programs. The result is that costs are simply transferred from one compensation system to another.
We recognize that in the current economic climate, government is attempting to contain costs of programs such as workers' compensation. However, we believe that limiting compensation claims to exclude those arising from workplace stressors is not appropriate. We stated in our 1996 submission regarding New Directions for Workers' Compensation Reform that we were particularly concerned about one approach discussed, which was allowing for the blanket exclusion of certain injuries or disabilities. It would seem that our concern was well founded, given that that is exactly what is being proposed in Bill 99 a little over a year later.
The CMHA, Ontario division, is very strongly opposed to the idea that government could discriminate in such a way with respect to certain disabilities in what we view as an attempt to increase the predictability of costs. This is especially inappropriate, given what is known about the relationship between workplace stress and disability. In a submission to the Workers' Compensation Board by the Ontario Psychological Association, it was noted that "there is a large body of scientific evidence to support the hypothesis that factors within the work environment, in interaction in an ongoing and dynamic manner with individual vulnerabilities, can directly impact upon and impair psychological functioning to the point of producing an identifiable disability."
The second area of concern regarding Bill 99 which we'd like to discuss today pertains to the prevention of disability resulting from workplace stress. While one of the stated purposes of Bill 99 is "[t]o promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases," it would appear that this does not include the promotion of mental health, nor the prevention of psychological disability arising from stressors in the workplace. This is very discouraging, given that a nationwide survey conducted by CMHA, national office, found that 60% of the workers studied reported they had experienced negative stress at work within the previous year, 35% reported adverse psychological effects and 11% reported adverse physical effects.
There is great potential for mental health promotion and prevention of psychological disability resulting from unhealthy work environments. One reason for this is that there is a great deal of literature describing the particular stressors in the workplace that may lead to disability. For example, factors such as time pressure, responsibility without authority, negative work environment, job content, interpersonal conflicts, discrimination, harassment, relocation and lack of proper training and orientation have been shown to initiate stressful working conditions.
Just as employers are held responsible for rectifying conditions which lead to physical injury, so too should employers take steps to eliminate known workplace stressors. In a letter to the Honourable Cameron Jackson in April 1996, we argued that what is currently lacking are a broad-scope, systematic process and supporting structure to provide training to managers and workers concerning how workplace stress affects individuals and how these sources of stress can be reduced. We strongly recommended the development of such a comprehensive program and offered our assistance in the development of such a concept. The direction of the proposed legislation does not even acknowledge mental stress in the workplace except in the case of traumatic events, so it would seem than none of the suggestions of the CMHA, Ontario division, including those pertaining to mental health promotion and the reduction of workplace stressors, have been considered.
Nevertheless, we continue to recommend this proactive approach, which we believe would be beneficial to both employee and employer. It is acknowledged that employers are concerned about the rising costs of workers' compensation. During consultation of the WCB's Policy Proposal: Compensation for Disablements Arising from Workplace Stressors, some employers felt that the inclusion of long-term stress claims as compensable would result in an overwhelming number of such claims being made. It should be recognized, however, that workplace stress is already costing employers in the form of reduced productivity and days lost for illness. It has been estimated that depression alone affects one in 10 employees in the US, and the cost to society and business is almost $27 billion annually.
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Ms Ruth Stoddart: I'd like to speak a bit about people returning to work and rehabilitation of injured workers. The CMHA, Ontario division, has repeatedly said in submissions regarding workers' compensation and other pieces of legislation that many people with disabilities, including people with mental illnesses, want to work, but they face many barriers to employment that aren't experienced by the population at large. We have several concerns regarding this issue with Bill 99 and believe that any kind of rehabilitation system within workers' compensation should focus on assisting injured workers to return to work.
The first concern we have with Bill 99 has to do with the so-called labour market re-entry plans. These are stated in subsection 42(4), as providing "for such steps as may be required to enable the worker to re-enter the labour market and to reduce or eliminate his or her loss of earnings from the injury." To us, this seems merely an effort to reduce the amount of money that workers' comp is putting out, not any attempt at rehabilitating an injured worker.
The second concern we have with the labour market re-entry plans is that the board is to decide whether a plan should be developed for a particular worker and it's only required to consult with a worker in preparing the plans. Our organization is very concerned about this, because conceivably a plan could be developed without any input at all from the worker and could end up being some sort of job re-entry or retraining plan which the worker is unwilling and/or unable to participate in.
Associated with this concern is the fact that we believe people need to recognize that situations exist where the workplace has actually caused a person's psychological disability and that any kind of return to the workplace is probably not the best option for that individual. In that case, we believe that a person should be prepared for some sort of alternative employment and/or should be provided accommodations while in the workplace.
In conclusion, I'd like to make three points. The first is the need for workers' comp legislation to include any kinds of psychological disabilities that arise from workplace stressors as legitimate claims. We're very concerned about the apparent discrimination in Bill 99 on the basis of type of disability. A recent case was decided by the Supreme Court of Canada, which was Battlefords and District Co-operative Ltd v Gibbs. It came out of Saskatchewan and had to do with a private insurance plan, and consequently the charter didn't apply to that case, but I think one of the statements made by the court is very applicable here. This had to do with a person who had a mental disability who had been denied compensation she would have received had her disability been physical. They were talking about the restrictions on the plan, and the court said: "...discontinues the benefits to the mentally disabled..., yet there is no such restriction on benefits available to the physically disabled. Consequently, the insurance plan provided by the appellant employer in the present case discriminates on the basis of disability."
The CMHA, Ontario division, believes that the proposed subsection 12(4) of Bill 99 will do exactly this by denying compensation for chronic stress claims and will probably be open to a fairly rapid charter challenge should Bill 99 proceed as it is.
Second, we'd like to emphasize the need for legislation to include both mental health promotion and prevention of stress-related psychological disabilities in the workplace; and finally, the need for a focus on rehabilitation between the workers' compensation system and the recognition that people both want to work and are willing to work.
The Chair: We have one minute per caucus remaining. Generally when we have such a short period of time remaining, we send it to one caucus only for questioning. In this case, it would go to the NDP caucus.
Mr Christopherson: Thank you very much for your submission. As you may know, we heard from ARCH last week, and they made an excellent presentation, hammering home the same message as you have.
I want to pick up on a couple of the comments you make on page 3, where you talk about the fact that workplace stressors can and do cause psychological disability. You also go on to say that those "who suffer from psychological disability" as a result of workplace stressors then go on to systems such as "unemployment insurance, social assistance, long-term disability insurance or other government-funded" -- I want to emphasize that point. Every one of those systems that people end up on if they can't qualify for WCB is paid for by taxpayers. One of the most important messages we have to get through during these hearings is that WCB is not taxpayer money, it's not taxpayer debt; it's debt that employers owe. These are premiums paid by employers because workers can't sue employers. That's crucial. People believe the unfunded liability is taxpayers' debt; it's not. When people don't get WCB, all the health care costs and support costs are on the part of the taxpayer, and the employers, who are responsible for WCB, don't pay. I appreciate your emphasizing that, because it's an important civics lesson for the public in terms of understanding the issues we are grappling with.
You talk about workplace stressors, and on page 4 you outline some of them in a very general way. Can you give a couple of regular, down-to-earth, everyday examples that anyone could run into that, if not stopped or corrected or checked, could lead to the kind of disability that would force one off the job through no fault of their own?
Ms McDonald: I will just say that I wouldn't want to identify one stressor that could lead to a particular psychological disability, because the research is quite complicated in that regard, but there is much research that indicates that those general ones we talked about are factors. There are many identifiable factors that we know contribute to psychological disability, those being some of them. Some of them are very specific: harassment on the job or working conditions being such that the person has little control over their environment, that kind of thing. Again, I wouldn't want to just tie a specific stressor to --
Mr Christopherson: No, I wasn't seeking to do that. I was just asking so that people watching, because this is being televised across the province, could understand one example of how ordinary working persons could find themselves facing workplace stressors to the point where they could cause a legitimate workplace disability claim. Pick any occupation and give me an example.
Ms McDonald: It can apply to any occupation; that's the first point. Let's take your job, for example, then.
Mr Christopherson: The Tories drive me crazy, so --
Ms McDonald: If you were experiencing a stressor that you could not get addressed in your job through the normal channels you would go to -- I don't know what those are for you -- and it continued to be a problem that wasn't addressed at your workplace, you could conceivably go on to develop a depression as a result of that. I'm not saying there may not already be a vulnerability to depression, let's say, but many of us have vulnerabilities to all kinds of disabilities. We may not express those because we're not exposed to the stressors that are necessary for them to become full-fledged. If it's not addressed and you continue to experience workplace stress, and you have to go to work every day, and you have to do that because you have to make a living, then that could conceivably lead, for example, to a depression.
. Mr Christopherson: I appreciate very much your raising this, and I assure you we'll continue to raise it at every opportunity across the province. Hopefully, maybe the government members will be listening and will recommend a change to the minister.
The Chair: That concludes the presentation time. Thank you, on behalf of the members of the committee, for taking the time to come this afternoon. We appreciate it.
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CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1750
The Chair: I'd like to call now on representatives from the Canadian Union of Public Employees, Local 1750, Mr Simourd and Mr Ryan. Welcome. You can begin at any time. You can introduce yourselves for Hansard if you wish.
Mr Sid Ryan: My name is Sid Ryan. I'm the president of CUPE Ontario. I'm here today with Paul Simourd, who is the president of Local 1750. Paul and I are sharing the presentation today because I'm one of the more than 1,200 applicants who have not been given an opportunity to make a presentation, even though CUPE is the largest union in this province, with 180,000 members, 3,500 of them in Local 1750.
Today I'm going to present one of the topic areas, and Paul, because of his expertise working at the Workers' Compensation Board, is going to give us the expert's opinion in terms of what's actually happening at the Workers' Compensation Board on a daily basis.
I'd like to deal with the issue of the requirement for workers to apply for compensation. That requirement will without question help make Ontario statistically safer, but this will only be because claims will be suppressed and hidden. Our union will do everything in its power to ensure that our members are not coerced into not filing a WCB claim when injured on the job, but it will undoubtedly happen to non-unionized workers who do not have the protection of a union.
When claims are not filed, employers save money, but workers and taxpayers lose. The workers don't get the compensation they deserve and taxpayers foot the bill for medical expenses and social services costs. Paul will give us some examples of how this will happen.
Mr Paul Simourd: As an employee of the board for the last 10 years, I have been faced with situations where myself and those people I've been training as adjudicators have had to deal with workers who have called the board saying that if they chose to claim workers' compensation, they would be fired.
I remember very well speaking to one young man who went on about the difficulty of getting a job. He told me very plainly: "If I claim, my employer will fire me. If I don't claim, the employer will allow me to claim unemployment insurance without objection." We discussed the situation for a while and I was able to tell him that if he didn't want to initiate the claim, he could have the claim initiated by his doctor and could claim that he didn't know anything about it because the doctor filed the form and initiated the claim.
Unfortunately, this appears not to be an option in Bill 99. Under Bill 99 in this provision, workers will suffer and taxpayers will have to pay for their suffering.
Mr Ryan: Dealing with the benefit indexing formula: Bill 99 will increase the financial distress of the families of injured workers through increased de-indexation under section 49 of the act. It is important to remember that workers are the breadwinners for their families, in many cases the only breadwinner. When workers lose the ability to earn full wages because of a workplace accident, it is not only they who suffer but also their families.
The erosion of indexation of benefits by Bill 99 will, slowly but surely, cause the families of those injured on the job to suffer. What is particularly distressing about this is that it will be a gradual, insidious process.
In the first year or two after an injury, the family will find itself possibly able to cope with the slight erosion of their income due to de-indexation. The loss of the extra 5% of net earnings caused by Bill 99 will take the blame for the family's change in circumstances. The full effects of de-indexation won't start to be felt for probably three or four years, when the family notices that despite learning to live with the original loss of earnings, they are having more and more trouble meeting their commitments. After 10 years, the loss to any family with a significant wage loss will likely be causing great distress. After 20 or 30 years, the effects could easily be the difference between being financially independent and requiring welfare.
Mr Simourd: The effect of this change really becomes clear when you put a human face to it. This is a face that may not be easy for people in this room to put on it; unfortunately, it's very easy for me. I remember all too well handling a case like this. As a pensions adjudicator at the board, I dealt with some very old claims: people who had been injured before regular indexation was part of the act.
The case I remember involved a family man who, despite a serious injury that ended in his being awarded a pension, a permanent disability award of approximately 60%, was able to return to work at a wage loss. Despite daily suffering, this man amazed his employer by continuing to work a modified job for over 25 years. Ultimately, he was unable to continue, and he came back to the board and went on full benefits. He started on vocational rehabilitation in an attempt to return to another suitable modified job, but he reached the point where he had returned to his pension level, his permanent disability level. At that point, the act called upon him to be paid based on his pre-injury earnings, which had not been fully indexed. For this man, it meant that his family income dropped from approximately $2,600 per month to less than $900 per month. As the pensions adjudicator handling the case, I was left to try to explain to this man and his wife that this was all the law allowed.
Bill 99 will help create many more Bobs, and the employees of the WCB I represent will be left to explain this family tragedy. No doubt some of these families will be the families of the workers we represent, workers injured while working for the new Workplace Safety and Insurance Board.
Ultimately, it's going to be the taxpayers of the province who will pay, because like Bob's family, they will be forced to rely on social assistance to live, assistance paid for by taxpayers, not by the employers of the province.
Mr Ryan: I'd like to deal with the question of availability in section 43. Under the current act, when the WCB calculates a future economic loss award, it must consider what a worker could earn from suitable and available work. This means not only that the injured worker must be physically able to do the work, the job must also be available within the job search area. This provision removes the possibility of the WCB penalizing workers by deducting from their benefits earnings from phantom jobs that do not exist. Removing availability from the equation opens up the possibility of the board being criticized as completely unfair and reducing workers' benefits because of a job that does not even exist in a worker's area. Paul will give us an example of that.
Mr Simourd: Sitting here today, I'm not only a union representative but an administrator. There is no question in my mind that administering the proposed wording in Bill 99 would be much simpler for the board. Not having to prove or even consider whether a job is actually available will be much easier than the current requirements of the legislation.
The employees of the board, members of our local, are not just administrators, they are people. As I've told many people, the employees of the board are concerned members of the community. None of them enjoys seeing people suffer. Reducing workers' benefits is without question part of the job of a board employee; unfairly reducing workers' benefits is not. It's important to our members that the law they administer can be considered just. Removing the requirement for work to be both suitable and available before it can be used in a decision to reduce benefits will not be perceived as fair and will in the end be morally difficult to administer. If there are problems in administering payment of benefits, this isn't the way to fix them. We need fair legislation.
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Mr Ryan: We're going to deal with the issue of the privatization of voc rehab, probably the most important issue for CUPE members who work at the Workers' Compensation Board. Part V of the new act vaguely outlines how injured workers ought to be provided assistance returning to work, leaving most meaningful aspects of the application to the board. What is clear from this section and the reorganization going on at the Workers' Compensation Board is that the provision of vocational rehabilitation services is being privatized. Without a doubt our members are concerned about losing their jobs. The 424 voc rehab case workers at the board have been concerned about their ability to support themselves and their families since this legislation was introduced. They know that if they end up unemployed, no one will benefit.
What has also greatly concerned them is the unsubstantiated attack on their professionalism by the minister. We have heard her say that money spent on voc rehab has been wasted and their services described as ineffective. What we have not heard are any stats or tests that show private companies can do a better job than the public delivery of the service.
Paul wants to elaborate on what's going on at the Workers' Compensation Board respecting reorganization.
Mr Simourd: The case workers I represent want me to clearly state that they're proud of the job they do. They know they do the job as well as anyone or any company can, given the tools they have. Each and every case worker could provide the names and case histories of dozens, even hundreds, of workers and employers who are better off today because of the work done by them. Unfortunately, no one wants to hear about success stories when privatization is on the agenda.
Enough, though, about our personal concerns. I'd like to take a minute to look at it from the perspective of others. I'll begin with employers. This committee has already heard from employer groups who are concerned that they'll have to divert attention from their true business to vocational rehabilitation. This is particularly true for small business and medium-sized businesses. Employers will face additional costs for private companies doing the job the board case workers currently do. Employers face a potential of increased workplace conflict over return-to-work issues currently dealt with by independent board case workers.
I personally have been present when employers who are extremely happy with the service they're provided have told the chair of the board that they don't want to lose them. In fact, certain employers told me during a presentation of the chair's that I should be making sure to tell the chair that they didn't want to lose the valuable service we provide. I suggested that they speak to the chair personally to reinforce this message. The privatization of vocational rehabilitation is bad news for almost all employers in this province.
Workers: Workers need assistance in returning to work and they want that assistance to be independent from their employers. Nothing can replace the reassurance of having an unbiased party overseeing a return to work after an injury. Workers often see their employers as all-powerful and they can sometimes be coerced into returning to work too early. With current experience rating programs, it's an all-too-familiar story: The board employees are receiving calls earlier and earlier in the claims, often the first day that somebody is off, attempting to return somebody to work. Board-employed case workers can ensure that return to work occurs when it's supposed to.
Sometimes workers hesitant to return to work after an injury need a little push and some support to return to work. Independent board case workers can provide both, while an employer-paid company will always be seen as biased. Time and again, board case workers are called upon to arrange for return to work and their reassurance to injured workers aids employers in getting back to work. That reassurance is meaningful because they are independent.
Finally, the taxpayers: The Workers' Compensation Board is funded entirely by employers. Currently, no tax dollars go into the Workers' Compensation Board. If workers are forced off benefits because of information inaccurately provided by private rehabilitation companies or if their benefits are inappropriately reduced, the workers will be forced on to taxpayer-funded social services. Usually this means unemployment insurance first and later welfare.
The entire change is based on the government's idea that workers and employers should more directly take responsibility for return to work. This is a good idea but it won't work. To prove it, you don't have to look any further than the board itself. Return to work at the board is most often a nightmare for both the employer and employees. This is despite union efforts to develop a return-to-work plan first jointly and then independently and provide it to our employer. It's also despite the efforts of certain of our executives who have recently renewed their commitment to develop an adequate return-to-work program.
The board prides itself on being a leader in health and safety, and yet we have difficulty with this issue with the staff we have and the skills they have. I want to make it clear that I don't raise this to embarrass the Workers' Compensation Board. I'm proud to work at the Workers' Compensation Board, but I raise it to illustrate that return to work is more complicated than it seems, and employers and workers in this province need further development before they're ready to handle it on their own.
Ontario needs independent vocational rehabilitation. We should stop the privatization.
Mr Ryan: I'd like to conclude by saying that clearly privatized vocational rehabilitation serves almost no one well in this province. I say "almost no one" because it does serve two groups well: (1) the large rehabilitation companies such as the ones controlled by insurance companies that desperately want a piece of the $2.5-billion-per-year compensation system as well as a foot in the door for US-style managed care; and (2) large employers who can afford to pay private rehabilitation companies to force workers back to work too soon or to unsuitable jobs or who can find phantom jobs that no longer need to be available.
Clearly, I must ask the question: Is this another gift from the Harris government to its corporate friends? In our opinion, it's the beginning of the parcelling up of the Workers' Compensation Board to hand off to the huge multinational insurance companies. It is the end of an independent compensation system and the beginning of a private system where private companies profit from the personal tragedies of working people around this province.
With that, we'd like to conclude our presentation.
The Chair: Thank you very much. With the limited time remaining we'll only go to questions for the PC caucus.
Mr John O'Toole (Durham East): Thank you for your presentation today, Mr Simourd and Mr Ryan. From my world of work I'm questioning, and I suspect, the way you talked about your classifications at your place of work, that the return-to-work provision was a difficulty, an unsuccessful attempt at somehow finding -- can you come up with any suggestions on improving? There's much evidence to support the fact that, I'm sure -- you work in the field -- the early return to work is preferable if you can solve the little problems. Is that your view as well, working in the field as a professional, that early return to work is part of the treatment itself?
Mr Simourd: I would say that early return to work is critical. It makes a big difference to the employer as well as to the workers of the province and we need to ensure they have the assistance necessary to make sure that happens.
Mr O'Toole: What do the workplace parties, that's the individual with the particular problem and also, if they're represented, the management -- is there some formula that you think may work better than others? I'm thinking more of an industrial workplace where there's not a lot of differentiation between jobs. Quite often I found seniority was one of the problems. A lighter-duty job quite often represents a higher seniority. Is there anything that could be done there in a positive working relationship?
Mr Simourd: The board currently has modified work program specialists who get involved in negotiating return-to-work programs with employers and with the unions, oftentimes getting a commitment from both parties to make sure the return to work occurs successfully. We need to continue that type of initiative.
Mr Maves: Thank you both very much for your presentation. One of the comments made right at the end that caught my eye was, "Return to work is a nightmare for employers and employees currently." Then you said that before we get into the return-to-work system characterized by Bill 99, employers need further development. What type of development are you talking about?
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Mr Simourd: I think there should be further assistance, an additional opportunity for board staff to help create programs and perhaps initiatives that would assist employers further in developing sound return-to-work tools that serve both the employers and the injured workers well. I think that to make that happen, you need to have somebody who is perceived as unbiased who will, whether it's for a worker or an employer, argue to ensure that there is fairness and negotiate a fair return to work.
Mr Maves: With this new emphasis on return to work, is that not more likely to occur now at the WCB?
Mr Simourd: You say "new emphasis," and I certainly don't think there is really a new emphasis. I'm a training specialist at the board in my regular job. We have been training people for several years now to emphasize return to work from the first day. Virtually, an entitlement adjudicator who first receives the claim starts to consider return to work, and wherever there's a difficulty they hand it off to a professional case worker who gets involved to assist in that return to work. I wouldn't say it's new. It's been an initiative that's been pushed for some time at the board and is working quite satisfactorily, I think, for many employers.
The Chair: Thank you very much, gentlemen. On behalf of the members of the committee, we appreciate and thank you for your time this afternoon and your attention to this bill.
MEDICAL REFORM GROUP
The Chair: I'd like to call now upon a representative from the Medical Reform Group. Dr Ted Haines, welcome to the committee this afternoon.
Dr Ted Haines: The Medical Reform Group is a group of 200 doctors as well as medical students in Ontario. If you want to know more about the Medical Reform Group, I'll tell you later.
We've been active on a number of health and social justice issues. I have some cue cards which are probably mainly for my benefit, but maybe I'll just show them around. In April 1996, the MRG wrote to Cam Jackson with our comments on developing compensation legislation, and then we wrote to the Minister of Labour in October 1996. Cam Jackson wrote us back a short, nice note that didn't really say much.
Mr O'Toole: Pardon me, Chair, is there a handout?
The Chair: Dr Haines, do you have a handout for the members of the committee?
Dr Ted Haines: I'll get to that in a second, if I may.
The minister wrote back to us in February this year. I have a copy of her letter for you as well as a copy of our correspondence to the minister and to Cam Jackson. She expressed her appreciation and she said that she took the liberty of forwarding our letter to Mr Michael O'Keefe, the president of the Workers' Compensation Board, for his information and she expected that the board would also be interested in our valuable suggestions regarding the return-to-work process.
In our letters to Cam Jackson and the minister we had said we had a lot of experience and would be quite glad to sit down and talk about how we thought the compensation system could be made more effective and how return to work could be made more effective. In her response she indicated that she had passed this on to Mr Michael O'Keefe. On June 12, Michael O'Keefe sent something to the stakeholders, which I received from another stakeholder on June 19, and today is June 23, therefore I do not have a handout. I don't consider that serious consultation with the Medical Reform Group. Now we're quite glad to continue working with you folks.
To get to some of the content of the proposed legislation, one of the points we've been making is that the minister and Cam Jackson talk a lot about prevention, but when you turn the bill upside down, sideways and back and forth, I can't find anything in it that talks specifically about concrete ways of reducing hazards in the workplace. Tell me if you can.
With respect to the impact on medical practice, it looks like nurse case managers are going to be telling doctors how to diagnose and treat. That's the way it appears. In our correspondence with the minister we pointed out a project funded by the Workers' Compensation Board called the Physician Education Project in Workplace Health. We had found, and this is no surprise, that with respect to dealing with workers' compensation problems in patients, doctors feel as if they have no skills, they feel inconvenienced, they feel ethically ill at ease, they don't know whom they're serving and they feel like they're spending too much time for too little bucks.
In the context of the various things that are happening in the doctor's office, I don't know that a lot of preparation is going on to help doctors help patients with work-related problems better. I don't get that impression at all. If nurse case managers are going to be telling doctors how to diagnose and treat, without some preparation for whatever advantages nurse case managers can offer, they're not going to be happy. They're not happy already in many ways, as you know.
As of 1997, patients are going to have usual recovery times. This means that if you have a tennis elbow, you will have recovered, on average, by a certain date. It appears the Workers' Compensation Board is going to establish usual recovery times for Ontario over the course of the summer. Folks, this is very difficult to do.
Pam Hudak and Donald Cole, who work for the Institute for Work and Health, and I wrote a paper, and published last, year on prognosis in lateral elbow pain, most of which is tennis elbow and most of which is not caused by tennis. When you look at the quality of the papers, after you very thoroughly search the literature you find hardly any that are of good enough quality to analyse, and then you don't find very many that follow people up for very long.
A couple of weeks ago I was the tutor for family medicine for a North America-wide workshop held annually at McMaster called Evidence-Based Medicine. I'm a family doctor as well as a specialist in occupational medicine and also community medicine. They were here for a week. You may know that McMaster holds a certain expertise in this area. There are criteria for evaluating papers on recovery or prognosis and it's important that they be carefully followed. I don't know how the WCB can do that carefully for all the conditions of concern in a few weeks.
With respect to the business of function abilities evaluation, can doctors do it? Doctors do the best they can. We're asked to do it all the time. It's partly a problem that we don't have much experience, on average. We've never been taught, certainly not in medical school. The other part is, you can't tell that much from doing a history and physical examination. That's why occupational therapists are a very important part of the occupational health team.
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If we're asked, as it appears we're going to be asked, then the Medical Reform Group is going to advise doctors to bring their patients in. If they get a form in the mail, which I just saw last Friday for the first time, saying, "We want this filled out" -- it comes to the employer -- then if you're going to do any quality job, you're going to have to bring the patient in. In fact, it looks like Michael O'Keefe in his covering letter says that would be the ideal situation, as I understand it, so then Michael O'Keefe and we are in agreement. If it's a question of the family doctor documenting the functional abilities, then the doctor should bring the patient in.
There's been a murky area around consent on this, as we understand it. Doctors are very nervous about this. We don't want to consent to transfer of medical information to anybody other than the patient without very clear written consent. If we bring the patient in to fill out the form, we'll get it at that time. This brings up the question, if Michael O'Keefe and we are in agreement, then is this consent procedure that is proposed really necessary? It appears the worker is being asked to sign for the consent of that release of information at the very beginning of the claim. That seems to make a lot of people nervous. Do we really have to do that?
A couple of quick notes on evidence-based medicine: The first question is, are the recommendations valid? You determine that by following a number of rules, and it becomes a skill to do that. Then you determine whether the evidence is valid. That's what we taught family doctors and specialists from across North America how to teach this past week. There is one guideline on setting up practice guidelines. There are also guidelines for evaluating studies on prognosis, for example. I have five copies of this.
When you start talking about "usual recovery times" and the "typical" patient, you may run the risk of disregarding another important feature of evidence-based medicine. Not just (1) is the evidence provided valid, which is actually very challenging to determine; it's also, (2) will the recommendations help you in caring for your patients? This patient may not be a usual patient, may not be an average patient; it's the patient who is in front of you who needs help. It's not going to be very helpful for us to have cookie-cutter recommendations.
I also have an example of a bad practice guideline that one of the family doctors from Utah brought along and said, "Here's one we use at our hospital." It happens to be on how to evaluate infants with fever. Let's go through it. The group concluded it was a bad guideline. Let me tell you part of their methods.
"The first author selected an expert panel composed of senior full-time academic faculty with nationally recognized expertise in paediatrics and infectious diseases or emergency medicine. There was one meeting of the panel with the goal of reaching a consensus regarding answers to the questions concerning clinical treatment of febrile children. Before the meeting, each panel member was provided with a copy of the complete bibliography, the draft management algorithm, each clinical question, the evidence tables and selected references, and one or more suggested management strategies pertaining to each question. Each panel member was asked to review the material as well as any other information they might have pertaining to the questions of interest and to formulate an answer to each question before the panel meeting. At the time of the panel meeting, we attempted to reach a consensus regarding appropriate management strategies. When we could not, we proposed alternative management strategies. The draft practice guidelines were circulated in the form of a manuscript to all panel members for their review. The guidelines were revised and again circulated to the panel for comments, which were incorporated into the final practice guidelines."
A lot of experts got together, were circulated stuff, literature, got back together and stuff was revised. Point number one, they relied on consensus; point number two, in the actual recommendations that came out in that particular practice guideline they disregarded the evidence. It was another family doctor who pointed this out in our group.
Preparing practice guidelines is difficult. It takes time. I'm going to circulate that particular one for your consideration. I'll stop there.
Mr O'Toole: Thank you for a very interesting presentation. I gather from your presentation you are a medical doctor.
Dr Haines: I said I was a family physician, an occupational medicine specialist, clinical and a community medicine specialist.
Mr O'Toole: That's good. I'm kind of interested in the "functional abilities" comments you made. The form that was put out for everyone to see is this form here. That in your view is going to be what the employer receives, this "functional abilities" form, right?
Dr Haines: I got that on Thursday and I haven't had much chance to look at it, but it was my understanding that it would arrive in the family doctor's office, I'm not sure how.
Mr O'Toole: My point is that in the workplaces I'm familiar with today, it's quite common to get the workplace restrictions given to the management to make sure they try to accommodate the individual replacement, like no lifting over 30 pounds or overhead work. Do you think that in the return to work in section 5 -- this is an important part -- doctors like yourself who are trained as occupational specialists could be able to guide the safe return to work without it being medical information? I'm opposed to its being medically sensitive information, but I think the workplace parties need to know if there are weight restrictions, twisting, bending, lifting, all those kinds of things.
Dr Haines: Doctors have been involved in return-to-work situations and I think they probably should still be involved. They're generally trusted by their patients and I think they have a lot to offer. I think their role is being undermined somewhat at this stage. So yes, workplaces need good information on what workers can and can't do.
Mr Carroll: You made reference to the fact that you didn't see anything in this about prevention. Are you familiar with sections 6 and 7 of the act?
Dr Haines: Are you going to read them to me now?
Mr Carroll: No, I just asked you. You said you didn't see anything in here about prevention. I just wondered whether or not you'd read sections 6 and 7.
Dr Haines: Yes, I believe I have. Is there something I missed?
Mr Carroll: Section 6 deals specifically with the establishment of safe workplace associations, medical clinics, training centres and establishment of standards. Section 7 deals with them being funded by the board. I don't understand your comment about there being nothing in here about prevention.
Dr Haines: I'm talking about specific strategies to reduce hazards.
Mr Carroll: You don't believe these are?
Dr Haines: No, I don't.
Mr Carroll: Interesting. Thank you.
Mr Pat Hoy (Essex-Kent): Thank you for your presentation this afternoon. I too had noted a previous person who came here talking about usual recovery times and how that is going to happen here in Ontario. For instance I know of someone -- it wasn't a workplace injury, but none the less in the hospital they said, "You'll be out Thursday," and they came out on Saturday. So it's hard to predict an individual's reaction to certain circumstances. I can understand that full well.
Would you say that these particular injuries that are causing one to perhaps not be able to continue to work would be characterized as unusual rather than the usual type of injury you might see?
Dr Haines: Would you mind repeating that question, the last part?
Mr Hoy: Would you characterize the cases that may come to a physician or a family doctor like yourself as unusual by the fact that they can no longer go to work or feel that they cannot, and therefore it might be even more difficult to say what the "usual" recovery rate would be?
Dr Haines: In the literature on tennis elbow there are maybe three papers out of a hundred that have good enough methods for us to be able to say anything. One of them follows people for about 10 weeks and a couple follow them for longer. They have somewhat different methods, so when you start to look at the details of the literature, it's very poor. We don't have much sound information on which to base estimates of usual recovery. It so happens that people do vary in their times of recovery.
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Mr Christopherson: Thank you, doctor, for your presentation. Certainly I can appreciate your frustration at the lack of adequate time to give meaningful input. If it's any comfort at all, you're not alone. Just about everybody, other than friends of the government, who wants an opportunity to have meaningful input is not getting it.
I want to focus a little on the usual recovery time. You've put a great deal of emphasis on that and I appreciate that, because I think this is an important restriction that people need to understand. You made some reference to tennis elbow in terms of how different people can heal at different times. Would you be good enough to shift that over to any kind of a hypothetical work-related injury and what this kind of restriction could mean -- in a worst-case scenario, I grant you -- for a worker who might be watching this right now on the parliamentary channel and understands we're saying it's important but is having some trouble understanding the why of that.
Dr Haines: In what I got, there was a chart that listed some of the proposed usual recovery times. Neck strain might have been six weeks if you're going back to light work. I don't know where that came from, and the Medical Reform Group will insist on these being referenced and supported, but let's say it's six weeks.
My understanding, and I haven't had a chance to look at this for very long, is that if your problem lasts more than six weeks, then you're going to be referred to something called a pain management program. I think you'll get four weeks of that. Then -- excuse me if I misunderstand this -- if after four weeks you at that point have not recovered, you're out of there. You potentially have no more benefits and you're not back at work. That doesn't make clinical sense, based on the individual. That's the situation we're running into. We'll run into lots of situations where we know the person has a problem, yet they're not getting benefits and they're not back at work.
Mr Christopherson: They're not back at work because they're not physically able to perform the duties they're being offered, yet they've been cut off WCB, so from there they just start falling.
Dr Haines: Furthermore, they've been cut off treatment, it appears.
The Chair: Dr Haines, on behalf of the members of the committee, I thank you for taking the time to come before us and share your views this afternoon.
OCCUPATIONAL DISEASE PANEL
The Chair: I'd now like to call upon Nicolette Carlan, from the Occupational Disease Panel. Welcome to the committee.
Ms Nicolette Carlan: I hope to speak for about eight minutes and then have some time for questions from the members.
Thank you very much for giving me this opportunity to appear today. For the past six years I have been the chair of the Occupational Disease Panel, which will be eliminated by the passage of Bill 99. I come today to ask you to re-examine the evidence and the facts before you let this happen.
I would just refer to Dr Haines's comment about evidence-based medicine and I would hope that the government of the day is interested in evidence-based policy-making. We'll look at the evidence before they eliminate the Occupational Disease Panel.
I want to preface my remarks by saying that I'm speaking not only on behalf of myself but for all the members of the Occupational Disease Panel, members who have been appointed by cabinet to represent different industries, different geographic areas of the province as well as differing perspectives. Management, science, labour, medicine and law have all come together. We are all in agreement that the position of the government to eliminate the Occupational Disease Panel will not serve the people of Ontario, nor will it aid in the prevention of occupational disease, a much-emphasized goal of this government.
I'd also like to make it perfectly clear that the position taken by the panel members and myself cannot be dismissed as a self-serving position to save our own jobs. We all serve at the pleasure of the government, and the terms of all the members will expire either by January or early 1998. Having served for two or more terms, all the members expect not to be reappointed even if the panel were to continue, so there is no basis upon which to dismiss our arguments as self-serving.
During the first 50 years of its existence, the workers' compensation system in the province dabbled with the recognition of and compensation for occupational disease. The efforts by the board were limited by the state of knowledge of workplace exposures and diseases.
In the late 1960s and early 1970s, the whole issue of occupational disease came to a head because of the extremely high rates of cancer among the uranium miners in Elliot Lake. Some of you who were still in the House at that time will remember the work stoppages and the constant bombardment in the House of government members because of the perceived failure on the part of the government to protect workers and provide safe working conditions.
As a consequence of the uproar, the Progressive Conservative government of the day appointed Professor James Ham to head a Royal Commission on the Health and Safety of Workers in Mines. The commission heard from 105 groups and individuals and made 117 recommendations. Running throughout those recommendations was the outstanding theme that occupational health and safety was a process in risk management that had to be shared by the workplace parties. To manage the health risk of workers, Professor Ham acknowledged that everyone, labour and management, had to know what the risks were and had to have some ability to control the environment to limit those risks.
In the next 10 years there were two other reports: the royal commission on asbestos and the Weiler report, Protecting the Worker from Disability. Both of these reports recommended the establishment of an independent Occupational Disease Panel.
Subsequently, the Liberal government appointed a tripartite task force to again examine the issue of occupational disease compensation and research in the province. That task force added its unanimous voice to the continued need for an independent Occupational Disease Panel. On that task force was a member from the Steelworkers, a professor of law representing employer interests and an independent professor of law from the University of Windsor.
On the basis of all these reports, the Progressive Conservative government set up the Industrial Disease Standards Panel, now the Occupational Disease Panel. The ODP has an annual budget of about $1 million. The capitalized cost of a fatal claim for a young worker has been estimated to be between $300,000 and $400,000, depending on the age of the worker and the number of dependants. If the research done by the ODP saves only three lives a year it will have saved the system money, as well as saving the extraordinary human costs of a life shortened by occupational toxins.
In Canada, the conservative estimate of direct costs of cancer for 1993 was $3.5 billion to the economy. In 1986, the only year for which these figures are available, the indirect costs of disability and premature death represented almost four times the direct costs of cancer claims. Assuming the same ratio would have existed in 1993, that means we have spent $12.7 billion in the economy to deal with premature death and disability resulting from cancer.
Even if only 10% of that cancer is occupationally based, we're talking about $1.2 billion in the economy. These costs to the economy and to the system will continue whether or not we recognize the occupational sources of disease. There is no question that there are occupational sources to cancer, and the only way we will eliminate any of these costs is to identify, recognize these occupational sources and eliminate them -- $1.2 billion to the economy.
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The panel has now been in existence for 11 years. During that time we've issued 17 reports of findings on subjects as varied as leukaemia among firefighters and scleroderma among silica-exposed workers. We've published an equal number of occupational and research papers. With the exception of two reports, one on scleroderma and one on aluminum presented to the board in 1992 -- the board being the WCB -- there has not been any action on any of the other reports. This is true for the previous bipartite board of directors at the WCB and it is equally true for the current WCB board of directors. There has been no action.
While the Ontario Workers' Compensation Board has never seemed to develop a mechanism for dealing with the ODP reports, the workplace parties and governments and courts in other jurisdictions have relied upon them. The work of the ODP has been requested or relied upon by the WCB in Newfoundland, the Supreme Court of British Columbia, the Home Office in Great Britain and the Workers' Compensation Board in the Australian state of Tasmania.
There is no doubt that the work of the ODP has been important in ensuring that workers be properly compensated, but the most important byproduct of the work of the ODP has been prevention. If you don't know the reason for the problem, you can't prevent it. The work of the panel has received international support and has enhanced the reputation of the government of Ontario in the field of occupational health and safety.
The position is clearly set out by Janie Gordon, chair of the occupational health and safety section of the American Public Health Association. This is an association in the United States which represents over 50,000 health care professionals, the vast majority being physicians. In her letter to the minister on behalf of the APHA, she wrote -- and I have given copies to the clerk so you can have them:
"Our members, who are primarily based in North America, have long appreciated the contribution to the field made by the Ontario Occupational Disease Panel. Its tripartite approach to occupational health problem-solving, which includes employers, labour and government, has been a model throughout the world.
"The real opportunity for saving lives in occupational health lies in prevention. The Occupational Disease Panel has promoted prevention through conducting scientifically sound investigations and research. This work has benefitted both labour and industry, not only in Ontario but throughout the world. Prevention and protection are obviously good for public health, but are also good for the business community and economic growth.
"There are a multitude of savings to a society which protects the health of its citizens, whether it be in the community or in the workplace. The membership of our section deeply respects and utilizes the work of the Occupational Disease Panel. We urge you to reconsider the elimination of this panel which has provided wide-reaching benefits to public health in North America and throughout the world."
Closer to home, Dr Jan Muller, a researcher for the Ontario government for decades who did ground-breaking work on the health effects of uranium mining, not only in Canada but also in his homeland of Czechoslovakia, wrote:
"Many thanks for sending me your report on stomach cancer in Ontario gold miners and your very kind letter. I sincerely hope that the WCB will act on your report and that the families of gold miners will receive compensation.
"I was deeply disturbed by your statement that the government has ordered he Occupational Disease Panel to cease operation as of December 31, 1996. Is this a way to create a good business environment, or do we want to transform the province into a developing country or a developing province?"
I have copies of that letter for everybody.
Added to this endorsement of the work of the ODP is the very hard evidence that the employer community in Ontario has taken steps to improve working conditions following the release of ODP reports. Following a research paper and prior to the issuance of its final report on laryngeal cancer and metal-working fluids, General Motors was retooling two of its plants in St Catharines. The corporation spent an additional $1.7 million to eliminate and control oil mists as much as possible to prevent disease in the future.
In Timmins the firefighters, together with management, have taken steps to eliminate diesel emissions in the firehalls by venting their firehalls, at a very minimal cost, which I am sure will save a life.
lnco has agreed to invest a million dollars to study diesel fuels made from grains as an alternative to oil-based diesel fuels to protect the underground work environment. They've done that through the diesel emission evaluation program.
All of this activity has been prompted by the reports of the ODP which have identified elevated rates of disease in various working populations. The only body which has not acknowledged the work of the ODP is the Ontario WCB. While the government is committed to preventing workplace illness, how will this be accomplished if the WCB is again put in charge of research?
I would respectfully submit that there are two problems. In the first instance, there is absolutely no evidence that the board or the commission will do the job. In the 70 years before the panel was created, the WCB did not do the work. In the 12 years since the creation of the panel, under governments of all stripes, the board has continued to fail to be effective in this area.
Second, and probably even more important, there is an inherent conflict of interest, which was the basis for the establishment of the ODP in the first place. The WCB's core business is ensuring injured workers are compensated and that there are financial resources available to compensate workers justly entitled. Think about how willing a staff member of the WCB would be to present a document to her board of directors which indicates that welders are getting lung cancer at a rate 50% greater than the general population.
ln that case, the expected compensation could be perhaps $100 million to be paid out over 10 years. A corporate board which is struggling to get a handle on an unfunded liability would not be a receptive audience to these data, no matter how strong the scientific evidence was. The board will experience the same conflict when researchers request funding from the board for studies which have the potential to establish a serious health problem in one of the province's largest and perhaps most vulnerable industries.
You are being asked to endorse a decision to close an efficient and effective government agency which has contributed to improved working conditions in Ontario. The need for such an agency has been identified by royal commissions, a tripartite task force and a government-commissioned review of the workers' compensation system. The agency you will be agreeing to close has been a leader in occupational health and has brought credit to the province of Ontario. You are also being asked to return the responsibility to the WCB, an agency which has never distinguished itself or even been effective in this area. That's what you are being asked to do.
There are alternatives to Bill 99. The ODP could continue to function as it does now and the WCB or the insurance commission could be required to respond and deal with the recommendations in a timely fashion. That's where the problem lies. An occupational disease secretariat could be established with administrative ties to the WCB but independent recommendatory powers. The details of this second recommendation are set out in our annual report, additional copies of which I have provided to the Chair.
Finally, it would be possible to integrate the ODP into the Institute for Work and Health, which would continue to allow for independent research in the province of Ontario. The decision to return research function directly to the WCB will benefit no one, in our view.
Thank you very much for your time. I would be glad to answer any questions.
The Chair: Thank you very much. We have just three minutes remaining, so we will give this period of questioning to the Liberal caucus.
Mr Hoy: Thank you very much for your presentation. You talked about saving three lives per year and what cost you can put on that, and everyone would agree that you can't put a cost on any of those lives. But your point is well taken that the work and the research that's done through the ODP is in the vein of saving lives or increasing the health and wellbeing of others.
You say there's been no action taken on reports by the WCB, in the main.
Ms Carlan: That's right.
Mr Hoy: Almost exclusively?
Ms Carlan: That's right.
Mr Hoy: I guess it really makes one wonder what the WCB would do if they had the sole responsibility for occupational health and diseases.
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Ms Carlan: I think the answer is quite clear. They haven't done very much. In the annual report, which I have provided to you, there's a time line of the diseases that were recognized prior to the inception of the Occupational Disease Panel and the WCB did virtually nothing for 70 years. Since 1985 there have been over 19 recommendations about diseases for which compensation should be payable and in the previous 50 years I think there were three conditions, one being asbestos, which received recognition throughout the world in the 1920s.
Mr Hoy: Do you see anything in Bill 99 that will compel the WCB to take on the role that the ODP previously has done? Are they compelled to do the work and the research that's taking place now?
Ms Carlan: They have the authority to do it. Are they compelled? I don't see that in the legislation, nor do I see any proactive role in preventing illness in this legislation.
Mr Hoy: In light of their past record, you would be very nervous about the fact that they're not compelled?
Ms Carlan: That's right. I think you make decisions about future activity on the basis of past practices, and if we look at the past practice, there's no reason to believe there will be a progressive or proactive role in this area by the WCB in the future.
The Chair: Ms Carlan, that concludes our time. Thank you very much. On behalf of the members of the committee, we appreciate you taking the time to come today.
HUMAN RESOURCES PROFESSIONAL ASSOCIATION OF ONTARIO
The Chair: I'd like now to call upon representatives from the Human Resources Professionals Association of Ontario, Mr Failes and Mr Clarke. Good afternoon, gentlemen, and welcome to the committee.
Mr Mike Failes: Thank you. With me today is Mr Ted Clarke. He's the vice-president, government affairs, for the HRPAO. I'm the chair of the provincial government affairs committee. My name is Mike Failes.
We are here today on behalf of approximately 7,500 members of our organization who are active in the human resources field in Ontario. These people are by and large the people who are asked on a day-to-day basis to administer the provisions of the Workers' Compensation Act as it now exists and, in particular, as I'll be emphasizing in a moment, are required to administer the return-to-work provisions of that legislation and the general return-to-work policies in their companies. It's important that when we are speaking today you keep in mind that we're here not as a group representing employers or a group representing workers but rather a group of people who are responsible for the administration of this legislation.
With that in mind, we'd like to focus on the area which concerns our members the most in their day-to-day activities and where they have the greatest amount of expertise and that's the return-to-work provisions found in Bill 99. In general, our membership supports overall reform of the legislation but this is the area that we'd like to make a few specific comments on.
For a number of years our organization has been advocating changes to the current act with respect to return to work. The primary concern we have is that the present act is fundamentally flawed in the way it was drafted. The best intentions simply did not get translated into good legislation. Everybody knew that early return to work was absolutely key in terms of both reducing costs for employers and, most important, in limiting the amount of time that workers were off work and giving them the greatest chance to get back to work. That, I would suggest, is absolutely undisputed. The problem was, the principle got enshrined without the tools necessary to carry it out.
We think there are three things that any good return-to-work legislation needs. One is provisions dealing with ensuring that good information is available, the second is ensuring that the information is exchanged between the people who need it and the third is that it's done in a timely way. The old legislation was completely inadequate in each of these three areas. We're pleased in general with the terms of the new legislation. We feel that each of these areas is addressed. We have a few comments that we'd like to make in terms of important aspects that you should retain and a few items we'd like to see refined.
Turning first to the quality of information, under the current legislation there is simply nothing there. The presumption was that somehow this information, something like manna from heaven, would flow into everybody's hands. Of course, the information didn't flow into everybody's hands. The result was that there were unnecessary roadblocks to workers getting back to work. It wasn't anyone's fault in particular; it just didn't happen because there were confidentiality obligations for the medical profession which had to be respected and which either impeded the flow of that information or stopped it entirely.
The crucial first week or two there would simply be nothing flowing to the employer. The old model was that doctors would simply certify that people were unable to work, and that was quite often absolutely correct, but it didn't address the real concern, which was, how can we get them back to work properly? Bill 99 goes a long way towards addressing that concern. Fundamental to that is the new functional needs assessment. That is the kind of tool our members need in order to get people back to work quickly and we support that very strongly in the legislation.
The second part that we think has to be there is the exchange of information between the parties involved. It's kind of like looking at a four-part process right now. There's the worker, there's the employer, there's the board and there's the health care professional. It's absolutely imperative that the information required to get the worker back to work -- that is, the functional needs, what the worker can do -- gets to all those parties as quickly as possible.
The old legislation, of course, didn't provide for the information to flow, much less how it would flow. The new legislation does that. There's one part that concerns us, though, and that is, to get the functional needs information back to the workplace and to get the worker back to work as a result, there has to be an obligation on every party to ensure that flow of information occurs: the worker and the health care practitioner as well as the employer. We'd like to see the legislation specifically address that.
What's more, we note in terms of the timeliness of getting that information back that right now, if you look at the legislation in section 43, there are all kinds of obligations with respect to providing information to the board promptly. When it comes down to providing the employer with functional abilities promptly, the section doesn't say that. There's no reference to the word "promptly" there. For some reason it has simply been omitted and we think that's probably the most important place for the timeliness to be emphasized.
One of the other provisions that we thought was very important in the legislation and we're pleased to see is the clarification of the six-month presumption, that if someone's employment is terminated, it's presumed to have been contrary to the act. As many of you probably know, under the current legislation the board operational policy is that unless the employer can show that it was for just cause or would cause some undue financial hardship, that presumption would not be met and WCAT would on a regular basis overturn the board operational policy because it simply didn't make sense. We think the correct test is the test that's in there now and that is, was the employer motivated in any part by the fact the person is on compensation or has suffered injury at work? Clearly, if that's the case, then the presumption has not been rebutted. We strongly support the reform in that area.
There are a number of parts of this legislation that I want to just make sure we emphasize we want to see kept. That's one. A second one is, we think the key to this whole return-to-work provision is the requirement that the functional abilities assessment be done and be returned to the employer in a timely way. The third key element which we want to see retained is the joint obligation on workers and on the employer to cooperate in the return to work and the identification of modified work.
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Finally, we would like to see the current provisions with respect to penalties on both workers and employers retained. That leads me to two comments in terms of some of the submissions that have been made to you earlier. We know that some groups haves suggested to you that the requirement to share functional abilities with the employer is somehow a breach of the confidentiality obligations. We'd say to you that's just absolutely incorrect to start with. Second, if you were to adopt that approach and say that's not acceptable, you may as well tell workers, "Sorry, we're not going to allow you to get back to work quickly; we're not going to do anything to assist in that."
We'd suggest if you really look at the information that's expected to be shared, it's not sensitive or confidential medical information, it's information about what a worker can do in the workplace. That's what our members want. We don't want to know what is wrong with the worker, the diagnosis. We want to know what the worker can do and what the expected duration of those limitations are. Surely, even if you were to characterize that as sensitive or confidential information, in light of the competing interest, which is getting people back to work quickly, it's more than justified that it should be shared.
The other comment we heard which concerns us was the suggestion that we should now remove the penalty provisions on employers that don't comply with the legislation. It seems to us that one of the flaws in the legislation as it existed was a lack of clarity about the stick, if you will, or the penalty being imposed on workers who didn't comply with the reinstatement obligation. It doesn't make any sense then to turn around and take that penalty away from the employer, who, after all, is largely in control of the process. We support maintaining a balanced approach to penalizing the parties who don't comply with the process. We think that balanced approach is seen in Bill 99 now.
In terms of the items that we ask that you consider some enhancements of, first of all, just a general comment that this will only work effectively if the board devotes sufficient resources to making it work effectively. Everybody knows if you don't get on this in the first five days, the game's half over. That goes for the WCB as well in terms of their case workers. If someone is not on these claims right away and monitoring the progress right away, it's still not going to work. Ideally, over the course of time as the system becomes more developed, the workplace parties will become more self-reliant, but certainly initially it's going to require a greater devotion of resources.
The specific items we'd like to see in addition in the legislation: First, as we indicated, we'd like to see a specific obligation on workers to cooperate with the health care practitioners and the employers in getting the functional needs assessment done and returned to the employer in a timely way. Second, we'd like to see in section 37 a specific obligation that the health care professional promptly provide the employer and the board with the worker's functional abilities. Finally, we'd like to see in section 43 an ability of the board to penalize workers who specifically fail to provide employers with the information that's required by the legislation. That's not specifically identified in section 43 right now. We think that should be worked into section 43.
Subject to your questions, those are our comments with respect to the return-to-work provisions and the association's thoughts on how the legislation can be improved.
The Chair: You've given us plenty of time for questions. We'll begin with the Liberal caucus, about three minutes per caucus.
Mr Sergio: Thanks for coming down and making a presentation to our committee today. You seem to have a problem with the existing law. As you said, it is currently very flawed. A couple of comments: Do you think the new, proposed law is more balanced? How would this new functional needs assessment work to create that balance, or will it not create any balance?
Mr Failes: Clearly, in light of the fact that we're in support of it, we think it will help. It's not so much create a balance in the case of functional needs assessment; it's give, in this case our association's members, the tools to carry out the purpose that's been in the legislation for a long time, which is of course to return workers to work quickly.
If our human resource practitioners don't know or don't have the information in hand to determine what a worker can do, it's impossible to determine whether they can do their pre-injury job, it's impossible to determine what modifications can be made to the pre-injury job. You've got to understand that right now what the worker comes back with from the doctor is, "Joe can't work; Joe can't perform his job." The doctor is at a tremendous disadvantage.
You ask any doctor -- I know that Dr Haines was just here and I'm not sure if he commented on it; I wasn't in the room. Our association has certainly had many meetings with the OMA in the past. Doctors have told us time and time again, "Look, we don't know what's in the workplace; we're not able to give some sort of generic note to the worker to deal with all the possible variables with modified work."
We see this legislation as an attempt to give the doctor something he can fill out which will allow him to provide an assessment of what the worker can do. It's then up to the employer to fit the worker into a job, that's where the employer's obligation comes in, and it's up to the worker to help the employer identify that job. That's the balance we see. But the tool we need is the functional limitations.
Mr Sergio: You mentioned a couple of times in your presentation penalizing workers who don't tell everything. What do you mean by that, penalizing workers who don't tell everything?
Mr Failes: I don't think I ever said we'd penalize a worker who didn't tell everything. I'm not sure a worker is in a position to know all of the things that have to be explained from a functional abilities perspective, for example, or that a worker is in a position to really assess all the aspects of modification of a job in the workplace. Those obligations are primarily going to lie with doctors and with employers, and those are the people who should be penalized if they don't comply with those obligations.
What the worker should be asked to do, though, is to ensure that he cooperates to the fullest extent possible in providing that information to the employer. I think virtually every worker is going to be more than happy to do that as long as they understand the ground rules, and the ground rules have to be, when we need a functional needs assessment done, you get into the doctor as quickly as you can and you cooperate in the medical assessment being done. I don't think there's going to be a problem with workers doing that, but it's got to be understood that it's an obligation.
Mr Christopherson: Thank you for your presentation. I think you can probably appreciate how nervous the average person is about the concept of being forced to release any medical information in order to qualify for WCB. Certainly as Canadians, I would think maybe even more than most around the world, we feel so strongly about medical information, and I don't think there's one of us in this room who's interested in having our personal medical records available in the public library. So the whole idea of being forced to give away some control over information about your own private health jars a lot of people, and I think we need to respect that fear people have.
Something crossed my mind. Because of the lateness of this arriving, I haven't had time -- I don't usually ask a lot of questions I don't know the answers to, but I'm going to go out on a limb here this time. One of the things Mr O'Keefe said in his letter of June 12 when he sent out the draft was that the physical precautions do not include any confidential medical information. By that I would assume he means actual detailed blood sample reports or other such information he would call confidential.
What I'm concerned about here is that, for whatever reason, if an individual chooses to keep a certain medical condition private, which is their right as a citizen in a free country, the functional ability information could indeed allow that to be made public to the employer. For instance, let's say they have a degenerative bone disease that is affecting their upper body strength. That doesn't affect their immediate job; therefore it's nobody's business but their own and their doctor's. That person has chosen, as a free citizen, to keep that information to themselves. This document, as I see it, could very well divulge to the employer personal medical information about their upper body strength that otherwise bore no resemblance or relationship to the work they were doing. What are your thoughts about that possibility?
Mr Failes: There are two things. First of all, the document, as I reviewed it and as I understand the purpose of the legislation, is not to divulge any confidential medical information in terms of the person's condition. That is, you would not put on that form, for example, "degenerative bone disease of the upper body." That's not accepted and I think you'll find, once you go back to Dr Haines's comments, that doctors are extremely sensitive about the release of medical information. I haven't seen the proposed release, but I would assume that it will specifically provide that you're only to give functional limitations and not provide any diagnosis or --
Mr Christopherson: May I interrupt you, because I don't have much time.
Mr Failes: Sure.
Mr Christopherson: I appreciate your response, but when I look at the form, and I have it in front of me, on the back it says, "repetitive neck movement, repetitive shoulder movement, heavy lifting." Again, by putting down that heavy lifting is a problem for me, where before lifting had nothing to do with it, you're now giving away medical information that otherwise I had at least the right to choose whether you would have it or not. Now I'm forced to give it away. I've lost a right that I had.
Mr Failes: What you're being forced to give up is not -- you can say that broadly speaking it's medical information but what it is really is your physical limitations or abilities. Given the Human Rights Code obligations, never mind the workers' compensation just for a second, the employer has to have the functional abilities of a worker, if only to ensure they meet their accommodation duties under the code. More than that, they've got to have it in terms of their Occupational Health and Safety Act responsibilities to make sure the person doesn't get hurt.
Mr Christopherson: Fair enough, but I may be perfectly fit to perform the job that I am currently doing, but the job over here I've got some problems with. I would never bid on that job. If I got bumped down to it, I'd have a problem, I'd have to deal with it, but in terms of doing this job, I can do it. You now know I can't do that job.
Mr Failes: I'm with you now.
Mr Christopherson: You had no right to know that before.
Mr Failes: The simple answer to that one is there should be a space on the assessment form, if there is not already, which starts off at the very beginning, "Is there any problem with this worker performing his pre-injury job?" If there's no problem with that, then we shouldn't be entering into this assessment anyway.
However, if the person can't do their pre-injury job, then the legislation says, and we think it's right, that the employer is under an obligation, with the worker, to find some other work in that workplace, if possible, and you can't do that unless you know all the person's limitations. So to the extent that you're saying yes, there is some divulging of private information, it's got to be more than met by the desirability of getting workers back in the workplace.
Mr Christopherson: I'll tell you, though, when it comes to putting that form in front of most Canadians and saying, "Here, give up any part of your personal health information," it really scares the hell out of them.
The Chair: I must interrupt. I do apologize. We'll move now to Mr Ouellette, please.
Mr Jerry J. Ouellette (Oshawa): A couple of quick points: First of all, you mentioned reporting to the employer. Under section 21, it says, "A worker shall file a claim as soon as possible after the accident that gives rise to the claim." As well, under section 20, "An employer shall notify the board within three days after learning of an accident." Do you think that is not adequate for what you're looking for?
Mr Failes: No. The next part we were concerned about is the obligation to provide the functional needs assessment promptly to the employer. That's different from the starting place criteria you've mentioned, filing the claim within the specified time and the employer notifying the board.
This is an additional area. If you look at, I believe it's subsection 37(3), where they list all of the obligations in section 37 to provide information promptly, you get down to the functional assessment, which is probably the one that is most time-sensitive, and for some unknown reason they don't have the word "promptly" in there. Why wouldn't they want that to be provided promptly? That's the one that everybody's waiting for to get the worker back to work.
There's a fundamental question at the beginning: Do you think it's important to get the worker back to work or not? If you don't think it's important, then you'll never agree with the legislation.
Mr Ouellette: I have another quick question for you as well.
The Chair: Very quick, and a quick answer, and then we're finished.
Mr Ouellette: This has come forward from a number of my constituents. When an individual is working, plays baseball on a baseball team and has a rotator cuff problem, should that problem be disclosed to the employer as well?
Mr Christopherson: That's my question.
Mr Failes: The fact that he has a baseball injury? No. But if we're now looking for modified work for this individual, it's not safe for that person to do work which involves raising his arm above shoulder height, yes, that is important because otherwise the employer, in fulfilling their obligation under the legislation, is not going to be aware they may be endangering the worker by putting him in that job, which looks very light, putting things on a shelf, but in fact will disable the worker further.
Mr Christopherson: But there's currently an ability for that person's personal doctor to say, "This is a problem for my patient." Also, this individual -- I'm sorry to jump in -- has lost their right to have control over that information.
The Chair: Gentlemen, I must interrupt. Thank you very much. On behalf of the members of the committee, we appreciate your taking the time to come this afternoon.
Colleagues, that concludes our last presentation. We will reconvene on Wednesday at 3:30. Thank you.
The committee adjourned at 1805.