TORONTO INJURED WORKERS' ADVOCACY GROUP
JACK WHITE CONSULTING SERVICES
CANADIAN MANUFACTURERS' ASSOCIATION
COUNCIL OF ONTARIO CONSTRUCTION ASSOCIATIONS
CONTENTS
Monday 10 June 1991
Workers' Compensation Board
Toronto Injured Workers' Advocacy Group
Jack White Consulting Services
Canadian Manufacturers' Association
Council of Ontario Construction Associations
Adjournment
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair: Kormos, Peter (Welland-Thorold NDP)
Vice-Chair: Waters, Daniel (Muskoka-Georgian Bay NDP)
Arnott, Ted (Wellington PC)
Cleary, John C. (Cornwall L)
Dadamo, George (Windsor-Sandwich NDP)
Huget, Bob (Sarnia NDP)
Jordan, Leo (Lanark-Renfrew PC)
Klopp, Paul (Huron NDP)
Murdock, Sharon (Sudbury NDP)
Offer, Steven (Mississauga North L)
Ramsay, David (Timiskaming L)
Wood, Len (Cochrane North NDP)
Substitution: Lessard, Wayne (Windsor-Walkerville NDP) for Mr Dadamo
Clerk: Brown, Harold
Staff: Luski, Lorraine, Research Officer, Legislative Research Service
The committee met at 1549 in committee room 1.
WORKERS' COMPENSATION BOARD
Resuming consideration of the designated matter, pursuant to standing order 123, relating to the Workers' Compensation Board.
The Chair: Thank you for your patience. Notwithstanding that we started a little bit late because of question period ending later than expected, all four groups will have their full allotment of time with the committee. I would ask that you tell us who you are and identify yourselves personally, then spend 10 minutes, 15 minutes at the most, on your presentation so that you leave a healthy and respectable period of time to have some dialogue afterwards. Please go ahead, the Toronto Injured Workers' Advocacy Group.
TORONTO INJURED WORKERS' ADVOCACY GROUP
Miss Gemma: My name is Airissa Gemma and I work at the Industrial Accident Victims Group of Ontario. We are part of an organization of community legal clinics. I would like to start off by introducing my colleagues.
On my left is John McKinnon, who works at Injured Workers' Consultants. On my right is Orlando Buonastella, who also works at Injured Workers' Consultants. He is a community legal worker. Beside him is Mark Barclay. Again, he works at Injured Workers' Consultants. He is a community legal worker. On the far right is Alberto Lalli, who works at the Industrial Accident Victims Group of Ontario. He is my colleague.
I would like to begin by saying that we welcome the opportunity to make submissions to this committee. TIWAG is an organization of community legal clinics, and some of the members are going to be speaking to you today. Together, on a yearly basis, we represent and advise several thousands of the most severely disabled and undercompensated injured workers in Ontario.
We are pleased that the Legislature is looking at long-awaited and needed changes involving the rendering of services by the board, but this committee must realize that the major problems facing injured workers require legislative changes and that limiting the reform to administrative procedures cannot ensure fairness to workers. As the Ontario Federation of Labour submitted in its brief to this committee on 29 May 1991, "We trust that the new legislation will be tabled by the fall and we look forward to being involved and having input into the substance of this new bill."
Mr Buonastella: I have been involved in workers' compensation issues for some 12 years now. I was there at the Park Plaza II in the fall of 1987 when the new integrated service unit system was unveiled. Mr Sorbara, Dr Elgie and Mr Wolfson were there. It was announced as though it were going to bring in a new era of workers' compensation efficiency. The statement attached here in our brief also speaks in grandiose tones about providing "more sensitive and effective services to its clients, particularly injured workers."
Since then, almost four years, the delivery of service has not improved, has not even stabilized from the previous system and has in many respects gotten worse. I think we and you have to also raise the question whether the change from the previous system of having several departments in place -- claims, vocational rehabilitation and so on -- into an ISU system, a system of integrated service units, has delivered. After four years we have to begin asking the question.
We are not administrators and our expertise is not in public administration. We handle workers' compensation complaints of our clients and of our injured workers, and we can only tell you that people are complaining that service is not being delivered. Not being public administrators and not being experienced in this matter, we cannot tell you the system has failed and there has to be a new integrated system come in or we have to revert to the old system. We can tell you, though, that we have to look at this question. It has been four years and the system has gotten worse. We are saying there should be an outside consulting firm, with genuine injured worker input, that asks some fundamental questions as to whether the ISU system has worked and whether it should be scrapped or whether there should be a new readaptation of the ISU system.
We think that the root of the problem is that the administrative change was brought about from the point of view of a narrow corporate approach to internal organization. That may work when you are making products or material things, but I think when it comes to servicing people it has not brought the desired effect at all. I think what has happened is that the ISU change has come in and has been accompanied by a process of high legalization of the board, where policy changes and a lot of changes have been brought about in all respects with a strong emphasis on legalism.
I think when you combine the legalistic approach that has come in in the last years, with the ISU system with its lack of service, it has brought about a process where everybody is unhappy. Injured workers are really angry because they talk now to answering machines, and you have heard all this. A lot of our injured workers do not speak English so when they hear an answering machine speaking to them in English they give up. So there is a lot of frustration from injured workers about service. Representatives are frustrated. I think board morale is at its lowest point, and we have enclosed a letter that I am sure you are aware of from board staff that was signed by many people at the board where they are really complaining about their lack of morale. I am sure employers are also coming to you and complaining.
I think the ISU system has some advantages because people have to work together. The concept of integration is not bad. However, it has worked to the detriment of independent decisions. We list on page 2 some of the areas.
Vocational rehabilitation: You recall that the Minna-Majesky task force recommended that vocational rehabilitation be given a higher profile. It was a separate division. What has happened? Vocational rehabilitation has in effect been given a lower profile in the sense that the vocational rehabilitation counsellor now has to consult with the pension adjudicator, with the claims adjudicator and the other members of the team. That independent decision that really belongs to the expert in rehabilitation is often compromised by other considerations, by people who are not coming from the point of view of what is best for the vocational rehabilitation of the worker. So we think that that has been compromised.
Another area is decision review specialists, who are the first level of appeal. They used to be independent; they used to be part of the hearings branch. Now they have been put back in the ISU system. We think it gives them less independence because they are now part of the decision-making unit and they now have to review decisions that are made by colleagues they have coffee with. It puts them in an awkward position, and I think we should look at putting them back into a more independent section, the hearings branch.
Finally, the ISU system has really eliminated counselling specialists. I am sure you have had dealings with them. Many of you have been in the business, if I can call it that, of servicing injured workers for a long time. Counselling specialists have, before the ISU system was put in place, been very useful. If you had a problem, you talked to one troubleshooter. They were assigned to you. Every organization had one troubleshooter; you dealt with one person. Now you have to find out who is handling the claim, and it is a nightmare. There is a big difficulty even speaking to the decision-maker. So we should go back to counselling specialists.
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Mr McKinnon: I would like to deal with a couple of short comments which have characterized the reviews of the workers' compensation system that have been conducted over the last couple of years.
One, as my friend pointed out, is the concern for legalism. As a lawyer, and not the only lawyer in the room, I can assure you that it is not the involvement of lawyers which he is taking to task, but we are talking about a narrow preoccupation with questions of legal interpretation and questions of what courts have done in other jurisdictions, rather than a concern about what ought to be done; what is the problem that the legislation is addressing and what are the solutions that are available.
Another of the shortcomings which have characterized the reviews that have occurred over the last couple of years is the lack of any real input into any of them of injured workers and their representatives. This has been a stumbling block, in our mind, in the provision of efficient services.
It has been I think two years since we have had the opportunity to make a presentation to this committee, and at that time, two years ago, we were responding to Bill 162 and not looking at the day-to-day activities. I think we said in our submission that it has been three years since we have had an opportunity to make a presentation to the standing committee on the day-to-day activities of the board and we hope that this can be done on a more regular basis.
There really have not been in the meantime any more effective channels for participation for injured workers into reviews at the board. The board has only superficially allowed for participation from injured workers' representatives.
By way of example, it sends out proposed policies for what it calls consultation, but then quite frequently the result of that consultation is either nothing or going ahead with the board administrators' original position without any substantial recognition of the input that they have received.
Another example is the bipartite advisory committee which was set up to develop policies under Bill 162. However, on the most controversial issue, and that is the deeming issue, or the calculation of the future economic loss award, again, the board went ahead with its administrators' original position, and this has left us with considerable controversy over what the effect of Bill 162 is going to be.
Again, injured workers have a representative on the board of directors, but his hands are largely tied. He receives literally mountains of material in the days before each meeting of the WCB board of directors, which he has to review and provide input on as the member representative of the injured workers' community, but most of this material is marked "confidential" and he is not permitted to show it to the community that he represents. It makes it extremely difficult for him to get input from other injured workers' representatives and advocates, and this has hampered our ability to have some input into decisions of the board of directors.
By way of example, the adoption in December 1990 of two apparently contradictory resolutions by the board of directors about the calculation of the future economic loss award shows what can happen when the ability of the people who know what the problems are and the people who have some views on them to participate in the policy setting and the decision-making at the board of directors is limited.
Another problem too with the access through the injured workers' representative on the board of directors is that the current representative is from Thunder Bay and they fly him down sort of immediately before the meeting and they whisk him away after the meeting and he does not have an opportunity to consult with representatives from the rest of the province. There ought to be some thought given to allowing him to more fully represent the injured workers' community on the board of directors by giving him time, at the board's expense, in Toronto or elsewhere to consult with injured workers' groups. He is certainly not in a financial position to undertake this on his own. As you know, it is a voluntary position on the board of directors.
Recently, we were also told, and again after the fact, that a committee had been established by the outgoing chairman of the Workers' Compensation Board to monitor the board's compliance with Bill 162. We think that there are serious problems with the bill and the question ought not necessarily to be compliance, but changing the bill. The committee that has been established is largely unfamiliar with compensation issues. The only member of that committee with compensation experience formerly represented the employers' advocacy group.
This and the Bill 162 review committee and other reviews of workers' compensation we think ought to be done by people with experience in workers' compensation, and people doing a review of the board should have a mandate to hear what is wrong from the people who know what is wrong and they should have a mandate to fix it, including the mandate to recommend legislative change. This has been lacking in the various approaches to review over the last couple of years.
I think at this point I will turn it over to my colleague Mark Barclay to talk about some of the specific problems.
The Chair: I am going to ask you to please be as brief as possible so that there is a modest amount of time left.
Mr Barclay: Certainly. I am going to talk a bit about what is going on and what is wrong with vocational rehabilitation. I guess the first thing is a little anecdote that my daughter and I had yesterday about the commercial that says you do not go to your florist to get a couch; you go to the right people, obviously. She thought that was a great ad. It is kind of that way at the board. You do not go to a pensions adjudicator to get good vocational rehabilitation and you do not go to a director of an ISU to say whether this course is valuable, but it seems that is what you have to do at the board.
A couple of my examples have to do with clients who were complying with vocational rehabilitation. They were co-operating, whatever that term means, and yet they had a great deal of difficulty. In one case, a person who was on a board vocational rehabilitation program in school was cut off for no apparent reason. His pensions adjudicator had looked over the case while he was co-operating with rehab and had determined that he would not benefit from this plan, so he was cut off. It took us a month to get the benefits back. He had not done anything new. The board program had been approved and in the middle they decided that he would not earn enough when he got out, so we had to go through an appeal of, yes, he would and we know this and blah, blah, blah. It took a month. He was cut off benefits and he had been doing what he and his vocational rehabilitation counsellor had agreed to do.
In another case, a worker who was an extremely bright, talented nurse, who injured her back quite severely, wanted to become a teacher. The board said no. Her case worker did not. Her case worker said it might be a good thing to pursue, but her pension adjudicator said he thought that really someone with a bad back should not be a teacher. My client complained as far up as the Premier and nothing seemed to happen. She asked me to intervene and I asked the Ontario Secondary School Teachers' Federation and a number of teachers' organizations whether or not you needed a good back to be a teacher and they suggested that really that was not a requirement that was absolutely essential. In fact, they said it was an ideal job for someone with a disability.
It took us a year and a half from when they first decided that she should be a vocational rehab counsellor, ironically enough, to go to hearings and to win that in fact she could become a teacher and that was in fact an appropriate goal.
Perhaps the most ironic thing is that in the time it took for them to make a decision she got pregnant and had a baby and, further, she was cut off benefits at Christmas because we had appealed the decision and the decision was sitting at the hearings branch waiting to be decided on and they decided that because it was at hearings branch she obviously was not complying with rehab again and so she was cut off benefits on 24 December. It took us two weeks to get her benefits back. Again, a worker complying with benefits in a board rehab plan.
Another worker I know was cut off vocational rehabilitation because of an IQ test that was administered, where he scored 85. As you know, someone with an 85 IQ would not be an ideal candidate for retraining. When it was pointed out that this worker in fact was given this test when he did not have use of his contact lenses and had had an eye injury -- basically he could not read the test -- it was suggested that the test results might be thrown out and in fact this worker might well be retrainable.
In many cases what voc rehab counsellors tell their injured workers is: "Appeal this. It's not up to me." Our question is, quite simply, why is a voc rehab counsellor having to say, "Appeal this," since it is the voc rehab counsellor who signs the voc rehab plan and is supposedly the person you go to see about voc rehab? If they do not know what is appropriate and cannot recommend what is appropriate, who can? I guess that is all I will say.
The Chair: We have six minutes and change for questions, so we have to be really fast.
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Mr Lalli: I just want to say, we can go with examples ad nauseam. Like Airissa Gemma has said, we deal with the worst cases, and those are our clients, the people who cannot get any sort of help from the board. Every time the board made a change, it was under this model that they were going to offer justice in a humane and speedy way. However, every time we see a change, there become more and more problems.
For any accident that has to be investigated, it takes at least six to eight months to get a decision. If that decision has to be appealed, it goes on for more than a year. In that time, the person does not have any benefits and has to go to welfare. That is the reality. He comes to our office, we make a phone call, we get an answering machine. And this is the nature of all communication. You expect to speak to a human being; however, you get this machine that gives you 48 hours. So if there is a problem with that cheque that did not come, I have to wait 48 hours for somebody to tell me why that cheque did not come. In the meantime, the person has no money. The senior worker can not do anything. Every time we hear how nice and speedy things are going to be and how personalized the service is going to be, we face more and more problems with workers.
Before, we could ask for a copy of the board file in order to proceed with an appeal and we would get it within a month. Now, with all the ISUs and all the computers and the photo imaging or whatever, it takes six to eight weeks just to get something. If we do not get a letter giving us the reason why the person was denied benefits, we cannot appeal. We have to wait three or four months just to get the letter to start the procedure for appeal.
In all of that, the situation that is the worst from my point of view is that I deal with immigrants and people who do not speak English. They used to go to the board and have an appointment with the claims adjudicator. Now they cannot do that. If they go, they are rejected. They have to phone and make an appointment. When they phone they get the machine, and so it is like a catch-22. The thing that is so strange for us is that every time we have had an opportunity in any forum with any MPP or political representative, we have said this is what is going to happen. And unfortunately, we come here on that basis exactly. It is not good to say we told you that, because it is not nice. However, that is the reality.
Mr Waters: I had a couple of short questions. I have heard a lot of complaints in these hearings about the adjudicators' assistants, as to whether it is worth while having the assistant or whether we are further ahead to simply hire and train these people to become full-fledged adjudicators.
The other question I wanted to ask was, what is the very first thing that you would do to improve rehab?
Mr Barclay: I think the question about whether adjudicative assistants are helpful is best summarized by, "Why is the person that I am calling not returning the calls?" I get someone else returning a call and it is like someone's secretary returning the call. You phone Mr Jones but you get another name on the machine that phones you back and says, "I called for such-and-such." She or he does not have the file in many cases. They are not helping you, but they have returned the call within 48 hours. Could they be more useful? They could certainly be used a lot better.
If there were one thing that I wanted to do with vocational rehabilitation, it would be to make the vocational rehabilitation counsellors able to make actual decisions as to vocational rehabilitation plans. Usually it goes to a pensions adjudicator to determine whether the vocational rehabilitation plan agreed to is appropriate. The pensions adjudicator should not make that decision.
The Chair: Any other questions, Mr Waters?
Mr Waters: I was going to turn it over to someone else, but I can always ask more questions if that is what you want.
The Chair: You have a chance to ask your second question now.
Mr Waters: No, I asked it in that way. It is okay.
Mr Jordan: My question is also to the gentleman regarding the vocational rehab officer. You are stating, as I understand it, that he should be able to assess the situation and make a decision. I have difficulty with that in that you then have one person assessing the situation and making the decision. Do you not feel that his recommendation should go to a committee and the pension officer should be part of it? The recommendation of the rehab officer just might not be in the best interest of the employee. There should be a pensioner or other members of the committee involved in the final decision.
Mr Barclay: I guess there are a couple of reasons why I do not like the committee structure. The obvious one is that it takes longer to set up committee meetings and to have everyone meet. That does not benefit the injured worker.
The other problem I have with it is that what generally seems to happen when someone else gets involved is that someone without expertise makes a ruling. A pension adjudicator may not know anything about vocational rehabilitation, and rules as opposed to a case worker. If case workers are professional enough, they make the decision.
I guess the situation we are seeing now is that pension adjudicators as opposed to case workers are making decisions, so it is just one person who is making the decision and it is the wrong person.
I do not think a committee of six, a committee of three or a committee of four is a better way to go about it. Injured workers tend to know what they want for a vocational rehabilitation plan. I think the consulting is out there. There is a lot of expertise about functional abilities evaluation or retraining that is appropriate. I do not think you need a lot of people consulting on it to decide on an appropriate rehab plan. What you need is the power for people to actually commit the funds. There is no set budget for vocational rehabilitation and there is no set time limit. Really, the vocational rehabilitation counsellors, if they were allowed to operate on their own, could do quite imaginative things. They just are not given that power.
Mr Jordan: But in some instances, I might have a case to be rehabilitated, but it might be a combination of part pension and part rehabilitation so that I would return to my normal income. Would this not enter into it at some stage?
Mr Barclay: The majority of people who would be rehabilitated would have some sort of permanent pension. I think you may be under some misunderstanding there. Most of the people who are getting large-scale retraining, such as a two-year community college course, might have a 10% or 15% back pension. They would get a pension and the question of rehab would be to give a supplement while they are in school to keep them up at their 90%. In most cases, people would already be on a pension when they were going to rehab.
Mr Waters: I would like to know if you feel the board has become too legalistic for a person to actually deal with. Not everyone has a union or an injured worker's rep. I just wondered if on a day-to-day basis you sense the board is becoming too legalistic with its clientele.
Miss Gemma: Maybe one of us who is not a lawyer should answer that. I will give you my opinion and maybe Orlando Buonastella will give you his opinion.
I have been in this field for about 10 years and in maybe the last five years we have noted a lot more employers hiring lawyers to do their workers' compensation cases. The issues have become much more legalistic than they were even when I started. It prevents injured workers from pursuing their case because they feel they need a lawyer in order to get adequate representation. In my opinion, yes, there have been so many changes in the last little while that it is difficult to keep up and it is becoming much more so than it was a few years ago.
Mr Buonastella: Perhaps I can just add that we are now facing a system where, from day one, many times many injured workers cannot handle the filling out of the form. The board should hire people who are communicators and make forms that are acceptable and understood by the workers of this province. From then on, it is a process that alienates injured workers. They do not understand the forms; the forms you read are hard for a representative to understand. The farther you go up, the more the system seems to be alienating everybody involved, first and foremost injured workers. I think your committee really has to take this on and first and foremost make the system accessible to the people it is supposed to represent.
The Chair: Thank you very much for spending time with us this afternoon. We all appreciate it. Thank you for your patience in waiting for us to start and you will undoubtedly -- I should not say that because things do not always happen the way they should. Lord knows the recent past is proof of that. But you should be among the first people to get the report once it is prepared by this committee. I hope you will look at it with interest and perhaps get back to us with further comments. Thank you very much for coming here today.
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JACK WHITE CONSULTING SERVICES
The Chair: Please tell us who you are, and then 10 to 15 minutes on your presentation so we have time for some conversation.
Mr White: The name is Jack White, currently in my own consulting business. I spent some 18 years with the Canadian Union of Public Employees as a full-time representative and two years as the director of social services for the Ontario Federation of Labour. Prior to that I was with the iron workers' union as a full-time representative, and I come to you this afternoon with some 20-odd years of experience in dealing with workers' compensation.
Let me, first of all, thank you for this opportunity. The atmosphere is somewhat different from when I last appeared before this committee, when the party in power was not, I suggest, that friendly to representatives dealing with injured workers at the Workers' Compensation Board.
The letter I received from Mr Brown indicated you wanted me to speak for five minutes and then allow about 25 minutes for questions and answers. While there are a vast number of concerns one could address, including the act itself, the impact Bill 162 has had and will continue to have on injured workers and their families, the failure of the board to offer meaningful rehabilitation to injured workers, the problem with the integrated service unit concept, and many, many others, I have decided to limit my remarks to perhaps the most important area of concern to most injured workers, namely claims adjudication.
In the February edition of the Policy Report -- that is the report, of course, published by the Workers' Compensation Board -- there is an article titled "Timely Decision-Making." On reading that report, my immediate reaction to the article was to ask myself the question, "Timely in whose eyes?" I analysed just what impact a delay in decision-making of 12 weeks would have on some of the people whom I have represented over the years and concluded that 12 weeks is much too long and, I suggest, quite unnecessary.
Just imagine having to wait 12 weeks, plus an additional two weeks for typing and mailing, for a decision. If the worker is lucky and the claim is allowed, he or she would undoubtedly have another wait of several additional weeks before a first cheque was received. I suggest to you, Mr Chairman, that this is most unfair.
I suggest it would be much better for the worker to receive a negative decision within a matter of a few weeks than to wait for 12. A quicker decision would allow for a quicker appeal of that decision.
How long should it take to read a claim file and be able to render a decision? That is the major question. While I recognize the tremendous case load given each adjudicator, with new claims being added on a daily basis -- which would indicate the need, I suggest, to hire more adjudicators and have the board pay for their training -- it would seem to me none the less that the members of the corporate board who proposed the timely decision-making policy did so with little or no knowledge of what is involved in the decision-making process or the effects such a policy would have on the injured worker.
An adjudicator who is having a problem determining entitlement due to lack of information should be able to notify either the worker or the employer within a matter of days, I suggest, not weeks, requesting the information, and allow a couple of weeks for it to be received. Should it not arrive, I suggest, within a matter of three weeks, a decision should be made.
What I am proposing, therefore, is a decision being rendered within the first six weeks. As already stated, the worker, in my opinion, would be better served receiving a quick, albeit negative, decision sooner than to wait for some 14 weeks for perhaps the same negative decision.
Recognize as well that it is not necessarily the fault of an adjudicator that there are delays in decision-making. The trade union movement must more vigorously attempt to educate workers in the need to supply information to an adjudicator as quickly as possible when requested. But one of the major causes of delay in the system is the employer's right to question every injured worker's claim, far too often, I suggest, without any sound reason. To cause a delay, all the employer has to do is declare that it has reason to doubt the history of the injury and automatically there is a delay.
Now, I am not suggesting that employers should not have the right to question claims of their workers. What I am suggesting is that the board must find a way to weed out those unfounded claims by employers and make it mandatory, perhaps, that positive proof be provided when either submitting the form 7 initially or whenever the information becomes known to the employer and they wish to challenge the claim. This procedure would help speed up the decision-making process, thus improving the system.
If I could digress slightly, I have been involved since February in the training of worker advocates for the Ontario Federation of Labour through a program as a result of the money given to the federation by the WCB and, I guess, the government. I had a session with the machinists' union just this past week. Several of those workers indicated to me that with every claim 7 that is submitted by this particular employer, on the bottom of the form 7 is simply written a little note saying, "We object to this claim." Every one of those claims is therefore investigated.
My daughter happens to be an investigator at the board, so I know what her job is and I have seen her operate. I can tell you that if a worker says there are four witnesses to an accident and that claim goes out for investigation, and one of those witnesses happens to leave on four weeks' vacation, that claim is then held up for four weeks until that person comes back off vacation and is then interviewed.
Recognize, as I say, the employer does not have to give any rationale, no reason whatsoever, only that it doubts the history of the injury, and the board then investigates it. There has to be some better way of dealing with that problem.
If, by way of regulation, a worker were given the legal right to view the form 7 before it is submitted to the board by the employer, thus giving the worker opportunity to discuss concerns raised by the employer, we would also see less in the way of delays in decision-making. Does a worker not have a legal right to see that form 7 before it is sent to the board?
I suggest to you that perhaps with freedom of information, the worker should have that right, and the government, I suggest, should make it mandatory that before that form 7 is sent to the compensation board, the worker be given the opportunity to view it.
These few remarks, I trust, will prove helpful to the government in any future deliberations on the subject of workers' compensation. Thank you very much.
The Chair: Thank you. You have raised some interesting issues.
Mr Offer: Thank you very much, Mr White. My first question deals with the statement you make on page 4 of your presentation that the board must find a way to weed out those unfounded claims. I am wondering if, as a result of your extensive history and experience in this matter, you might be able to share with us one such way.
Mr White: That is a good question. I suggest to you, sir, that if a worker is injured and is given an opportunity to view the form 7 before it is submitted to the board, as that worker's representative I am then in a position to say to the employer, "Why are you doubting the history of this injury?" If it requires that we go talk to the witnesses of that accident, if it requires obtaining further medical evidence, you know, we can perhaps ask for a delay at the board, or we can submit the form 7 and say there is further medical evidence forthcoming in this claim.
Recognize that causes a delay. The worker says the accident happened this way, and a board doctor says that is not compatible. If we knew that right up front, certainly we are then in a position to gather that evidence to submit back to the board. Unfortunately, we wait for four months before we find that this is the cause of the delay.
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Mr Offer: If I might follow up on this question, I take it you are not advocating that employers should not be able to contest a particular claim at this level.
Mr White: No, I make that quite clear.
Mr Offer: I think also in your response you have indicated that this, in itself, may result in a delay. I guess my question is almost the same as in the beginning. The statement you make on page 4 is really, I think, directed to getting on with making the decision, but the solution you have provided is one which, in itself, might not meet that particular goal. The employer will still have the right, as a fundamental right, to contest the claim.
If not here, then certainly it would be helpful for us if we might get some suggestions as to how this aspect of your concern might be addressed in a way which would still retain, of course, the right of the employer to contest, and if at all possible would speed up the initial determination. I think it might be helpful for us because this is a matter which is of some concern.
Mr White: We recognize that not all claims are legitimate. Certainly there are those employers who quite legitimately say, "We have reason to doubt the history of this injury"; no question about that. But I suggest to you that where that employer simply is objecting for the sake of objecting -- unfortunately, as with the machinist the other day, as I said, that employer is deliberately objecting to every claim, hoping the worker will get fed up with the delay at the Workers' Compensation Board, go on weekly indemnity, which is cheaper, and get off the hook.
Mr Offer: I recognize what you are saying. You always take me right to that point and I say okay, you are saying that there are employers, as I take it in your presentation, that put in a form 7 for the mere fact of putting it in -- that is what you are saying -- and that results in a delay and that they are doing that for a variety of reasons, but that not all of those form 7s are in fact for that purpose. I think you are also saying that many of them are very well founded.
Mr White: Yes.
Mr Offer: How do you distinguish?
Mr White: I suggest to you, and I suggest that even the board is recognizing, that there are those employers that are establishing a pattern of objecting to every claim. In those cases, I suggest to you that the board should say: "We are not going to deny this claim based on the mere fact that you are objecting. Give to us some concrete, positive proof that you have reason to doubt the history and then we will investigate it.
Mr Offer: I wonder if apart from contesting, saying to some employers, "We do not agree with you," if instead of taking that tack, the tack would be to speed up the adjudication process, still thereby allowing the employers to do what it is their right to do, but saying, "The decision will be quicker even if you do provide a form 7 notice." I am just wondering as a possibility whether that is the route to go.
Mr White: Could be.
Mr Offer: Apart from saying to some, "You don't have the right to do this; you don't have the right to put in a form 7," for a variety of reasons, we say, "Of course everybody has the right to do that, but what we will do is try to make the system a little bit more efficient, speed up the decision-making process so that which you have a right to do shall continue, but the decision will also be speeded up, thereby addressing some of the needs of the employees."
I think those are some of the things that maybe they are trying to do in the court system and in a variety of ways. It is not saying that people cannot enter pleas of not guilty, but it is saying that the trial date is going to be speeded up. Those are two very different tacks that are taken, one of which I agree with, giving the person the right to do what it is his right to do, but also saying that decision is going to come to fruition as soon as possible.
I say that not so much as a question as a matter of comment. That would be it. You look at me quizzically, Mr Chair.
The Chair: No, I am looking at you with a sense of wonder.
Mr Offer: It is a quizzical look the Chair is casting my way.
The Chair: The point is well made, Mr Offer.
Mr Jordan: My question perhaps is because of my lack of knowledge. Who represents the employer on the board?
Mr White: On the corporate board? There are four members of the employer group on the board. I do not know if I could name them.
Mr Jordan: But there are four people representing the employer.
Mr White: Yes.
Mr Jordan: Then I find it difficult to understand through our constituency office why the employer is not interested -- I cannot say "not interested." The injured person is coming to my constituency office for me to see why there is a delay in the action on his case. Where does the employer have responsibility in this regard? The employee was injured at my company. Do I not have a responsibility to see that the action is being followed up?
Mr White: Under section 121 of the act, you have a responsibility as an employer to, within three days, submit a form 7 to the board outlining the history of the injury as it has been relayed to you as the employer. There is a question that says, "Do you have reason to doubt the history of the injury?" All the employer has to do is tick that and there is an automatic delay, there is an investigation. One of the problems probably is that there are not enough investigators as well.
Mr Jordan: Suppose the claim has been approved and I am entitled to my allotment, whatever it might be, but it is somewhere in somebody's basket and my mortgage payments are due and so on and the money is not coming through. Does the employer then have a responsibility to his employee still to see that it is followed up and the money does come through?
Mr White: No.
Mr Lessard: I wonder if you could give us some reason why this objection would be made by an employer right off the bat and an investigation called for. What would be the advantage to an employer to do that?
Mr White: I have been a shit-disturber in the plant, okay, and here is an opportunity to get White. I will object to that claim knowing that it is going to delay White getting any money for four weeks.
Mr Lessard: Just out of spite then, I guess.
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Mr White: Certainly. But recognize as well that with the Workwell program and with the new experimental experience rating program, an employer whose frequency of accidents has decreased gets a rebate from the board. So if I as an employer can hide accidents or if I can convince the board that all of the accidents that have happened I have reason to doubt, I get a rebate perhaps. Or if I can get workers to go on weekly indemnity as opposed to claiming workers' compensation, they are not reported to the board.
Mr Lessard: Do you think it would be helpful to at least provide on the form where an objection is made some reasons for that objection?
Mr White: Exactly. That would certainly help.
Mr Lessard: That is not the case at the present time?
Mr White: No.
Mr Lessard: All right. The other thing I think your presentation focused on is the length of time it takes to make decisions. Is that correct?
Mr White: Yes.
Mr Lessard: You have indicated here that even a negative decision would be better as long as it was faster.
Mr White: Yes.
Mr Lessard: In my own experience in my constituency office, when the Windsor office is pressed for a quick decision then almost inevitably that is going to be a negative decision. Has that been your experience?
Mr White: Yes.
Mr Lessard: That does not really provide much assistance either. You are almost eliminating that person's role in the system. Would you not agree with that? If their job is only to say no, then why do we need that step?
Mr White: Personally, I am not convinced that it should take 12 weeks to review a claim, determine that further information is needed and not be able to get that further information within a much shorter period of time. I recognize that an adjudicator carries a tremendous workload. There was a question earlier about the assistants to the adjudicators. In my opinion, they should all be adjudicators. I forget on which page of my brief I make reference to the need for more adjudicators and that the board pay for the training of those adjudicators. There is a course offered at the George Brown community college. If assistants at the board want to take that course, they are advised that they do it at their own cost. Then there is no job guarantee after they have completed it, and the board is crying for adjudicators.
Mr Lessard: Right. You would agree then as well that there is a need for increased training for adjudicators.
Mr White: Definitely.
Mr Waters: On the same line, sir, once they are trained and we do have qualified adjudicators, because of your longevity in the industry, do you feel they are upgraded on a regular basis sufficiently so that they can stay on top of their case load or the changes in the policies?
Mr White: I would suggest to you that the vast majority of claims adjudicators do not know the act. They know perhaps the regulations and the policy of the board, but if you phone an adjudicator and you quote subsection 3(3), which is the presumption clause, he may want to know what you are talking about.
Mr Waters: So they might know the policy but they do not know the act, so they definitely need more training.
Mr White: Yes.
Mr Waters: One of the things we have heard about from yourself and from others is time lines. Do you feel there should be time lines set for phone messages, for correspondence, decision-making? Do you think that should be set down in stone, do you think it is should be left as it is or somewhere in between, or exactly how?
Mr White: I have a worker whom I have been representing since 1983 and we are still battling with the board. I will pick up the phone to phone the adjudicator to say, "My worker hasn't gotten a cheque," and I get the answering machine. I bang the phone down and I say -- well, I will not repeat what I say, but that will happen at least three or four times a day. Then I have to phone that worker back and say, "I didn't get through to the board, but as soon as I do I will get back to you." I am unfortunately not one of those who is even getting my calls returned, so I have an even greater problem.
There was a period when I had a counsellor whom I could call -- and that system worked, believe me -- where I could phone my counsellor and say: "Here's a claim number. Would you look up this claim and tell me what's happening in it." That works.
Mr Waters: They are no longer there?
Mr White: That has been done away with.
Mr Waters: Would you suggest that that be brought back into the board?
Mr White: Oh, definitely.
Mr Waters: Okay. That case is interesting. Since 1983 -- one of the things I have found is that there is the great paper shuffle and no one seems to know where cases are -- would you be able to even estimate, off the top of your head, how many different adjudicators you would have on that case?
Mr White: Oh, no. I would not even venture a guess.
Mr Waters: Okay.
The Chair: Are there any other comments that people feel obliged to make or questions that people feel obliged to put?
Mr Waters: I would not mind asking one more. It is the same question I put to the injured workers prior to you. I know that you represent mainly unionized people, but for those who are not unionized, do you think something should be done with the legalistic attitude of the board?
Mr White: Definitely. Recognize as well that a worker whose claim has been denied is advised, "You have failed to co-operate under section 40 of the act," and then maybe they spell out section 40. The average worker may still read that letter and not understand why he or she was cut off. There is really something wrong with a system that is supposedly deemed and beamed at injured workers, a great many of whom do not have English as their principal language. I have represented workers who were illiterate. They get that letter, and of course they do not even know what it means. There should be and has to be a better system found to advise a worker as to why his or her claim has been denied and what he or she can do about it.
Recognize as well that as long as we have the Robert Cronishes and the Richard Finks and those who are making a living off the backs of injured workers, they are going to make it as legalistic as possible, because that makes their money; that makes their dollars.
The Chair: Mr White, thank you very much. This is the first time our attention has been focused so intensively on the issue of form 7s and employers' response to injury, and I think it has been a valuable period of time for us. Thank you for coming, thank you for waiting, and we have enjoyed having you here, all of us. Take care, sir.
Mr White: Thank you.
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CANADIAN MANUFACTURERS' ASSOCIATION
The Chair: The Canadian Manufacturers' Association. Please tell us who you are, and tell us what you wanted to tell us.
Mr Howcroft: My name is Ian Howcroft. I am the employee relations policy adviser with the Canadian Manufacturers' Association, Ontario division. To my left is Maria Marchese; she is the CMA workers' compensation specialist. To her left is Rosa Fiorentino; she is a member of the Ontario division workers' compensation committee and an employee of Esso.
You should all have a copy of our presentation. Appended to that is a copy of Workers' Compensation in Canada: Facing New Realities. That is a report we issued in 1989. Many of the recommendations are still valid today and I thought it would be useful if you all had a copy of that.
By way of introduction, I would just like to state that the Canadian Manufacturers' Association is unique among employer organizations. We represent both large and small manufacturers from all regions of Ontario and all areas of the country. We also represent manufacturers from all sectors.
With respect to workers' compensation, we have been very active in the debate since the inception of workplace injury compensation in Canada. In 1912, we were one of the parties that made a brief to Mr Justice Meredith on the issue of establishing a compensation system for victims of work-related accidents in Ontario. Further, the CMA was instrumental in proposing and endorsing a voluntary experience rating plan, which has been in existence since 1953 and is currently administered by the board.
Workers' compensation has been and continues to be a priority issue for manufacturers. The CMA has always stressed the need for efficient management of the system in such a way as to ensure that as much of the money as possible would be devoted to compensation for accident victims rather than for administration. It has always been our position that the procedure for adjudicating claims should be simple in order to minimize friction between employers and employees. We must do all we can to prevent accidents; however, when an accident does occur, we must do all we can to ensure that the worker returns to the workplace as quickly as possible.
For the last five years the workers' compensation system has been in a constant state of change. Legislative amendments such as Bill 101 and Bill 162; organizational changes such as the ISUs; the new on-line payment system known as the workers' benefit system and the on-line system for storage of files known as imaging, are all contributing factors to the constant changes the board has been experiencing. These factors, coupled with the vast number of strategies implemented -- medical and vocational rehabilitation are examples -- have resulted in ongoing disruptions in terms of functioning of the system. For service delivery in general, and the adjudication process in particular, the impact has been inequality and inconsistency of adjudication.
We would like to just go through some of the major problems we or our members have experienced and propose some recommendations.
The first one is with regard to telephone communications. This is the most expedient method of providing and receiving information. However, with the introduction of the voice mail phone systems, the result has been the inability to either immediately access the claims adjudicator or to have access to the adjudicator at any point. In cases where files are handled by a night-shift worker, it is impossible to have any communication with the adjudicator at all during the day, or access anyone who could or would be able to deal with the concerns being expressed.
The experience of a majority of our members has been that phone calls are not returned within the 24- to 48-hour period or are not returned at all in some instances. In those cases where there may be a call back, the result is a call back from a case assistant, who for the most part is not familiar with the contents of the claim or is not in a position to answer the questions put to them. The result is the referral of the call to the claims adjudicator for handling. In terms of service delivery, the result is a further two-day delay in receiving a reply. The problem is applicable to both the adjudication staff as well as the management staff. The use of answering systems also results in the creation of a backlog of calls to be returned.
We therefore recommend direct accessibility to claims adjudicators. It is also important that the client public have access to management staff in cases where there is concern about the delivery of service.
Management staff must be required to intervene in cases brought to their attention and should provide the stakeholder with a reply. The removal of the new phone system is an option to be considered. In the alternative, a system must be implemented to ensure that calls are returned by the adjudicator within a 24-hour period.
Written communication is a most often utilized form of communicating concerns or objections regarding a file. However, objections and/or concerns put forth are neither acknowledged nor replied to. Most often, the reply received is a standard computer-issued form letter which simply advises of the approval of the claim.
We therefore recommend that a system be implemented that would require the immediate issuance of an acknowledgement of the correspondence within 24 hours of receiving the letter. A further letter of explanation should be issued within a reasonable time frame thereafter, outlining the inquiries being conducted to address the issues raised in the correspondence, and a time frame when a complete explanation could be received. It is also imperative that this function be overseen by a member of the management staff to ensure its application.
With regard to case assistants, case assistants are being utilized to aid claims adjudicators in their adjudicative functions. The lack of proper training of these assistants has resulted in a low-level knowledge base, and in many cases they are unable to deal with specifics regarding a claim file, which could lead one to suspect that their function is clerical in nature, consisting of returning telephone calls and other clerical duties.
We therefore recommend that the position of case assistants be revisited with the view of the possible elimination of these positions. The board should, however, assess the knowledge base of those currently in the positions to determine their suitability as trainees for positions in adjudication.
Decision-making and the communication of decisions: Decision-making is, naturally, integral to the adjudication process. However, the provision of full explanations regarding entitlement decisions and, in particular, replies to specific concerns submitted, are not always provided as a course of action. In those cases where one is provided, it is received one to two months after the decision has been rendered and does not always address the concerns raised.
We therefore recommend that all concerns submitted be addressed, verbally and in writing. Letters of explanation should specifically outline the concerns submitted, the board policy and the criteria to be met, and why the decision either complies or does not comply with the policy and/or criteria. Written replies should be provided for all decisions rendered. In cases where there is a delay in rendering a decision, all parties in a claim should be kept apprised of the reasons for any delays incurred. A quality control system must be implemented to ensure that there is compliance to this requirement.
Sound adjudication decisions can only be rendered with an expert knowledge of the act as well as the policies and criteria established to administer the act. However, the introduction of extended work hours has resulted in the advancement of much less experienced personnel to technical adviser and manager positions during the night shifts.
We therefore recommend that those in senior positions have the necessary experience and expert knowledge to assume the more senior positions. Advancement of individuals should not be the result of failing to receive the suitable applicants. Efforts should be made to ensure that the more qualified are advanced to the positions.
With regard to case loads, in order to render logical decisions it is essential that the number of files being handled are of a manageable size. We therefore recommend that the case load sizes range between 100 to 125 at the entitlement adjudication stage, and a more reasonable level at the benefits adjudication level.
Appeals: All decisions rendered are open to appeal. However, coupled with the delay in receiving a written decision is the delay encountered in the referral of the file through the various levels of appeal. We therefore recommend that the process be structured so as to not only facilitate release of the claim file documents on a more timely basis than is currently used, but also to expedite referral of the files through the various levels of appeal. A time period of one year to have a file reach the final internal level of appeal is unacceptable. A file should be before a decision review specialist, at the very latest, three months post-original decision. A hearings officer should be scheduled within one month from the date of the decision review specialist's decision, and a hearings officer decision should be rendered within one month from the date of the hearing.
Operational policy manual: It is essential that a reference manual be available which provides specific guidance on both board policy as well as procedures for implementing the policy. However, the new operational policy manual provides very little in the way of procedures and guidelines. As well, the manual updates resulting from changes of the board policy are not available for distribution until months after the changes have been implemented.
We therefore recommend that updates to the manual be made available on a more timely basis. More important, the manual should provide more specifics in terms of procedures and guidelines. In its current form, the likelihood of subjective interpretation of policy and inconsistent application of the policy is greatly increased.
To conclude, we would like to recommend that a value-for-money audit be conducted to ensure that the resources of the Workers' Compensation Board are put to their best possible use. Resources are not unlimited; therefore they must be used as productively and efficiently as possible. A value-for-money audit, in all aspects of Workers' Compensation Board matters, would be a start in identifying ways in which resources are not being used properly, and also in recommending what actions should be taken.
That ends the formal presentation. We would be pleased to entertain any questions that the committee might have.
Mr Waters: You deal with compensation all across the province, I think, do you not, or your group? I was wondering, with the new technology that has been placed in some areas, do you see any change? Do you see that it is going to help? Because it does not seem to matter whether we have the injured worker, labour or management people here; we seem to have the same type of thing. I was just wondering, from your perspective, if you have seen any change with the new technology that is in place.
Mr Howcroft: By the new technology, do you mean the imaging?
Mr Waters: Yes.
Mr Howcroft: To my knowledge, that has some benefits in limited areas, but I think there are a lot of problems associated with the imaging. We have heard a lot of concerns expressed about how well that system is going to work and how well it is currently working. It is leading-edge technology and I think it has to be proven how effective it is going to be. It might take several years before that has been demonstrated.
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Ms Marchese: As well, I was going to add that the imaging is only available for post-Bill 162 claims anyway. So it is not available for the older claims. There are a great many problems with the older claims, if you look at them in terms of volume especially. Those are the ones, in terms of the problems with communication, that you have the most problems with because you have the most issues that deal with. The imaging deals with relatively thin files right now.
Mr Waters: You were here during the previous presentation, I assume. Looking at that and form 7, I know from my past experience that one of my employers said the same thing, that it was going to question every claim. Could you give us some reasons why employers are doing that? Personally, I do not believe that it is so much the employer-employee relationship; I think it is frustration. I would just like you to clarify some of that.
Ms Fiorentino: From an employer perspective, I can honestly say we have only ever checked off that square if we felt it was really necessary and felt that the claim was not work-related and did have proof of that fact. It is not just a matter of checking off the square. You do have to provide a letter before they will even start the investigation. We found that by checking off that square, nothing is done; the claim is still processed. But we always attach some kind of letter explaining our reasons for possibly wanting the claim denied.
Mr Howcroft: Most employers want to ensure that the workers who are injured in their workplaces get compensation as soon as possible. Many of the members whom I deal with assist their members to make sure they do get the benefits as soon as possible.
Mr Waters: I have asked the other side and now I will ask you. How do you feel about the legalities of dealing with the board? Do you find that it is wrapping itself up too much in legalese and not actually fulfilling its mandate, making it a little more difficult for your client?
Mr Howcroft: It is very difficult for our members at this time. It is very legalistic. I heard the comment that was made previously, and a lot of our members would agree with that. Employers do not appreciate having to go out and retain a lawyer to have a workers' compensation issue settled. It is very expensive for them to do that and it is a not a benefit to the system.
Mr Lessard: I just wondered if you could make some further comments about what you mean by a value-for-money audit. Could you give us some recommendations on what you think that means, what you would hope to accomplish as a result of that? We have heard previously that it might be helpful to have a consulting firm review service delivery. Is that something you have in mind by that recommendation?
Mr Howcroft: Have a consultant look at the provision of services, the revenue side, all aspects of the Workers' Compensation Board. The Workers' Compensation Board is an enormous structure. There are thousands of employees. It deals with billions of dollars in assessments, a multibillion-dollar investment portfolio. We feel that all aspects of the Workers' Compensation Board should be put under the scrutiny of an independent consultant who could do a complete audit and make recommendations as to where funds would best be utilized, what should not be done, what improvements could be made to the provision of services and in the administration of the Workers' Compensation Board.
Mr Lessard: Has that ever been done, to your knowledge?
Mr Howcroft: I believe there have been some audits done several years ago, but I do not know how much action was taken, if any, from those results. But I think there have been enough changes in the last five or six years that would warrant another audit being conducted.
Mr Lessard: I have not have an opportunity to look through the recommendations that you made previously, but can you point out some of the major ones you may have made that have not received any attention or have not been acted upon?
Mr Howcroft: You mean in the Facing New Realities paper?
Mr Lessard: Yes.
Mr Howcroft: One of the major issues is the unfunded liability. That has continued to escalate and that is something that has to be addressed immediately. It is over $9 billion now, I understand, and it cannot continue to increase. We have to take action now and a value-for-money audit would look at that aspect. We also have proposed that the vocational rehabilitation be implemented as soon as possible. I know Bill 162 was to address that, but a lot of the vocational rehabilitation sections are not being implemented as envisioned. That is something that also has to be addressed.
Mr Offer: Thank you for your presentation. I have a question around the whole issue of case assistants. In your presentation, I think you have recommended clearly that you would like the case assistants to be eliminated. My question is whether you come to that conclusion as a result of a lack of training or something else. I am wondering if you might want to share with us the reason why you would advocate the elimination of case assistants.
Mr Howcroft: I think it is twofold. The lack of training is one problem. It is also, what exactly are they doing? Is it an effective use of those resources? Adjudicators are the ones who will be making the decisions. The assistants try to help out, but all they can do is return a call and say: "The adjudicator is too busy to speak to you right now. I don't know the answer. I can't help you but I'll pass on your concern." You are just creating more work for people. Again, it is not the best or the most effective way to utilize resources.
Mr Offer: That answer is, I would suggest, quite consistent with your final recommendation of the need for a value-for-money audit with a view to seeing if the dollars are well spent in terms of case assistance. Or do you feel it is more important that there be more adjudicators as a result?
Mr Howcroft: It may be that the resources should be allocated in that area. Perhaps having more and better-trained adjudicators would help to address the problem.
Ms Marchese: The whole purpose of the case assistant was to assist in the adjudication process by simply returning calls. It is not really performing in the manner it was established to. In that way again, as Ian said, you have to revisit the issue of the number of adjudicators. If it is simply a clerical job, should you be spending the money on the case assistants or should you in fact be concentrating on better training for claims adjudicators or trainees for the claims adjudication process?
Mr Offer: I am trying to get an understanding and your response is certainly helpful in that regard. One of the things I heard earlier in terms of this question of a value-for-money audit -- it is not the first time it has been brought forward -- is that maybe it would not be necessary to have any change, that we keep the system without change, let those who are involved in the system now get accustomed to some of the new responsibilities and then potentially, somewhere down the line, within a short of period of time, a year or so, a value-for-money audit be instituted, but only after there has been no change, allowing people to get accustomed to the new responsibility, the new management of the system. As a result, a value-for-money audit might be even more definitive in its final analysis.
I am wondering if you see the need for a value-for-money audit now. I would like to ask almost -- if I can sneak in a couple other questions -- what do you think it might show? Does the Provincial Auditor not have the authority or the ability to do a value-for-money audit? I snuck in three.
Mr Howcroft: I believe he has the authority. I do not know when or if he has done one recently.
Mr Offer: Do you think that would be a logical and acceptable institution to do this type of audit or are you thinking of somebody else, something outside?
Mr Howcroft: We had envisioned a more independent one than the Provincial Auditor, to do one more in depth than what the Provincial Auditor would do, to look at all aspects, not just the finances but the whole thing, to make sure we are getting value for money.
There has been a lot of change at the Workers' Compensation Board over the last several years and we are not proposing that this change be increased again right now. There should be a time to let the new chair and the new vice-chair deal with the problems that are there and try and get some semblance of order.
However, I think you can start with the process of a value-for-money audit right away. You do not have to say, "We want it in three months so we can implement those changes." You start having tenders come in, you look at the problem, you set a mandate for the independent auditor. They can do the report, which would take quite a while. By the time the report is complete and finalized, your year probably would have gone by. I am not saying the changes should be ready to go in a year, but there should be some time to get a semblance of order there.
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Mr Waters: I have asked this before, not today, but it is a question that I like to ask every so often. How often are you people consulted when the board goes to make changes? Are you ever consulted in advance?
Mr Howcroft: I guess it depends on how you define consultation. If you call inviting us in for an information session consultation, we are consulted quite regularly. However, if it is being given the opportunity to have meaningful impact, then I would say we are not consulted all that often. That is a problem at the Workers' Compensation Board and at the Ministry of Labour.
Mr Waters: Okay. Another question I have is decentralization. The board has been going through that. Do you feel that it is a worthwhile thing to decentralize a lot of the functions of the board, or do you think they should stay primarily at 2 Bloor East?
Ms Fiorentino: I find that with a lot of the decentralization comes a lot of inconsistencies from one office to another. Having one employer trying to deal with all these different locations does cause a lot more problems and a lot more time constraint as well.
Mr Waters: One last question -- I promise it is the last. The delays, backlogs, inconsistencies in policy and all of those things that you have mentioned -- what do you think they are costing your group, the people you represent, in a year?
Ms Fiorentino: From an employer perspective or an employee perspective? I represent not just the employer but a lot of our employees as well in helping them get their claims accepted and expedited.
Mr Waters: Either or both. I would not mind hearing, actually, from the employer and the employee perspective.
Ms Fiorentino: From an employee side, there is one employee who has been trying to get a claim adjudicated from last November, and it has taken six months for me to even receive that decision. In the interim, we had no status reports whatsoever from the board, so we had no idea where this claim was and why it was taking so long. A lot of the communication just is not happening.
Mr Waters: In essence, that person has lost wages for that length of time.
Ms Fiorentino: In our case, we continue to pay our employees, but unfortunately this one employee had to make a decision whether he wanted to retire. There was a time limit, and he was hoping to have received this decision before he had to make that decision. Unfortunately, even with my help, we just could not get the decision any quicker. I think most of that was due to a lot of the turnover. I went through three adjudicators and two assistants within that time period, each time starting all over again, having them look at the entire claim all over again and so on. A lot of it does have to do with the new adjudicators coming in, no experience, and the turnover.
Mr Waters: From the employers side, what do you think the cost is?
Ms Fiorentino: In what sense?
Mr Waters: Well, let's say the Canadian Manufacturers Association. You represent a very large group of people. What do you think it would cost, in dollars, all of this backlog, not only in the human tragedy part, where people are going without money to survive, but what does it cost the other side? There must be a cost there.
Mr Howcroft: Sorry. It is almost impossible to quantify, when you take into account the thousands of person-years that are lost in just dealing with this enormous bureaucracy up at Yonge and Bloor. You just really cannot put a figure on how much time is lost, etc. There are just too many people dealing with the workers' compensation system to actually quantify it.
Mr Klopp: But it is real?
Mr Howcroft: Very real.
Mr Waters: That was partially what I wanted to try to get out.
The Chair: Thank you for your time this afternoon, for your contribution to this hearing process. It is a very limited process, a maximum of 12 hours that can be dedicated to hearing from people, engaging in debate and discussion within the committee and then preparing a report, so it is compressed, but your contribution has been a significant one and we thank you for coming, all of us.
Mr Howcroft: Thank you very much. We are glad we could make it on the witness listing.
The Chair: No problem.
Mr Howcroft: Well, almost no problem.
The Chair: This is another case of subpoena envy, I suppose.
COUNCIL OF ONTARIO CONSTRUCTION ASSOCIATIONS
The Chair: The Council of Ontario Construction Associations. Please tell us who you are. We want to hear from you and then have a chance and some opportunity to talk with you about what you have got to say.
Mr Frame: My name is David Frame. I am executive vice-president, Council of Ontario Construction Associations. To my immediate right is Marcelle Priestly, assistant safety director, Ellis-Don Construction, and a member of our WCB committee. To her immediate right is Carmer Sweica, manager, corporate risk and employee programs, Lackie Brothers, and chairman of our WCB committee. I will ask Mr Sweica to read into the record our submission.
Mr Sweica: The Council of Ontario Construction Associations, or COCA, as it is known, is pleased to have an opportunity to meet with the resources development committee today to share our experience on the issue of services being provided by the Workers' Compensation Board to workers and employers in Ontario.
COCA represents 47 construction, trade and local mixed-trade associations throughout the province. Our industry is Ontario's largest, with a total number of employers over 46,000, generating in excess of 580,000 jobs and $33 billion annually to the province's economy in 1989.
The council is very active on numerous provincial, legislative and regulatory issues on behalf of construction owners. These include many labour, environment, taxation and legal issues, such as the Construction Lien Act, etc, but the issue of workers' compensation, year in and year out, is the most demanding on both the staff and volunteers of our council.
I might mention that both Marcelle and myself are volunteers in this issue.
The WCB system, as operated in Ontario, is very complex, and both workers and employers regularly need a lot of help, direction and information to be able to guide them through the maze.
We have had an opportunity to review earlier submissions from construction trade unions, Locals 27 and 183. We certainly agree with their general conclusions that service levels in the board are totally unacceptable and the system must become more responsive to the needs of the client groups.
Please do not interpret these concerns to mean that the lack of service raises doubts about the quality of the staff at the board. On the contrary, the personnel are always dedicated and eager to provide quality service and solve our problems. However, for reasons I will talk about shortly, they are hamstrung in being able to do the job they would like to do.
The construction industry has very specific needs in overcoming some of our WCB problems. The industry, both management and labour, has worked very hard to develop systems of safety procedures to reduce and control accidents and thereby reduce the industry's dependence on WCB compensation. As you can see from chart A at the back of your presentation folders, the industry has made substantial improvements to reduce lost-time injuries by over 45% over the past 20 years. However, we still have some substantial problems.
Lost-time injuries in the construction industry tend to have a persistency of duration almost twice as long as those of other industries, and that is shown on chart B. Our research indicates that our injuries are of a similar rate of severity, but construction's short-term duration of jobs in the industry and lack of light or modified duty positions often block immediate reinstatement. It is our hope that we will soon be able to start to make substantial improvements when the construction reinstatement regulation is implemented, probably later on this summer. This regulation, as developed by labour and management working through the WCB, will establish standards for reinstatement in the construction industry.
However, more work has to be done in terms of being able to accommodate injured workers who cannot return to their pre-accident position. It is our hope that the construction ISU will be given the resources to develop expertise in accommodation of injured construction workers into new employment opportunities.
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We strongly believe in the essential reforms as put forward in Bill 162, particularly the vocational rehabilitation requirements which require management, labour and the board to work together to ensure early and timely placement back into the workforce. We are, however, extremely concerned that the board has not been able to meet its obligations on rehabilitation and communication and that, as a result, workers are losing important opportunities and employers are being assessed huge costs via awards on wage-loss provisions of the bill. This cannot continue. Bill 162 will only work if the board operates as a communications co-ordinator with the worker, employer, doctor and vocational rehabilitation. If all of these operate independently, or one does not work at all, the essential elements of Bill 162 will be lost. Workers will lose important opportunities for employment and employers' costs will run out of control.
Construction employers have experienced extremely high increases in WCB costs over the past 10 years. Chart C will indicate that these costs have soared over 300%, despite the significant reduction in accident frequency. Because of the impacts of a higher assessable wage through Bill 162, these costs will continue to climb as most of our members will pay an 18% to 20% increase in costs in 1992. If the board continues to fail to provide proper support to injured workers and properly implement the requirements under Bill 162, the costs will increase even more severely. Our workers deserve better and industry, particularly in economic times like these, simply does not have the resources to continue to pay for a system that costs more and delivers less.
This is an example of legislation or policies being developed only for the board to have significant problems in implementing them properly. We believe the reason for this failure is the significant stress that the whole of the WCB has been under since the implementation of Bill 101 in 1985. In the past six years, the workers' compensation legislation has been substantially overhauled, through Bill 101 and Bill 162, and, perhaps even more important, the WCB operations have been totally restructured so that the organization retains little resemblance to what it was only a few years ago.
These changes include, among others, the 1986 complete realignment of the WCB senior management positions and creation of three vice-president positions; the 1987 complete overhaul of service delivery systems, which included many new management roles at all levels; the 1988 implementation of the new claims adjudication structure through the nine ISUs; the implementation in 1989 of vocational rehabilitation strategies and medical claims adjudication; and the 1990 recreation of seven divisions with seven vice-presidents and the implementation of Bill 162's overhaul of benefits and pension systems.
We are convinced that these overwhelming changes, combined with extensive new automated systems and numerous policy and operational changes, have made it virtually impossible for the board to provide expected levels of service. The implementation of new imaging systems alone has caused incredible upheaval and has given little opportunity for legislative and regulatory changes to be substantially implemented.
It is vital at this time that new management shift gears by slowing down or temporarily stopping development and implementation of comprehensive new policies and procedures so that time and resources may be given to the staff to deal with the current responsibilities and implementation of acceptable service levels. Further legislative, technical or massive personnel changes at the board can only work to further delay the establishment of required service levels. Administrators need this opportunity now and the worse thing we could do is to propose more changes.
The minister has recently appointed Mr Di Santo and Mr King as chairman and vice-chairman. Clearly they must be given a mandate at this time to determine where the problems lie and how they will act to alleviate them. We recommend that this committee, rather than give a long list of recommendations for change, indicate to the board where service levels are inadequate and simply direct them to go out and improve these systems. Certainly this is the best vote of confidence we can give to the new administration. Mr Di Santo and Mr King could also be aided by a thorough technical analysis of the board's practices and systems.
As already recommended by the Employers' Council on Workers' Compensation, we recommend that the government undertake a complete assessment of the board's financial and service operation in the form of a value-for-money audit by the Provincial Auditor. Such a report would be extremely valuable for the board in producing a broad evaluation of its full operation. While other, less extensive audits have been undertaken by the Provincial Auditor on the WCB, none has been commissioned in the last seven years and certainly none has been as extensive as this. The value-for-money audit will "assess components of the management function related to economy, efficiency and procedures to measure effectiveness" through the whole of the operation.
Huge increases in funding have alarmed and shocked employers, while worker discontent with the system has grown. Such an audit will provide the administrators with direction as to how to better provide service while making more effective use of funds. We strongly recommend that the resources development committee fully consider recommending a full value-for-money audit in your report.
Thank you, Mr Chairman and members of the committee, for your consideration of our report. I hope we have some time to pursue in more detail some of the points we have brought up.
Mr Wood: Thank you for your presentation. I see that on page 5 you are critical of Bill 101 and Bill 162, which were put into place over the last five years, especially since 1985. I am just wondering, first of all, if major changes should be made to those particular bills to make them more effective as service to the clients.
Mr Sweica: Actually, we are not criticizing 101 or 162. We are all for them. The thing is the way they are being implemented.
Mr Wood: The previous presenters mentioned the fact that even though a claim is being held up, the employer keeps on paying the wages. What period of time do you think an injured worker should have to go without any money coming in from either the employer or from the WCB? What would be a fair period of time? We hear that some of the claims go on for three months, four months, six months or a year. I know a lot of people go from payday to payday. I am wondering what you think would be fair or if the employer should be paying the wages.
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Mr Frame: I think the problem really is related to adjudication of these claims. Surely the answer is not to say the worker can only go X amount of time, because some workers obviously could go longer than others. I do not think any should have to go any extended length of time. But what you should do instead is make sure that adjudication services and systems are there so that these are not held up anywhere near as long as they are right now in some cases. I think that is the key: proper adjudication on the front lines rather than making some sort of artificial determination in these cases.
Mr Sweica: If I may make a comment, Mr Chairman, I know of a large insurance company whose turnaround time on claims is 10 working days. Now, if the board could get to that level, I think everybody would be happy, because that is not out of the question.
Mr Wood: Just as a follow-up as well -- and it was not part of your presentation -- but one of the previous presenters presented a letter saying that the doctors and the chiropractors are fed up with the system, that apparently they are not getting their claims paid either, and they are refusing to treat the workers who are being injured. I am sure this is going to have an effect, especially on the construction industry, if a person is off and not being treated. How would you feel about comments like that which are being brought forward at this time?
Mr Sweica: That may have been true in the past, but I understand that the Workers' Compensation Board has changed its procedure of paying doctors now. The doctors are being paid by OHIP and it has nothing to do with workers' compensation. The costs roll through, mind you.
Mr Wood: This is a letter that I saw on 19 March --
Mr Sweica: That is a fairly recent change in the last six months.
Mr Wood: Okay, 19 March was the date of the letter, I believe.
Mr Klopp: You said here on page 7 that rather than doing a lot of studies, just make some recommendations for changes. One that seems to have come through a lot has been the assistant adjudicator. Many of the groups have said, either get rid of them or put them on full time. Would you see that as an example of a fair recommendation to give to Mr Di Santo to go on with rather than have that studied to death?
Mr Frame: We have heard this recommendation and it certainly should be looked at. I guess what we are also saying is give Mr King and Mr Di Santo the flexibility to go in and look at the organization, take the recommendations they are hearing -- take a look at that one, because you are right, it is being mentioned; I have heard it mentioned by two or three other groups -- and let them decide for themselves if that would deliver better service, better programs.
Mr Klopp: I think the value-for-money audit, as someone pointed out, is something that you start today but if it is going to be done right it is going to take about a year. That would maybe be one of the things that could give them an opportunity if they want to flex their muscle. We have heard it from so many different groups.
Mr Lessard: You have indicated that the compensation system is very complex for both workers and employers. Has anybody made any recommendations like that, specifically what could be done to make things less complex?
Mr Sweica: I think we have an ongoing dialogue with the board and some of their administrators, and invariably we are meeting once a month or twice a month or something, and these issues are being brought up. I might mention that, as you probably all know, the construction integrated service unit is dedicated to construction, and the only one in Ontario. We have had very good dialogue with that particular unit. We have done some training for some of the adjudicators from the employers' side. Labour has done some education from the workers' side, labour's side. We find that with the turnover, this has to be an ongoing thing, and they are looking at it again, so we are going to be dialoguing with the construction ISU to improve the situation.
Mr Frame: If I could follow up on that question, I guess one of the problems is that every time there are legislative amendments, by their very nature they tend to ask more of the system, put more demands on the board. The board responds by developing more systems, more policies, more procedures, which tend to make it more complex. That is part of the problem; there have been a lot of changes.
Mr Lessard: And that is why you are suggesting we should maybe let things continue. We can audit them, but not introduce any dramatic changes before we give it a chance to see how things turn out with the new chairperson.
Ms Priestly: We are not that discontented with the legislation, the regulations or even the policy, but what disturbs us is that frequently the suggestion is made that, "If it's not working, let's change it," instead of the first, primary question, which ought to be, "If it's not working, how can we make it work?"
We feel that first basic step has been overlooked in the system constantly for the past 10 years and we are saying: "Okay, now is the time. We are absolutely swamped with procedures and we are absolutely swamped with policies. Please don't give us any more. Let's just see if we can make this thing work now."
Mr Lessard: Your own industry has made efforts to develop safety procedures to reduce your dependence on workers' compensation. I know nobody would disagree that is a worthwhile goal. Is this something you have worked with the compensation board to try and achieve, or is this something you have done independently? If you have done it independently, do you think it is an area where the workers' compensation system could have some role to help you make changes to bring in safer procedures?
Ms Priestly: I think the workers' compensation system has already done that through Workwell.
Mr Frame: I think there are a great number of reasons why the industry has changed. Without a doubt, costs related to WCB combined with experience rating CAD-7, which has been in place for about six years now, have given employers the ability to better control the costs of their accidents. It is the work in part of the board and in part of the construction safety association, employers' groups and unions. There has been a bigger awareness of the costs of accidents: not just the monetary costs but the costs in terms of pain and suffering as well. I think everybody has responded to make the industry safer.
Mr Offer: I think all the previous questions and certainly the responses have addressed the issue in one way or another as to what it is you want or hope this committee might do after we finish our investigation and write our report. What I am hearing is that we should not be, at this point, as concerned with making it eight days, seven days or 11 months or 10 months, although they are all worthy things that we want to work for.
I am sensing from your presentation that what you are saying is that the focus of our report maybe should be a value-for-money audit. Let that take place, let that start to be used to uncover the focuses that will be later on examined to really have a fundamental impact in making the system work the way we all hope it will work. I just wonder if you might want to comment.
Mr Sweica: That is basically what we are saying. In other words, let's sit back from this thing and take a little breather and let's get this thing going properly. Because it seems, as we have mentioned in our dissertation, it is just a complete change, change, change, change, and you cannot do it. Even in private industry, you cannot do it. You have to sit back and let the thing digest.
Mr Frame: We are not saying all the systems that are there are right, but what we are saying is that the new administrators have to come in and make that evaluation; what is working, what could be made to work better and what maybe is not going to work. Then they can take an opportunity to use tools like a value-for-money audit to make it right.
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Mr Jordan: I thank you for your presentation. I see a bit of a contradiction here. "Leave the status quo; leave it alone. Let the new people work at it for a while and see what falls into place." But you also say that we "should indicate to the board where service levels are inadequate and simply direct them to go out and improve these systems." In light of that, the adjudicators throughout the whole discussion here come across as being understaffed, that the assistant is more of a blockage between the adjudicator and the person directly involved when he phones in, and in other cases. So instead of having, for example, 300 adjudicators, perhaps we should have 600, or just using these figures, instead of his having 300 files ahead of him, cut it in half. Let that happen and then do a value study. I do not think you need any study to see that there is an overload of work for the people there.
Mr Sweica: I do not know whether it is the case that more people are going to do the job better. They are all crowded and sitting on top of each other now. How can you put another 300 in some of the areas?
Mr Jordan: Now we are turning and saying it is a space problem.
Mr Sweica: No, I am not saying that.
Ms Priestly: I think what we are saying is that a value-for-money audit will help to determine those things. Perhaps the issue is partly space, or adjudicators' pay, or adjudicators' vacation pay or the level of training they are receiving. I do not think we can step back and guess which one of these things it is. A value-for-money audit is going to help us identify the components of adjudication, be it the quantity area, the case load, assistance, that they need two phones, whatever it is. Let's find out what it is before we start investing a lot of money, guessing what it might be and trying to rectify it.
Mr Huget: Just briefly, several presenting groups have mentioned the value-for-money audit, and I think Mr Jordan's point is quite valid. Many other groups have mentioned a shortage in staff, the case load and all those other things. When you talk about a value-for-money audit and you look at service to a client, how do you make the connection? In other words, if someone has been waiting a long period of time to get a workmen's compensation claim dealt with, how does this value-for-money audit address that person's problem? Define for me this value-for-money audit phrase. It is sort of a buzzword in this committee because at least four or five groups have brought it forward. But there has to be more to it than that and I think there needs to be some explanation of the value-for-money thing.
Mr Frame: If you would like, I could supply the committee with more information about a value-for-money audit. Very briefly, we quoted a sentence from the description of the auditor explaining a value-for-money audit. It is quoted near the bottom of page 8 where it is described as "assess components of the management function related to economy, efficiency and procedures to measure effectiveness." Where that relates to your problem of how come it is taking for ever for somebody to get service at the board, the problem is that the board is a very big bureaucracy and there are thousands of employees there, most of whom are to provide service.
If you look at the systems the board has in place and the persons it has in place, in theory it should have the personnel and the systems to provide a fairly high level of service. Obviously we know they are not. So we are saying there are obviously systems problems and maybe one of those systems problems is that they have only 300 people in the front-line adjudication when they should have 500, for instance, that they do not need those other 200 people somewhere else and they should be moved, or they should reallocate resources.
What we are saying is that rather than throw more resources where it appears they need more resources, let's take a look at the whole body, at the whole workings of the board and find out where it is not working and reallocate those resources or ask the audit to suggest where resources should be reallocated to make it work.
Mr Huget: Would I be correct in assuming that we are looking, really, at a productivity-efficiency sort of situation as being the main thrust of that?
Mr Frame: Sure. By efficiency and productivity you are not necessarily saying this employee is inefficient. You are saying they are not given the proper systems to be efficient, perhaps, or perhaps they are not given the proper information or whatever to be able to do their jobs. It is an investigation of all of that.
Mr Sweica: I might mention that in industry we call it bang for your buck, and that is the same thing.
Mr Huget: The industry I came out of called it bang for a buck too. When I refer to productivity and efficiency I, of course, do not necessarily get hung up on a person's day-to-day duties, but I would think workplace structures and management structures and all the rest of those things have some kind of place in that equation, so it is not just a simple employee productivity issue. But I have a sense that this value-for-money audit refers much more to the productivity-efficiency issues than anything else.
Mr Wood: Prior to 6 September I worked in industry for almost 29 years, and I did manage to get hurt one time. It ruined my record. Once out of the 28 years, and I was off for about five or six weeks. I was always under the impression, until I got involved in this and involved in the union, that if a person gets hurt in the mill, he goes to see the doctor or is taken to the hospital, and the bills are paid and he goes on compensation until such time as the doctor says he can go back to work.
I just want to know if you have figures as to what percentage you would feel are legitimate claims and what you would consider to be people coming into work in the morning and claiming that they actually hurt themselves on the job but it happened the day before. Do you have a figure on the percentage of those figures?
Mr Sweica: I do not think I could quantify that. No, it is just a guess.
Mr Frame: I do not think there is any realistic way to produce those numbers.
Mr Wood: I am doing it myself, I am phoning up the board and they are saying, "I have 200 or 250 claims on my desk." I say: "I only want you to look at one. Put the other ones aside and look at that particular one." I find it hard to believe there is that much fraud or accusation of fraud that the workers are not getting their money. Like I said before, as far as I am concerned, you get hurt, you go to see the doctor and the doctor sends you back to work, and you get paid in the meantime.
Ms Priestly: There is very little incidence of fraud. I actually work in industry and I deal with thousands of claims, and there is very little fraud. I would have to say that 99.9% of the claims are genuine. These days the issues are much more complicated. The issue is not whether or not you are genuinely sick or disabled; the issue is, is it compensable? Is it work-related? And so questions of fraud do not even enter into the equation.
Mr Wood: But the doctor or the specialist really is the one who should be making that decision, along with recommending to the adjudicator.
Ms Priestly: Certainly, and doctors have basically had very little input into the system so far. Maybe that is something a value-for-money audit will point out.
The Chair: Thank you very much. Thank you, Mr Wood. Thank you to the Council of Ontario Construction Associations for coming this afternoon, for sharing your thoughts with us. You have played an important role in the exercise that we are involved in, and we are all appreciative of that.
This meeting is adjourned.
The committee adjourned at 1749.