Committee Transcript 1994-Aug-29 | Legislative Assembly of Ontario

Workers' Compensation and Occupational Health and Safety Amendment Act, 1994, Bill 165, Mr Mackenzie / Loi de 1994 modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail, projet de loi 165, M. Mackenzie

Employers' Advocacy Council, London chapter

Mary Paterson, chair

Elaine Carver, policy chair

Steve Cryne, EAC executive director

London and District Labour Council

Jim Ashton, president

Gil Warren, board member

Brewery, General and Professional Workers' Union

Ron Blain, president

George Redmond, business agent

Novacor Chemicals (Canada)

Kathy Suslje, manager, Ontario government relations

Yugo Ivanovich, superintendent, occupational safety, health and environment

Workers' (Repetitive) Injury Support Team

Susan Attoe, president

Karl Crevar, president, Ontario Network of Injured Workers Groups

United Food and Commercial Workers, Local 459

Erna Moynahan, benefits representative

Jim Jewell, member and injured worker

London Chamber of Commerce

Del Wright, chair

Jim Thomas, chair, Bill 165 task force

American Federation of Grain Millers, Local 154

Jody Jones, workers' compensation representative

Dale Schoffer, member and injured worker

Ontario Public Service Employees Union

Diana Clarke, workers' compensation benefits officer

Cindy Haynes, chief steward, Local 108

Graham Smith

Canadian Auto Workers, Local 444

Ken Lewenza, president

Gary Parent, financial secretary

Dave Wilson, vice-president

Tom Dool; Sandra Safran

United Rubber Workers, Local 677

John Cunningham, president

Grey-Bruce Injured Workers Union

Dan Jordan, recording secretary

United Steelworkers of America, Local 8782

Ray Kitchen, workers' compensation representative

London Regional Psychological Association

Dr Tony Iezzi, president

Michel Lacerte

Sarnia Lambton Chamber of Commerce

Gerry Macartney, general manager

Jim Paterson; Dawn Janveaux

Communications, Energy and Paperworkers Union, Local 914; Sarnia and District Labour Council

Ken Glassco, president, Local 914 and council president

STANDING COMMITTEE ON RESOURCES DEVELOPMENT

Chair / Président: Vacant

*Vice-Chair / Vice-Président: Cooper, Mike (Kitchener-Wilmot ND)

*Acting Chair / Président suppléant: Klopp, Paul (Huron ND)

Conway, Sean G. (Renfrew North/-Nord L)

*Fawcett, Joan M. (Northumberland L)

*Ferguson, Will, (Kitchener NDP)

Huget, Bob (Sarnia ND)

Jordan, Leo (Lanark-Renfrew PC)

*Murdock, Sharon (Sudbury ND)

*Offer, Steven (Mississauga North/-Nord L)

Turnbull, David (York Mills PC)

Wood, Len (Cochrane North/-Nord ND)

*In attendance / présents

Substitutions present / Membres remplaçants présents:

Cunningham, Dianne (London North/-Nord PC) for Mr Turnbull

Fletcher, Derek (Guelph ND) for Mr Huget

Hope, Randy R. (Chatham-Kent ND) for Mr Wood

Mahoney, Steven W. (Mississauga West/-Ouest L) for Mr Conway

Winninger, David (London South/-Sud ND) for Mr Waters

Witmer, Elizabeth (Waterloo North/-Nord PC) for Mr Jordan

Clerk / Greffière: Manikel, Tannis

Staff / Personnel: Richmond, Jerry, research officer, Legislative Research Service

The committee met at 0933 in the Radisson Hotel, London.

WORKERS' COMPENSATION AND OCCUPATIONAL HEALTH AND SAFETY AMENDMENT ACT, 1994 / LOI DE 1994 MODIFIANT LA LOI SUR LES ACCIDENTS DU TRAVAIL ET LA LOI SUR LA SANTÉ ET LA SÉCURITÉ AU TRAVAIL

Consideration of Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act / Projet de loi 165, Loi modifiant la Loi sur les accidents du travail et la Loi sur la santé et la sécurité au travail.

The Vice-Chair (Mr Mike Cooper): Good morning, committee, and welcome to London. It's been suggested by the committee members that we do a rotation on questions to the presenters. Unless there are any objections, we'll proceed.

EMPLOYERS' ADVOCACY COUNCIL, LONDON CHAPTER

The Vice-Chair: I call forward our first presenters, from the Employers' Advocacy Council. Good morning and welcome to the committee. Just a reminder that you'll be allowed up to 20 minutes for your presentation. The committee would appreciate it if you would keep your comments somewhat briefer so that we have time for questions and comments from each of the caucuses. Please identify yourself for the record and then proceed.

Ms Mary Paterson: Good morning. My name is Mary Paterson. I'm the chair of the London chapter of the EAC. With me this morning to my right is Heather Hogan, first vice-chair; to my left is Elaine Carver, policy chair, and to our far left is Stephen Cryne, executive director, who's here today in a technical capacity.

The Employers' Advocacy Council is a non-profit, volunteer organization representing over 1,700 employers across Ontario. Our members include both small and large employers, as well as many public sector employers and employers from schedule 2. In London, we have 168 member firms.

We are extremely disappointed that the government has chosen to compile its own agenda for workers' compensation reform, as opposed to following the accord which both labour and management had agreed to.

It is our view that Bill 165 is only tinkering in a system that is bankrupt. If the Workers' Compensation Board was a private insurance company, it would likely be placed alongside Confederation Life.

Much has been said in the first week of the committee hearings and there have been some issues raised which we feel require clarification. The first is assessment rates. The point has been made that the average assessment rate in 1988 of $3.02 per $100 of payroll is lower than the 1994 rate of $3.01 per $100 of payroll. This is misleading if it is used to suggest that employers have enjoyed an assessment rate holiday. Reality is somewhat different if the impact of the increased earnings ceiling over the past several years is considered. As illustrated in the following table, the average across all industry has been increased by over 500%, hardly a rate holiday for employers.

Although not all firms are at the maximum levels, the increases experienced at the individual firm levels have been comparatively substantive. It must also be recognized that as the number of higher-paying jobs disappear, the average will drop. The recession has had a major impact on the decline in the average assessment rate over the past several years.

The purpose clause: The purpose clause contained in the accord would not require the WCB adjudicators to consider if the decisions being made were financially responsible, as suggested by some parties. The intent of financial responsibility was to impose accountability across all levels of the system but most specifically on the government, which we believe must have ultimate accountability to determine the scope and the alternatives to the scope of the system; to the board of directors in developing policy direction for the WCB consistent with the act; to the WCAT; and to the management of the WCB who are required to administer the system and implement the decisions and policies of the board of directors. The purpose clause contained in Bill 165 does not reflect that intent.

The provincial body of our organization has already submitted a full presentation on all aspects of concern with the proposed Bill 165. Our local chapter will focus on four issues which we feel to be of critical importance to the employer community and managing workers' compensation in the workplace. These are vocational rehabilitation, re-employment, medical reports and experience rating.

I'd like to call on Elaine to expand on that.

Ms Elaine Carver: Starting with vocational rehabilitation, for the record, employers do want to employ their injured workers. Unfortunately, Bill 165 will not help us achieve this. As set forth in our provincial submission, it is our opinion that the proposals under Bill 165 do little to address the real problems with vocational rehabilitation.

In 1993, the WCB spent $753 million on rehabilitation for about 26,000 claims. There's widespread concern that rehabilitation is not achieving its objective and is not being provided as efficiently and effectively as possible. Our concerns about the efficacy of the board's programs are confirmed by the large number of programs that are overturned on appeal to the re-employment hearings branch.

There is also concern with regard to the reference to vocational rehabilitation in the purposes of the act, section 1, which states: "The purposes of this act are...to provide for rehabilitation services and programs to facilitate the workers' return to work."

This cannot be construed to mean that the WCB's mandate for vocational rehabilitation becomes one of finding the worker employment as opposed to restoring the worker to a state of employability; nor can it be construed to mean that vocational rehabilitation and return to work are the primary focus or centrepiece of the system. The bill should clearly state that the WCB's primary responsibility is to make determinations of entitlement to benefits and services and to provide those services.

We are also concerned that the government has focused its attention on punitive measures rather than providing employers with the tools necessary to create return-to-work opportunities. The introduction of Bill 162 in 1990 created great complexity in the system for all parties, which has impacted on the levels of and effectiveness of services. In our local area, for example, case workers only have two out of five days in which they can be out in the field assisting employers and workers. The remaining time is spent in the office interviewing workers and completing paperwork. The employer does not fit into this picture.

The proposal to include the employer in the development of the workers' vocational plan, subsection 53(2.1), must be more than a paper exercise. It should be a cooperative process involving the worker, the employer and the WCB case worker, with the support of the worker's treating practitioner. The WCB's role must be one of facilitator to both the worker and the employer.

0940

We've heard submissions from worker advocates to this committee that if the employer cannot re-employ the worker, then the employer should not be part of the rehabilitation process. We disagree. It is a reality, even with the best will in the world, that not all workers will return with the accident employer. The employer, who is responsible for the costs of the claim, has a right to participate in the vocational rehabilitation effort.

The penalties proposed in subsection 103(4.1) for non-cooperation with vocational rehabilitation are regressive in our view and should be withdrawn. Employers do cooperate with vocational rehabilitation in good faith.

In contrast, it is our experience that worker cooperation is difficult to achieve. Typically, where there is a return-to-work plan that has been agreed to and the job has been ruled suitable by the case worker, who has seen the job at first hand and arranged for the appropriate functional abilities evaluations or had the WCB ergonomic specialist assess the job, if the worker does not cooperate and the decision is taken to discontinue benefits, this decision is generally overruled on appeal as the worker shows a new willingness to cooperate. Employers find this process to be extremely frustrating.

To penalize employers for not cooperating with a VR process so fraught with problems is a mistake. The solution is cooperation, not confrontation, which Bill 165 will serve to promote and engender.

Getting into re-employment, in our view the current act provides the WCB with the authority to enforce the re-employment provisions of section 54. Despite our requests for an explanation of why the current act does not provide the WCB with this authority, we have yet to receive a response from the Ministry of Labour. The proposed changes are arbitrary and provide the WCB with an authority which we view to be unnecessary and penalties which are regressive.

Under the proposals of Bill 165, vocational rehabilitation case workers, whose intended objective is to rehabilitate workers, will be expected to enforce the act. As proposed, the case worker will be required to determine whether the employer has fulfilled the re-employment obligation. This is not a proactive solution and will lead to conflict and adversity between employers and the case worker, whose primary focus must be on assisting employers and workers in the return-to-work process. The case worker's time is precious and limited. Imposing this extra burden will be detrimental to the rehabilitation process.

In our view, this government should be focusing its efforts on improving the efficacy of the present vocational rehabilitation programs and processes.

Additionally, Bill 165 does not address the conflicts that exist in the interpretation of the current act, particularly the differing interpretations by the WCAT and the WCB of the re-employment provisions of section 54.

It is proven over and over again that positive reinforcement brings forth positive results and negativity breeds negativity and conflict. This bill will only add to the complexity of the system and introduces more issues over which disagreements and conflicts will naturally arise, something that the PLMAC accord attempted to lessen.

With respect to return to work, if the government is serious about improving the opportunities for return to work, this amendment should require release of the medical information to the employer in all cases without the consent of but with the knowledge of the worker. There is no obligation imposed on the worker to provide the information or consent to its release, yet employers face stiff penalties for not meeting their re-employment obligations and for non-cooperation with WCB rehabilitation programs. Workers should be equally obliged to cooperate in every way. Failure to provide information requested pertaining to the return to work should have negative consequences on the worker.

The proposal suggests that return-to-work information is considered to be confidential medical information. The information pertains to the level of impairment, job readiness and physical capabilities. How can a statement such as "no lifting greater than 10 pounds" be considered confidential information? How will the employer be invading one's right to privacy when this information will enable a speedy return to work?

Requiring the worker's consent to this information will result in many employers relying upon the WCB to provide the information, which is frustrating enough today. This proposal will only add to the problem. There will be obvious time delays in providing the information, resulting in increased costs as workers remain off work for a longer period of time, when in all likelihood the employer has suitable work available. This so-called confidentiality will prohibit early intervention, which is part of the WCB's vocational rehabilitation mandate.

Overall, this proposal will prolong the return to work, thereby causing a greater financial burden on the employer and the system. Without access to the information necessary to do so, the employer will be unable to safely and expeditiously return an injured worker to work. Requiring the worker's consent only adds to the complexity and bureaucracy of the system and introduces yet one more issue in the system over which disagreements and conflicts will arise.

Experience rating: The current experience rating systems, NEER and CAD-7, promote a positive attitude to safety among employers and encourage the effective early return to work of injured workers. Employers who implement proactive safety practices and provide return-to-work opportunities are rewarded under these programs.

According to the WCB's NEER program study in 1990, it was found that there was "a substantial incremental impact on health and safety" and "a decrease in frequency rates" for those groups participating in the experience rating program relative to those groups not participating. While not all employers are participating in these programs, the programs have been an unqualified success in reducing frequency of accidents by over 30% since 1988 and have impacted on the reduction in duration in short-term claims by almost four weeks, from 16 to 12, in the last few years.

The current systems measure and reward results, which are objective. The proposed amendments to section 103 will, in our view, measure processes, which are subjective, rather than results. This will severely undermine the effectiveness of these programs which have been to date an unqualified success.

It should be noted that approximately 90% of employers in Ontario have WCB assessments of less than $100,000 per year. Many are small workplaces that will be unable to implement the programs referred to in section 103.1.

We are deeply concerned that the assessment of the programs referred to under section 103 will be delegated to the Workplace Health and Safety Agency to develop accreditation and enforcement and auditing provisions. This institution is viewed as a failure and the source of great controversy in the employer community. Delegating this power to the WHSA will only add to the difficulties that employers have with the agency and will be vigorously resisted.

If we are to continue to have programs that are effective in meeting the primary objectives of accident prevention and re-employment of workers who are accidentally injured, it is critical that the existing programs continue as presently structured, without amendment.

Ms Paterson: In conclusion, Bill 165 does not provide employers with the necessary tools and cooperation required to ensure effective rehabilitation and safe return to work through education and availability of effective resources. On the contrary, the bill imposes more penalties on employers and yet more non-rehabilitative tasks on the case worker.

These are not solutions to the very complex and difficult task that employers face in returning workers to the workplace. Employers need more tools, not more rules.

Political interference in the system has resulted in organizational paralysis and a lack of effective governance and administration of the system. Bill 162, for example, implemented in 1990, has been incredibly complex for the WCB to administer, and its implications are not yet clear. That bill was put into place without full consultation with the employers or with the people administering the act, resulting in chaos and fiscal uncertainty within the system. Bill 165 is not a solution; if introduced, it will only add to the problems.

Based on the foregoing arguments and the main submission of the EAC, we urge this committee to recommend that Bill 165 be withdrawn and to return to the proposals presented to the government by the employer community last November as the basis for further discussions on WCB reform.

Other jurisdictions, faced with far less serious WCB problems, have taken the very difficult but necessary decisive actions to return their systems to financial stability and thus security. The magnitude of Ontario's problem and impact on our economy dictates that similar decisive action, which may prove to be unpopular, be taken to solve the crisis in our workers' compensation system.

Mr Steven Offer (Mississauga North): Thank you for your presentation. Recognizing the shortness of time, I'd like to go right to page 5 of your presentation, which speaks about re-employment, section 10. Your first paragraph speaks to an issue that:

"In our view, the current act provides the WCB with the authority to enforce the re-employment provisions of section 54. Despite our requests for an explanation of why the current act does not provide the WCB with this authority, we have yet to receive a response from the Ministry of Labour."

My question is going to be basically twofold. The first is, could you please expand on what this particular issue means. Secondly, I would like to ask officials from the Ministry of Labour as to whether they can address the very real issues that have been brought forward by the employers' council.

Mr Steve Cryne: I'd like to respond to that, Mr Offer. With regard to the first part of your question, part of the accord said that the employer community was of the view that section 54 does provide the WCB with sufficient authority to enforce the re-employment obligations. That was stated very clearly in the accord. What was said further in the accord was that if it was found that the WCB did not have sufficient authority to enforce it, then an amendment should be made to the statute.

We've yet to receive an explanation, and I guess this is the response to the second part of your question, from the Ministry of Labour as to why it feels the current statute, as worded, does not provide the WCB with that authority.

0950

Mr Offer: Well, then, as per the second question, let us use this opportunity to inquire from the ministry officials as to the particular point brought forward by this presentation.

The Vice-Chair: The ministry will provide that?

Ms Sharon Murdock (Sudbury): We will.

Mr Offer: We're not getting it now?

The Vice-Chair: Okay, thank you. Mrs Witmer.

Mrs Elizabeth Witmer (Waterloo North): Thank you very much for your presentation. I think it's excellent, and it's obvious that those of you who are involved with the system probably know it as well as anybody else: I think you've accurately demonstrated that this bill before us today simply increases the bureaucracy. It's very complex, it's very confrontational and it really doesn't achieve the primary purpose of accident prevention and getting the worker back to work.

You've indicated you would prefer that the government give you the tools to do that job, to get that worker back to work as quickly as possible and to help with the rehabilitation. What does this bill not do that you would have liked to see within the context of the bill?

Ms Paterson: I guess from an employer's perspective we're looking at being given or told what to do as opposed to being involved in the process from day one. Unfortunately, some of the experiences and problems that interfere with return to work are delays in decision-making which result in an inability to obtain the information that you need. Again, getting back to medical confidentiality, often you experience a tug of war between what information can be obtained from a physician and what you as an employer have for return to work even on a short-term basis or a progressive basis.

What we'd like to see is a little more, I guess, confidence in the employer on the board's side and through legislation from the government that we can, as an employer, work with the worker, the doctor and the board in trying to start from day one of the injury. One of those tools would be just providing some of that medical information regarding some progressive return-to-work plan, not something that would start four, six, maybe even sometimes eight weeks after an injury, something which normally will tell us -- we as employers sometimes have access to a consultation or medical consultant -- this person should be back within two weeks, and yet three months down the line we still don't know why this person is off, only that the physician is telling us that the person is off.

We'd like to see something more in terms of medical information from the board, perhaps even assistance in the way of not having to wait for a decision but maybe getting involved from day one. I think the way the bill is written right now doesn't provide for that.

Mr Paul Klopp (Huron): Thank you for your presentation and those comments you made right now. I think we can agree, at least I can agree with those. They seem to make sense to me also.

At the beginning here it says that the government should have listened to the accord with both labour and management, and then at the very end of the report it says you wish the government would take this bill and withdraw it and then go back to the employer community, that the government should listen to "the employer community group last November as the basis for further discussions." Are these one and the same thing, the labour-management accord and then at the end here, when you say we should scrap this and go "to the proposals presented to the government by the employer community" groups "last November"?

Mr Cryne: No, they're not, Mr Klopp. They're entirely different documents. The accord that was struck between labour and management in March of this year was presented --

Mr Klopp: March? Okay.

Mr Cryne: It was presented in March of this year to the government as a consensus document. We're of the view that Bill 165 does not reflect that consensus and therefore it does not have status. We're referring you back to the proposals that the employer community made to the government as the basis for substantive reform to the system.

Mr Klopp: What are the differences between the accord that labour and management made and --

Mr Cryne: There are a number of issues that could not be resolved, as you know, in the accord. I believe the committee does have a copy of the proposal which we presented to the Premier. It was submitted by the business steering committee on the first day of your hearings last week. That was a very comprehensive program which, in our view, would have put the system well back on track and would have provided for improved rehabilitation; it would have improved service delivery; it would have brought the system back on to the secure financial footing which we believe is necessary for the future, not just for the benefit of employers but for workers as well.

The Vice-Chair: On behalf of this committee, I'd like to thank the Employers' Advocacy Council for its presentation this morning.

Mr Offer: Just on a point of order: When ministry officials respond to the question that's been brought forward by the employers' council, how is it going to receive that response?

Ms Murdock: As we've done in previous committees, during the presentations made by presenters. It's their time. The ministry provides most of its answers, that I have seen in other committees and I presume in this one, in writing to the clerk of the committee and the clerk submits it to all members of the committee.

LONDON AND DISTRICT LABOUR COUNCIL

Mr Jim Ashton: First of all, let me welcome the committee to London. Thank you for the opportunity. In particular, let me thank David Winninger, who's to my left sometimes, and as always to my right, Dianne Cunningham, one of the members of your committee.

Interjection.

Mr Ashton: That's true. I see they've got it straight this time.

My name is Jim Ashton. I'm president of the London and District Labour Council and the Canadian Auto Workers union. To my right is Gil Warren, who's executive of the labour council as well as a member of the machinists' union.

Before the brief is started, I would just like to indicate that we recognize the time constraints and we know we're not going to be able to touch on the wide number of issues that are included in Bill 165. We'll attempt to touch on some of them. At the end, before we get into questions, we'd like to take a couple of minutes to add to the brief.

Mr Gil Warren: Good morning. Jim and I are here today to express our views about Bill 165, amendments to the Workers' Compensation Act. Today we're speaking on behalf of the more than 20,000 London and area workers who are members of the labour council. We will address specific aspects of Bill 165 in a few minutes. Our total presentation will take about eight minutes. But first of all we would like to put this bill within the broader political context.

Once again, workers and the labour movement are defending another long-established right, financial security if injured on the job, from yet another attack by the corporate sector. For 15 years, working people around the world have suffered as a result of the policies of Thatcher, Reagan and their like.

Everybody seems to think alike today: the business sector, the political sector, the media. A corporate mentality pervades society. "There is no alterative to what is happening" is the idea. We are here today to say that there are alternatives and there is opposition to a corporate agenda that, in essence, is nothing more than a crude attempt to transfer wealth and power from working people to the corporations.

How is the business campaign against workers' compensation going? Quite well so far, but we are going to do our best to turn that perception around. We cite as an example of the business campaign some of the coverage of these hearings. Last week, on Tuesday, August 23, CFPL-AM radio London, in its 8 am broadcast, said, "Labour Minister Bob Mackenzie defended legislation to cope with massive debt problems at WCB."

Here we see the corporate agenda at work. The very powerful media sector has absorbed the business propaganda line that WCB is "in debt." Reality is distorted, meanings are twisted, definitions become unclear and language debased. WCB is not in debt. Unfunded liability does not equal debt. The WCB has in fact a $6-billion surplus. We in the labour council find this aspect of the corporate campaign especially galling. There is an amazing parallel here with the whole issue of "government debt" and the need to "cut back on social spending."

1000

First of all, the corporate sector creates a policy influencing government thinking that corporations should not pay very much tax. Then the idea is put forward that massive unemployment is a good idea to control inflation. Governments begin to run short of cash in a self-induced depression and suddenly the corporate sector says, "Cut social planning," rather than raising their taxes and fighting for full employment. The same thing has happened in WCB. Unfunded liability is simply a prediction that some WCB responsibilities 20 years from now may not be payable if WCB stops today and there are no more contributions. It is not current debt.

The business sector in the past argued that it supported unfunded liability because it did not want large amounts of cash tied up at the present to pay for future obligations that could be dealt with in a pay-as-you-go manner. Business during the last 10 years has changed its attitude. Unfunded liability has become "debt" at the same time that business has pressured government to reduce premiums. The simplest and fairest way to deal with unfunded liability is to collect more money, not cut benefits. We feel that the ultimate corporate objective is to slash WCB benefits and to privatize WCB. This is totally unacceptable to working people.

The unfunded liability situation at WCB has actually improved in the last 10 years. The liability, when expressed as a funding ratio of assets to liabilities, has gone from 32% to 37%, and future predictions predict a ratio with 55% by the year 2014. Unfunded liability is common practice in the private insurance business and we would like to see some comparisons, but unfortunately much of that information is not public. We also note that some critics of WCB accounting practices feel that WCB is including too many non-pension obligations in its definition of unfunded liability and therefore inflating the liability.

Bill 165 tries to use the Friedland formula to reduce cost-of-living pension benefits to many workers. We do not endorse this idea. Friedland was designed for retirement pensions where the long-term effects of inflation are much less than the case of a disability pension applied to a worker who is only 20 or 30 years old. Especially unacceptable is the 4% cap on inflation protection if inflation is high. This government, when it brought in new rent control legislation, felt the need to protect landlords from high inflation. Poor injured workers expect the same treatment. Eliminate the 4% cap.

A comment on subsection 1(0.1), which is the purpose clause of this bill. We support the present wording. The fundamental purpose of WCB is to provide a service to injured workers. While good financial management is a priority, it does not supersede the objective of service. The solution to keeping WCB financially viable is to increase premiums and reduce the number of new claims by focusing on health and safety, accident prevention, worker rehabilitation and a return to pre-accident employers. Vast amounts of administrative moneys could be saved if we had a universal government-owned disability insurance program as soon as possible. It would also cut down on the bureaucracy.

We would like at this point to examine how the government of Ontario got to this particular point in the very difficult negotiations to bring in changes to WCB. The Ontario Federation of Labour and labour members at a Premier's advisory committee made very significant compromises to long-standing policies to come to an agreement. Injured worker groups and many of the unions that belong to our labour council have opposed these concessions as going too far.

The improvements in this bill to vocational rehabilitation, re-employment and pension supplements must be retained. The business community must not be appeased by this government with further unnecessary concessions. In fact, improvements that are pro-injured worker must be made in a number of areas in this bill if there is to be any hope for greater labour support. Subsection 8(7.1) of this bill is designed to prevent a worker from drawing WCB from two provinces over the same injury. We support this idea but are concerned that the present-day wording could result in other benefits, such as Canada Pension or private disability insurance, being cut off. Also, a small-percentage pension from one jurisdiction for a total disability that was caused by working in two jurisdictions over many years should not preclude a larger-percentage pension from the jurisdiction where the greater part of the injury occurred. An example of this would be a construction worker with a repetitive strain injury who worked in two provinces.

Sections 51 and 63 deal with a physician providing medical information to employers. We feel that this information should be provided only when the employer has implemented a board-approved return-to-work program. Even so, we are very concerned that in non-union situations injured workers may feel coerced into agreeing to provide information. Great care must be taken in implementing this section to prevent employers' access to medical information being used against injured workers.

We support the general spirit of section 53 amendments to force mandatory participation by employers in vocational rehabilitation. We do not feel that employers should be allowed to interfere in vocational rehabilitation if the employer is uncooperative -- subsection 53(10). We also feel that subsection 53(13) should be changed so that assistance to the worker can be extended for six months at the discretion of the board and not the employer.

Subsection 54(11.1) and subsection 103(4.1) deal with re-employment and granting new powers to WCB to investigate non-compliance by an employer. We support this section. Employers who are presently fulfilling their re-employment obligations are currently at a disadvantage to non-compliant firms. A mandatory provision will address this problem.

An area of great concern within the labour movement is the relationship of the Workers' Compensation Appeals Tribunal to WCB. The route of appeal to WCAT decisions is the court system. The current section 93 allows the Workers' Comp Board of directors to attack WCAT decisions. Section 93 must be deleted to allow WCAT independence. Pensions for disabled workers who are over 70 years old and did not return to work after injury should also be included in the $200-a-month pension increase -- section 147. We support the provisions in this bill to increase benefits by $200 a month for those workers entitled to a subsection 147(4) supplement.

On the issue of experience rating, we support the spirit of this bill in clauses 103.1(2)(a)(b)(c) and (d), where an attempt will be made to assess the employers' willingness to promote health and safety, industrial hygiene and first aid. We are concerned, however, that the process of enforcement will become bureaucratic and ineffective. The official Ontario Federation of Labour convention policy on this issue is to push for a flat-rate assessment policy.

The London and District Labour Council would like to repeat its position that WCB should be extended to all workers in Ontario. The British Columbia New Democratic government extended coverage last year and it should be done here as well. Currently, 700,000 Ontario workers are denied WCB. Increased revenues would also help to deal with unfunded liability problems.

In conclusion, there are parts of this bill that we support and parts that must be changed. There can be no further concessions to business. Re-employment and vocational rehabilitation sections must be strengthened in order to gain wider labour acceptance.

By focusing on non-existent debt, the priority of coverage to injured workers is displaced. This is a disservice to injured workers. If the objective is to meet the needs of injured workers, the priority should be re-employment and prevention. A great advantage to this focus is that it also is the best way to control costs.

Thank you for taking the time to come to London and hear our perspective on Bill 165. Brother Ashton, as full-time president of Local 27, Canadian Auto Workers, deals extensively with WCB problems among his members. I also have helped advocate for injured workers dealing with WCB. We would welcome questions at this point and we'd be happy to relate some of the problems individual workers have had in dealing with the present WCB system.

First of all, Jim would like to make a couple of comments and then we'll be happy to deal with questions.

Mr Ashton: I think it's all right if we go ahead with the questions, given the time that we seem to have left. So I'll leave that.

1010

Mrs Witmer: Thank you very much for your presentation. I appreciate your concern for the workers you represent. However, I do find your presentation somewhat confrontational. It seems to be indicative of the bill that we have before us.

You fail to recognize that the unfunded liability is a very serious situation. It was first acknowledged in the 1993 annual report that the Provincial Auditor put forward, where he said that plans must be developed to attack the unfunded liability as quickly and effectively as possible. Again, I would just remind you that the consequences of not dealing with the unfunded liability could have an impact on the province by reducing its ability to access the debt market.

So it is a very serious problem. We only have to take a look at what happened to Confederation Life to know that we need to get our financial house in order, because if we don't, there simply will not be money available to pay injured workers in the future, and we're all concerned about the injured worker. The benefits won't be there. So I'm surprised that you don't have any concern whatsoever.

You talk about the fact that experience rating is not something you fully support and you're pleased with the change the government's made. Are you not aware of the fact that the accident rate and the frequency have all decreased? Why would you not want to continue to support experience rating as presently in place? It's helped the injured worker get back to work more quickly. It's reduced the number of accidents.

Mr Ashton: That I guess sounds good, but in reality that is not the practice. I mean, I deal with the board and with injured workers. I also sit on what is called the regional evaluation centre in London, which attempts to get injured workers back to work and evaluate them as to what they can do. That isn't the reality of what's happening out there.

The problems are that, for starters, we have a system that doesn't adjudicate injured workers for at least 12 to 16 weeks, if they're lucky. So now we have workers sitting out there four months, and particularly with musculoskeletal and RSI injuries we see a long and delayed problem in terms of getting people there. If and when we get some kind of decision from the board, then we end up nine times out of 10 having to go to a hearing, for example, on the whole question of suitability.

You talk about employers cooperating. I guess that's where I have the problem. There are some who do. Unfortunately, most see this bill as a way to sidestep their responsibilities, quite frankly, and to slash and burn, as they've done with UI and other things.

The reality is, I have handled probably 10 appeals on suitability to hearings levels. My vice-president, who also handles them, has done about the same number. We have yet to lose one. We haven't lost one yet, which tells me something about what is wrong with the system. We are waiting too long, we're taking too much time, we are not getting the cooperation.

I would use Windsor as an example in my union, which negotiated an agreement with Local 444, with the Chrysler Corp. Over the last four years, they have reduced their experience costs by almost 50% because they worked with the union, they worked with the workers, they attempted to change ergonomically the jobs where there were problems. They had somebody full time from the union there to assist those workers, to get them back to work as soon as possible. It has made major savings, but it seems to me the direction you seem to be advocating is that we go back to the old way of doing things. The old way, which is the way it is now, is not working.

As for the unfunded liability, you're making the presumption that somehow the WCB is going to close and fold up its doors and go away tomorrow and we've got all this funding out there. If I had a $100,000 mortgage and $37,000 in the bank, I think I'd feel quite comfortable. I think most people would feel quite comfortable. I think the way we have to deal with the problem is to get people back to work earlier, to be treated properly earlier, to get the proper medical attention earlier and to get the claims adjudicated much quicker.

Mrs Witmer: Well, that's exactly what the employer community is looking for.

Ms Murdock: Thank you for the presentation. I just have two quick areas I wanted to ask about. The 4% cap that you mention on page 3: Since 1980 it has never gone beyond 4% except twice, so the 4% cap in reality -- I'm wondering why you would feel to eliminate it would resolve much of the issues.

The second part of it is in terms of the medical reporting. I know there's been a lot of mixup just on the basis of how people have been commenting upon the medical report under Bill 165. They're comparing it as equal to the present system of medical reports under the existing legislation and that this would be in cases of early return to work, early intervention within 45 days kind of thing, and there would be a group of health care givers and workers, employers and the board who would set up a form that would strictly set out the restrictions and the capabilities of the worker in regard to the particular return-to-work position or modified work program. I'm wondering how you feel about that, based on what's in your presentation.

Mr Warren: I'll just respond to that. The thing about the 4% cap is, yes, we have low inflation right now, but there's no guarantee that high inflation won't return. I mean, it was built into the Rent Control Act; it's built into many things. If inflation goes up, the assessments the WCB gets will go up. Those assessments are adjusted for inflation, so we don't see why, if WCB's revenue is inflation-adjusted, the benefits are not going to be inflation-adjusted for high inflation. It's just prudent as a government to plan for all scenarios, including a high inflation one. To say, "It's not high right now so we don't have to worry about it," I don't think that's a solution.

In terms of the medical reporting, we're concerned that you could have a large employer with 2,000 workers or something like that that is participating in return-to-work programs and vocational rehab and is asking for medical information and is getting it, and things are working out for 99 of those employees, but there's one employee there who maybe can't come back to work for over a year, like, the medical prognosis is it's going to be at least a year before that person can come back to work. If the employer gets hold of information like that, they may go for a non-punitive discharge. They may fire that employee because he just can't be back to work within the next year, and might get away with it. So that's a concern, that if that information gets to an employer it will be used maybe not against all the workers who are on WCB but some of them that the employer has picked out that for totally different reasons they want to discharge. It could be because they're a union activist or anything else. So there's a concern there. Just on the --

The Vice-Chair: That's it. Mr Offer.

Mr Offer: Thank you for your presentation. I want to touch on two areas and I'd like to get your thoughts on this. I believe the unfunded liability is important in so far as affordability is concerned and in so far as the evolution of workers' compensation is concerned. So I believe it's important both to the employers and to the workers in this province. However we want to cut it, we've heard different estimations as to how the unfunded liability is growing, maybe $1 million, $2 million, $3 million a day. That would mean that from this day to when these committee hearings began a week ago, the unfunded liability will have increased by something in the area of $7 million to $21 million.

In terms of your concerns about issues around comparing it to debt, I think there's a lot of discussion that has to take place in that area, but employers are, as part of their assessment, paying a portion towards unfunded liability. So your analogy is interesting, but employers are indeed paying a portion. So I'd like to get your thoughts basically on why we should not do anything with respect to unfunded liability or indeed not be concerned.

The second issue I want to talk about is your eloquent argument around the Friedland formula and how it's going to be hurtful to the injured workers in this province. The question that I have is, if the government refuses to move off of the changes that are found in Bill 165, in other words, if the government continues to push forward with the Friedland formula, should this bill be supported?

Mr Warren: I'll just quickly respond to that. Let me quote from our brief again, because you guys missed it, "While good financial management is a priority...." We didn't say, "Don't worry about unfunded liability," we said, "While good financial management is a priority," the top priority is servicing injured workers. We're concerned that WCB be run in a responsible manner. We're not saying it's not a concern. But we're saying that there's a solution, and one of those could be to raise premiums. That's the concept nobody wants to talk about, all right? Corporate profits are up, the corporations are prospering, but let's not talk about raising premiums.

In terms of the Friedland formula, there's a concern there that if you're a worker who's 64, it's not going to impact them very much, but if you're 20 and you're looking at a long-term pension, it will. So it's quite a concern to us.

Just to return to the experience rating question, what we're saying is, we have an existing experience rating program in place. We support this bill that it be expanded to include whether employers are participating in re-employment and other things.

1020

The problem is, the chamber of commerce comes up with statistics saying that the experience rating system is working, but we see a process where workers are in a situation --

Mr Offer: I'll just cut in --

Mr Warren: But this is an important thing to respond to.

Mr Offer: Are you going to provide an answer to my question as to whether we should support the bill if the government refuses to take away the Friedland formula?

The Vice-Chair: Excuse me, Mr Offer, but there is no more time for a response. I might remind the committee members that if they want responses, they're going to have to keep their questions more brief and concise. On behalf of this committee, I'd like to thank the London and District Labour Council for their presentation this morning.

Mr Randy R. Hope (Chatham-Kent): Mr Chair, while we wait for the next presenters to come forward before the committee, on page 3 of their brief that was just presented to us dealing with the unfunded liability as a common practice in private insurance business, I'm wondering if through legislative research it's possible to obtain this comparator that has been brought forward in this presentation, if there's a way we can get information which gives us some information that was made reference to on page 3 of the presentation that was just before us.

BREWERY, GENERAL AND PROFESSIONAL WORKERS' UNION

The Vice-Chair: I call our next presenters, from the Brewery, General and Professional Workers' Union. Good morning and welcome to the committee. Please identify yourself for the record and then proceed.

Mr Ron Blain: Yes. Good morning. My name is Ron Blain. I'm the president of the brewery workers' union, Local 1.

Mr George Redmond: I'm George Redmond. I'm the business agent for the Brewery, General and Professional Workers' Union in the London area. Mr Blain is going to give our presentation this morning.

Mr Blain: Bill 165, An Act to amend the Workers' Compensation Act and the Occupational Health and Safety Act: We would like to thank the committee for this opportunity to bring forward the views and concerns of the members of the Brewery, General and Professional Workers' Union in the London area with respect to Bill 165. We would also like to commend the government for proceeding with what we feel are progressive changes in workers' compensation in a number of areas with Bill 165. However, saying that, we are also concerned at some of the limitations in some of those changes and feel some are too regressive, particularly in areas such as reducing indexing. We will address those concerns in more detail later.

Realizing that increasing costs in workers' compensation and health and safety need to be addressed, we commend the government for recognizing the need for some change now and further examination of the compensation system through a royal commission. Significant change is occurring in our economy not only in how we work but in what sectors of the economy we work in. The trend towards service sector jobs, 60% of new jobs created in London in 1993, and particularly part-time work, 55% of new jobs created -- see appendix C -- seem to be the most prevalent type of new employment. We must find ways to ensure all workers have access to compensation. Some of the major issues a compensation system must look to with a royal commission should include such issues as coverage, because of the changing trends in employment, the development of a universal disability plan and reducing the adversarial roles created with workers' compensation. Causation should not be the issue; compensation should be.

Many feel this opportunity should be to simply trim costs through reduced benefits. We, on the other hand, embrace the opportunity to improve the system for all stakeholders, both employers and workers, to make jobs safer and reduce the overall cost of the system. This can be accomplished not simply by cutting back benefit levels but by decreasing the need for them. We do not want short-sighted solutions for poorly-thought-out or rash goals.

Instead of reducing benefit levels, we need to look at ways to make the system work better. There is a disturbing trend in the lack of re-employment post-Bill 162, where 78% of workers who are out of work for one year or more remain unemployed. These workers are eligible for FEL awards when they are not returned to work, as you can see from the projections in appendix B, the single largest cost to the workers' compensation system.

In accounting and financial terms, we talk about costs with terms like "big bucket items" or refer to "tall chimneys" on graphs. It is simple common sense to address your most expensive issue when you are trying to cut cost out of the business. There is no doubt that the "big bucket items" and "tall chimneys" of the workers' compensation system are FEL awards.

There are only two meaningful and real ways to address these cost issues, and that is to either return an individual to comparable earnings, within 10% of pre-injury earnings, with the pre-accident employer or to have successful vocation rehabilitation so any FEL award is minimized or not required. We must stress we are talking real jobs or job offers here, not phantom jobs the board deems available. We're talking about real jobs with real income.

If we look at the FEL projection in appendix B, "Assuming Reduction of FEL Benefits by 1%," you see a reduction of 1% creates a saving of $417.2 million. If we reduced FELs by 10%, that savings becomes $4.172 billion. Returning injured workers to meaningful, comparable work not only reduces costs but maintains the intent of the Workers' Compensation Board.

The second prong of the "big bucket issues" is that of addressing how the board recognizes employer efforts to reduce WCB costs through experience rating. The concept is an admirable one, but it's also a problematic one. The current system does lead to underreporting of accidents, failure of employers to register, unnecessary appeals and a general lack of improving the workplace practices unless a specific and normally short-term cost savings can be attributed to it. The current system of experience rating does little or nothing to reward efforts to improve good health and safety practices. It may sound silly, but it rewards luck, not effort, in achieving a good accident record.

Subsection 103.1(1) of Bill 165 addresses the lack of direction in the current experience rating programs. Instead of only looking at the issue of cost, it begins to implement the fundamental underpinnings of experience rating, whether a large or small employer: good health and safety practices, vocational rehabilitation programs and actual return-to-work programs. These changes will focus real cost savings in workers' compensation ratings costs short term and reduce systemic costs that run through the entire workman's compensation system long term.

Although not suggesting a model return-to-work program, we would like to give you a concrete example of what a return-to-work program can actually do.

A return-to-work program was developed at Labatt's London in cooperation with management and implemented in 1992. The impact, I think you will agree, has been dramatic. The numbers we will be talking about are for the calendar year ending in 1993.

In the area of weekly indemnity, WI, the average claim length was 25 to 30 days. After implementation of the return-to-work program, the average WI claim length was reduced to 12 days, a 40% reduction in duration. It is the first time ever that Labatt's London has been under Confederation Life's average claim length for the manufacturing sector.

WCB claim length has a similar success story. Average length of claims have gone from 30 to 32 days in duration to 25 to 26 days in duration. That number is even better than it looks. Long-term claims, those injured prior to Bill 162 with no return-to-work obligation, are included in the length of the claim. Using a worst-case scenario, we are looking at a 19% reduction in WCB claim length.

As you can see, not only will the changes produce significant reduction in compensation costs, the savings flow through the insurance side of the business to produce a remarkable benefit for employers and dignity for injured workers.

1030

These savings tend to produce a synergistic effect on the workplace. As more accommodations take place, the benefits of those accommodations often extend to other workers in their place of employment. By way of example in the brewing industry, when we install lift tables for pallets, this not only allows an injured worker with a back disability to return to work because they don't have to bend over to lift cartons up; it also reduces potential new claims. Other workers now benefit from the improved method of lifting and we avoid future workmen's compensation claims.

These lift tables have been available for years. Until we had an obligation to return injured workers to work with accommodation, Bill 162, we didn't get them because there was no immediate cost saving. It doesn't go on today's bottom line for profits; it goes on tomorrow's. Section 103.1 will lend needed assistance to ensure we capture these long-term savings.

Prior to Bill 162, many injured workers faced a dim prospect of finding employment if they had a significant impairment and the board felt vocational rehabilitation was unwarranted. Companies acted independently to return someone to work, with no obligation to re-employ. Over 400,000 pre-Bill 162 workers with permanent disabilities and no vocational rehabilitation remained unemployed after their injuries.

Bill 165 tries to address this with the old act pension increases of $200 if someone is eligible for subsection 147(4) supplements. We can appreciate the concern for increased costs, but I think you have to view this in a humanitarian light. Many of these injured workers are required to go on social assistance to survive. Work injuries created the initial need for these pensions. It should be workmen's compensation that bears the cost of the injury, not the social assistance system. WCB should recognize the hardship faced by injured workers. A $200 increase is a beginning towards that end and a recognition by the public of where the onus should lie.

We would like to take this opportunity to address some of our concerns with Bill 165. We will attempt to be brief here and will only touch on our other concerns. Please refer to appendix A for more detail.

Section 3, amending section 8 with the addition of subsection (7.1), is unclear as to what may happen to an aggravation or deterioration of a previous condition. Will it eliminate private insurance?

We have concerns with section 8, amending section 51. There need to be safeguards on employers who don't have a real return-to-work program and are only accessing medical information to thwart a return to work.

Section 9(10) should include the worker's representative in the development of a vocational rehabilitation program for a return-to-work program.

Section 10, amending subsection 54(11.1) -- "the board may determine" -- is a significant move in the right direction. Whether in a unionized or a non-unionized atmosphere, returning to work can be a very complex process and expertise can be of immense benefit.

Section 11, amending section 56, is a major move in the right direction. The stakeholders will be responsible for the overall operation of the board.

Section 17, amending subsection 65.2(1), goes hand in hand with section 56. This will ensure that the board continues to operate within its mandate and gives it the necessary procedures to continue to look at its role as it reviews the memorandum of understanding.

Section 21, amending section 72.1, adding mediation, will hopefully reduce the need for section 53 appeals and help the system work more quickly.

Section 27, amending section 103, will put some teeth into vocational rehabilitation.

Section 33, amending subsection 148(1), reducing indexing, is uncalled for and extremely regressive. Recognizing that this was the tradeoff for reaching an agreement with the employer members of the Premier's Labour-Management Advisory Committee, we feel it is too steep a price to pay. The 4% cap on inflation has to be removed at the very least. The Friedland formula has a built-in 25% savings without a cap.

We would like to thank the committee for the opportunity to share our perspective on Bill 165. If you have any questions regarding our brief, we'd be more than happy to answer them at this time.

Ms Murdock: The Friedland formula has a built-in 25% savings without a cap, so the $18 billion over 20 years that has been projected on it under the present way it is formulated -- what are you saying? Are you saying 75% of that or are you saying 25%?

Mr Redmond: No, we're suggesting that because it's three quarters of whatever inflation is, it already has a built-in CPI savings of 25%. It doesn't need to be capped at 4%, nor for that matter have a reduction of 1%, to keep it that low.

Ms Murdock: On page 6, subsection 9(10) should include the worker's rep in the development of a voc rehab program for RTW, what happens to the worker who doesn't have a rep and how do you work that out?

Mr Redmond: Obviously that's why we talked earlier about the needed expertise that the board has in terms of doing that. But in many workplaces, like the one Ron comes from in Labatt's, where it was a jointly developed program, the union or the worker representative is integral to that reinstatement process. They sit down together with the worker and with the board and with the employer to do it. I think if we change or amend the act to reflect that those programs should be recognized, we should also include in them places of employment that already have good programs and make sure that representation continues, so that the integrity of the return-to-work program is consistent.

Mr Offer: Based on your concerns around the Friedland formula, if the government refuses to change that, should the bill be supported?

Mr Redmond: As we said, our general intent is that we think there are some significant improvements and that there needs to be some change now. There's also the royal commission that will be there to look at and reflect in greater detail on more complex issues and, I suppose, have a second opportunity to review anything that isn't changed here.

We would still lend our support to it, but we think that particular portion of the act is regressive and doesn't need to be there. Reiterating what the previous presenter talked about in terms of this, in pension plans we're looking at short-term -- I mean, the actuaries talk in terms of the die-off rate. It's exactly what the pension indexing is designed for; it lasts for seven to 12 years in that area, if you look at the mortality tables.

The Friedland formula is going to impact injured workers' pensions, it could be, for 25 or 35 years, and the impact is just staggering. It doesn't need to be there in terms of long-term savings, because the 25% savings is built in and will reflect on the unfunded liability.

Mrs Witmer: I appreciate your presentation. I think we all agree that something needs to be done as far as the amount of the FEL award is concerned. It's certainly contributing to a rise of costs within the system.

You talked about the experience rating. We all know that accidents have gone down approximately 30% since 1988, yet the costs of the system have increased 50%. But you go on to say here that the system "does little or nothing to reward efforts to improve good health and safety practices." Then you go on to talk about the return-to-work program at Labatt's, which actually demonstrates otherwise. I guess we've heard from other employers that really there has been an incentive there for management and the employees to sit down together to ensure that the workplace is made more safe. So how can you say this on the one hand and then indicate it's not working on the other hand?

Mr Redmond: Because if we look at the overall number of return-to-work programs, there are some large employers who have addressed the issue and it works well; we've seen that. But many employers who don't have the background, the expertise or the timing to implement this need assistance in how that's going to be done. Changing the legislation to strengthen return-to-work principles in the act will give the board some of that and it can lend that assistance.

In terms of the Employers' Advocacy Council, we heard of 117,000 employers; there are not 117,000 return-to-work programs in this province, and there need to be. The only way of doing that is by instituting it in the legislation.

The Vice-Chair: On behalf of this committee, I'd like to thank the Brewery, General and Professional Workers' Union for its presentation this morning.

1040

NOVACOR CHEMICALS (CANADA) LTD

Ms Kathy Suslje: Good morning. I'm Kathy Suslje with Novacor Chemicals and with me is Yugo Ivanovich, who looks after our safety, health, environment and responsible care programs at Novacor's Corunna site.

Ladies and gentlemen, we are very pleased to have this opportunity to provide Novacor's input to Bill 165. For your information, Novacor Chemicals, which is a subsidiary of Canadian-owned Nova Corp, is a major petrochemicals and plastics company. Our Ontario facilities include an integrated refinery and petrochemical complex in Corunna, a polyethylene resins plant in Corunna and another one in Mooretown, a styrene plant in Sarnia, an administrative/business centre in Sarnia, a plastics research centre in Mississauga and a sales office in Mississauga. The company's Ontario-based production facilities generate annual revenues of over $1 billion and provide direct employment for about 1,300 Ontarians.

The company is part of the chemical industry, which is a key player in the provincial economy. It is the third-largest sector in Ontario in terms of shipments, the second in terms of value added, the sixth in terms of employment, the fourth in terms of compensation, a significant exporter and a leader in workplace safety.

Novacor's employment practices encourage the maintenance of a safe working environment and our employees have achieved many notable safety records. For example, our St Clair River site has had only two lost-time cases in 35 years of operation, with a total lost time of eight days. Our Corunna site was the first petrochemical complex in the world to receive the international safety rating system's prestigious five-star advanced rating, which is based on a thorough audit of management systems.

In addition, in 1993 our Corunna employees achieved one million safe working hours for the 11th time and in 1992 two million safe working hours for the third time. Our Moore site went five years without a lost-day case and achieved over 2.5 million safe working hours, which is quite an achievement given the small size of Moore's workforce. Our Sarnia site has accumulated two years without a lost-time accident.

Our good safety performance is also reflected in the performance of other industries that work with us. For example, the construction industry in the Sarnia area has one of the lowest frequency rates in the country.

The strong emphasis that has been placed on safety in our company has resulted in low rates of injury and human suffering and, therefore, relatively low assessment rates for workers' compensation. We are concerned that changes proposed in Bill 165 have the potential to add significant costs to companies like Novacor that have done the right things and have excellent safety performance. The two areas that concern us are experience rating and financial sustainability.

Experience rating: The amendments concerning experience rating in Bill 165 open the door to subsequent regulations that could undermine the importance of safety results in determining sectoral rate structures for workers' compensation and refunds under the NEER program.

Currently, companies are grouped into sectoral categories with their rate assessments based on the safety performance experienced by their sector. Consequently, companies in industries with good safety performance can be assessed significantly less than the average assessment rate for workers' compensation and companies in sectors with less enviable safety results can find themselves paying significantly more.

If Bill 165 allows the emphasis to be shifted from proven safety results to simply having programs in place in determining sectoral rate structures, then it is conceivable that all employers would move towards paying a uniform rate for workers' compensation. Movement away from rate structures based on performance will do nothing to reduce the frequency and severity of workplace injuries, will mean that poorly performing employers will not be financially accountable for their accident performance and will add over $1 million in additional costs to a responsible company such as Novacor. This may well impact our future investment decisions in the province. Novacor strongly believes that good safety performance should continue to be recognized in the rate structure for workers' compensation and that we should not be forced to pay for the poor performance of others.

The amendments to experience rating in Bill 165 could affect the NEER program in much the same manner. Currently, a company with a good safety record relative to the average of its industry rate group will get a refund on its initial assessment. Those with a poor record relative to the average pay a surcharge. Moving away from a program based on proven results to the one that may be even partially based on the existence of internal programs, regardless of how efficient those programs may be, introduces a very subjective assessment methodology with little direct relation to reducing injuries. Once again, companies with good safety results may find that their costs significantly increase. According to the WCB, NEER encourages employers to invest in workplace safety and participate actively in vocational rehabilitation programs. Therefore, there appears to be no rationale for the changes that have been proposed.

We have heard from some in government that the changes proposed in Bill 165 regarding experience rating were agreed to by the members of the Premier's Labour-Management Advisory Committee, or PLMAC. However, what appears in Bill 165 is not what was reported back to business by the employer caucus of PLMAC. It was explained to us that the intent of the PLMAC accord was to essentially leave experience rating as it is and to augment it by adding an additional incentive for employers that involved the encouragement of return to work. Therefore, Bill 165 does not match employers' understanding of the PLMAC accord.

In summary then, experience rating helps promote a fairer distribution of the cost of the workers' compensation system and acts as a financial incentive for companies to reduce injuries. It should not be undermined.

Financial sustainability: The second area we would like to address is the importance of having a workers' compensation system in the province that is competitive and financially sustainable.

Currently, the average assessment rate in Ontario is higher than in other jurisdictions where Novacor operates, as is the unfunded liability. The phrase "financial crisis" has been used by many to describe the workers' compensation system in the province. It was rumoured that the reason the Premier originally asked PLMAC to review the workers' compensation system was because he was concerned the province's credit rating might be impacted by the unfunded liability. Despite this, Bill 165 does not adequately recognize and deal with the issue of competitiveness and financial sustainability of the workers' compensation system.

It is our understanding that members of PLMAC negotiated for the introduction of a balanced purpose clause in the accord. However, the purpose clause in Bill 165 is not balanced. It deals only with the need to provide fair compensation and return-to-work opportunities with no mention of the need for financial responsibility and economic evaluation of proposed changes. It is our belief that the concepts of competitiveness and financial sustainability should be reflected in the purpose clause if we want to encourage the development of a healthy system that is able to continue to meet employees' needs and that is not in conflict with attracting investment to the province.

Novacor supports reform initiatives that would ensure a competitive and financially sustainable workers' compensation system. We commend the government for introducing changes to the indexation of benefits, as recommended by the employer community, which could have a significant long-term impact on the system by substantially reducing the unfunded liability. However, the indexing exemptions and benefit improvements contained in Bill 165 will mean that the unfunded liability of the system will actually increase by several billion dollars over the next 20 years. Therefore, Bill 165 has not adequately dealt with the need for financial sustainability.

In summary, the costs of a workers' compensation system should be competitive with those in other jurisdictions. If they are not, then the location with the higher cost could be viewed less favourably in investment decisions involving new and sustaining capital. Workers' compensation systems also need to be financially sustainable. We believe it is unacceptable to allow unfunded liabilities to grow. Such deficits will not only increase the annual cost of a system, making rates less competitive, but could also negatively impact on a jurisdiction's credit rating and a company's cost of capital.

Conclusions: In conclusion, Novacor is strongly committed to ensuring a safe working environment, and we are very proud of the many outstanding safety records that our employees have achieved. Safety is a priority consideration in all planning activities.

While we support having good management systems in place in companies and investing in safety, the real goal and the only measure of success is not injuring workers. Good safety performance is also very important in helping to control overall workers' compensation costs. Movement away from assessments based on performance will do nothing to reduce workplace injuries or the growing unfunded liability and will mean that poorly performing companies will not be financially accountable for their accident performance.

Companies such as Novacor are currently planning for new investments. Ontario has many advantages as a place to invest, such as proximity to markets, availability of raw materials, skilled workers and a developed infrastructure. However, Novacor is concerned that Bill 165 has the potential, through subsequent regulation, to seriously impact our global competitiveness in the province. If performance-based experience rating is significantly altered and our costs significantly increase, then it is going to get increasingly difficult to attract some of this new investment to Ontario.

We thank you for the opportunity to share our concerns on experience rating and financial sustainability, and are hopeful that you will take our comments into consideration in revamping Bill 165.

The Acting Chair (Mr Paul Klopp): Thank you. There's two minutes for each caucus, starting with Mr Offer.

Mr Offer: Thank you very much for your presentation. You've dealt with an issue, the experience rating, which has been brought forward in this committee a great many times. I'd like to ask you a question based on that particular topic, because the amendments as proposed by the government are moving away from results-based to something else, and I think a lot of people make the assumption that if there are fewer accidents in the workplace, if the result of that -- I'm wondering if you can share with us what you believe the impact of that will be to a company such as yours.

Ms Suslje: As I suggested, we do have a very good safety performance, both within our industry and within the company, so we benefit both from our structural category as well as our NEER refund. Right now we benefit from experience rating, and the workers benefit because there are very few injuries.

We have a financial incentive to reduce injuries on the basis of the way the system is set up right now. If the system is changed and we move away from proven safety results into just having programs and practices in place, regardless of how effective those programs may be, we believe we're going to see a movement towards a more uniform rate in the province. What will basically happen is that good performing companies who do not use much money at all from the workers' compensation system will be paying for those companies who draw a lot more on that system. Basically, we will be paying for the poor performance of others. Based on our calculations, that could add millions of dollars to our costs.

1050

Mr Offer: So your concern is that the good will subsidize the bad, and not necessarily make things better.

Ms Suslje: I don't see how it could make them any better. There will be no financial incentive for the bad performers to improve their safety performance.

Mrs Witmer: Thank you very much for your presentation. I appreciate the thoroughness of the presentation regarding experience rating and the financial sustainability of the system.

I'd just like to follow further along the path that my colleague spoke to. It's obvious that you have a safety record of which you can be extremely proud, and we've heard from other companies as well that as a result of the incentives available, they are working actively with their employees to reduce the accident rate and they are participating actively in the vocational rehabilitation programs.

However, I saw something at the end of your presentation that would indicate to me that if some changes were made as far as removing the incentive and if there was an increase in the assessment rate, a company such as yours that was looking at new investment obviously wouldn't find this province quite as attractive as it had been in the past. Do you believe that either your company or others might be influenced to invest elsewhere?

Ms Suslje: If you're looking at adding over a million dollars to your costs in Ontario by changes through Bill 165, then definitely that would have to be taken into account in any investment decision.

Mrs Witmer: Is that a real figure for your company as a result of these changes?

Ms Suslje: Yes, it is.

Mr Yugo Ivanovich: May I add a couple of things on your question, please? Our assessment rate now is $1.12 per $100 payroll. Averages around $3 -- if we are going to uniform approach system, therefore it would be three times higher. Our assessment for one site is $400,000. You're talking a $1.2-million assessment for one location. The highest level of dollars we used from the WCB payout for us was $22,000 in one year. Our normal payment is anywhere between $2,000 and $3,000 a year. Our average compensable case is 1.2 over a 15-year period. Therefore, you can appreciate very much that we invested upfront money not to have compensation cases. Being penalized by the proposed changes, why would we invest even further and why would we invest in the province of Ontario?

Mrs Witmer: So it could cost jobs.

The Acting Chair: Thank you very much for that clarification.

Ms Murdock: You're to be commended on your St Clair River site. Only two lost-time accidents totalling eight days over that many years is exceptional. I know that in my riding, Inco has instituted very strong return-to-work, health and safety programs, joint health and safety committees that work together very well, and it has reduced their accident rate too.

But I'm following through on the other two because if you've seen the amendment that has been put forward, there was a lot of consternation in Bill 165 on the language as to the lack of clarity in terms of losing NEER. We recognized that, we saw that as a problem, and put in the amendment using the language out of the PLMAC agreement.

So I think you're overstating the concern, and I know that it's your interpretation and my interpretation and we're probably going to agree to be different. But when I read that "The amount of a refund or surcharge under a program shall be determined by the board based on the work injury frequency of an employer, the accident cost of the employer or both," which is exactly the way it is now -- okay? No change. Agreed?

Ms Suslje: Right.

Ms Murdock: Okay. And sub (3), "The amount of a refund or surcharge may be varied by the board upon consideration of," -- and this is exact language out of the PLMAC agreement, "(a) the health and safety practices and other programs of the employer to reduce injuries and occupational diseases; (b) vocational rehabilitation practices and programs of the employer; (c) practices and programs of the employer to assist workers to return to work, or (d) such other matters as the board considers appropriate."

Now, any one of those or a combination of all of them, I don't see how -- and you're going to have to teach me here -- that would hurt anybody who's already doing it.

Ms Suslje: I think the problem is there's no bounce there. It doesn't say how much is going to be determined by the actual performance of a company and how much is going to be determined by the programs and practices in place. There's nothing there. Is it 10%, the way it is now, and 90% based on programs and practices, or what is the bounce? I think the risk is still there, the concern is still there for companies like us, because we really don't know how it's going to be assessed based on that wording, and it could change. Every company probably has a program in place, whether it's effective or not. The result is what really counts.

Ms Murdock: Well, no. I wish that was true, but it's not. That's the unfortunate part of it, that not every company in Ontario does have programs in place.

The Acting Chair: Any more comments?

Mr Ivanovich: One comment to answer the last question. What we are frankly afraid of is another involvement of the Workplace Health and Safety Agency into bureaucracy and developing another auditing system away from people working together at the workplace. A typical example is the certification program and sector-specific certification. The record is not very good.

Adding additional bureaucracy in programs, assessments by outside parties, this is what we are really concerned about, and we don't need more bureaucracy.

The Acting Chair: We'd like to thank, on behalf of the committee, Novacor Chemicals for being here today. Your comments are noted and will help us in our decisions. Thank you very much.

Mr Hope: Mr Chair, just a question of legislative research. The document you presented to us which talked about re-employment/VR and there's 2,506 cases of objection there, that 95% of them have been won by workers and 4.9% by employers, about dealing with the return-to-work issues and stuff like that: That's how many appeals have been lodged, 2,506 of them, in the information you provided for us? This morning I heard the labour council talking about how employers talk about their vocational rehabilitation and re-employment and aren't proactive in it, and then I've heard about employers saying how good they are, and then I look at the numbers you presented to us this morning. I just want clarification on those numbers.

Mr Jerry Richmond: Mr Hope, those figures are for the most recent calendar year for which the board had figures, 1993. In my understanding, and I can certainly clarify it with them, they reflect whether the administrative objections or appeals were initiated by workers or employers. That's what they show. And they show consistently that the vast majority of those cases, in all three categories, were initiated by workers. Is that clear?

1100

Mr Hope: Yes.

The Vice-Chair: Mr Hope, in the future, being as you have a penchant for going to legislative research, could you possibly wait until the end of the morning or afternoon session to ask these questions? Thank you.

Mr Hope: I've got to do it while it's on my mind.

Interjection: Make a note to yourself.

WORKERS' (REPETITIVE) INJURY SUPPORT TEAM

Ms Susan Attoe: My name is Susan Attoe. I'm the president of the Workers' (Repetitive) Injury Support Team. We are a member organization of the Ontario Network of Injured Workers Groups. To my left is Karl Crevar, the president of the Ontario Network of Injured Workers Groups, who will be helping me with the questions.

Regretfully, we are unable to accept Bill 165 as written. In 1911, the CMA, Canadian Manufacturers' Association, appointed a special committee headed by F. W. Wegenast to investigate compensation and represent the CMA before the Meredith commission of June 30, 1910, and the Ontario government. Slowly the business community began to see the advantages of a compensation system. This special committee reported, "If we can eliminate the ambulance-chasing lawyers and dividend collector of liability insurance then we shall have conserved to a very large extent the interest of employers."

Employers noted that legislation would rid the employers of a harassing feature of lawsuits and litigation. It would regulate costs against the company, freeing them from sudden large payouts of money to meet claims.

Of all the advantages that the employers would benefit from, the most important was the reduction in costs. An insurance agent gave testimony: "If a compensation act were enacted giving reasonable benefits to the workman that are clearly defined, having reasonable limitations and making it alternative if he forfeits his right to compensation there would be a great reduction in the cost and no hardship to the workmen."

Ironically, though, various royal commissions, the poverty report, and the 1987 task force report An Injury to One is an Injury to All attempted to bring the low benefits and poor treatment of workers who are injured to the attention of the government and the public. The United Nations Year of Disabled Persons in 1981, and the period 1983 to 1992, the Decade of Disabled Persons, had major changes occur which were detrimental to disabled workers.

Bill 162 was passed in 1989 and took effect January 2, 1990. We have had three years to live with this change in the Workers' Compensation Act and have had time to analyse what is happening in the ways of policy and reform to a certain degree, keeping in mind that some policies still need to be developed.

There appears to be a reduction in benefit levels to the workers. The introduction of the non-economic loss award and future economic loss award has been a nightmare to workers trying to meet financial obligations. The NEL and FEL are quickly becoming known as "NEL and FEL, the twins from hell." Workers have been receiving deductions not only from the legislation, but also from board policy. For example, the NEL was reduced by the board introducing a new rating schedule for pensions, the AMA guide.

Deeming was not addressed in Bill 165 -- sections 43(3)(b) and 43(7) -- and this has been a big problem with workers. The FEL subjects workers to reductions by attempting to measure income potential. This is a job that the board feels they can perform and should be working in. This is not an actual job. Benefits should be an actual representation of the disabled person's work record: a group discriminated against in society, so much so that potential employers need legislation and special incentive programs to return them to work.

It is important to note that the first FEL reviews are showing a further reduction in benefits by subjecting workers to phantom promotions. When you are promoted, you usually receive a pay increase and therefore you are potentially earning more. This promoted earning potential is used to reduce the FEL. If this happens at both the 24-month review and then the 60-month review, the person won't have a FEL. Too bad this is not an actual job. The FEL is also having Canada pension disability fully deducted in some cases. This results in double taxation to workers' incomes.

Workers do not pay into the accident fund, as it was recognized that the worker was already the major contributor and should not be made to make an additional monetary contribution. For example, if a worker is unable to do his or her job and subsequently only earns 50% less than before the accident, the worker has contributed 50% of his or her income. Despite this, the worker's benefits have been attacked over and over by past governments and the board. It is time to stop the attack on workers' benefits and look for other areas to save money for the future success and viability of workers' compensation. There are many areas for us to choose from, the best being accident prevention and maximum employment.

In regard to maximum employment, you will hear in some of the presentations that workers are being brought back. We would like to remind you that modified work programs are only meant to be temporary. Some employers let these programs drag on past the worker's re-employment obligations, only to turn around after the obligation is finished to say: "We can no longer accommodate your permanent restrictions. You have to be able to do all the jobs on the team on a full-time basis."

This new problem appears to be developing from the new management technique called team concept or lean production. Not enough workers are being brought back on long-time, purposeful jobs. We appreciate any legislation which will help workers obtain jobs. To date, neither the Human Rights Code nor the Workers' Compensation Act can force employers to take injured workers back. In regard to Bill 165, it would definitely help if we had wording that forced the employer to take the worker back. Also in regard to number 9, we would like to see the paragraphs of legislation separate what is for the worker, section 53, and what is for the employer, section 54.

The $200 increase is applied to a supplement. This makes it conditional, and this is unacceptable. We feel this increase should be applied to the pension amount. The objective is to assist older workers who are living in poverty with additional moneys to improve their living conditions. Not all older workers will be receiving this money. I have attached a special letter for your reference. At the very least, it should not be limited based on age. These older workers have been waiting and fighting for this increase and are now being excluded based on their age. These are the same workers whose incomes showed the need for the increase.

In regard to the proposed change number 33, the introduction of the Friedland formula, workers' compensation payments are designed to replace workers' wages during an accident and for the time that the person is unable to work. COLA, or cost of living, increases are to keep wages in line with inflation. Workers who are injured have not chosen to retire, and in this sense they do not need a pension. They need a wage replacement. We fought 11 years to receive full indexing and are not about to give it up. The proposed Friedland formula is totally unacceptable and should not apply to workers' compensation payments. The Friedland formula was designed to apply to a worker saving for retirement and does not apply to this situation at all. This will only serve to widen the gap between a worker's wages and income, that little bit of income that is left after the worker receives his or her phantom job. If this is allowed, then it should be accompanied with a definition of "maximum amount" and/or "maximum benefits."

In regard to the new board of directors, we believe the bipartite board is the way to go. We would appreciate being able to reaffirm the position of the Ontario Network of Injured Workers Groups. Injured workers are the largest segment affected by the act by far. It should not be unreasonable to confirm our position and even extend it to two positions. With the old board resigning, we still have not been able to confirm our new replacement. For this reason, we are very fearful of not having a position at all.

The privacy act currently preserves the confidentiality of our medical records. To allow change number 8 will create a loophole in the access into one's confidential records. There is no need for this section given the existing cooperation between the worker and the compensation board in the maintenance and sharing of medical information regarding the worker's accident. The only possible reason for this is to give an unfair advantage to the employer. At the very least it should read "informed consent."

These are only part of our concerns. Attached is a more detailed outline.

1110

Mrs Witmer: Thank you very much for your presentation. It's obvious, after listening to the presentations last week and now again today that certainly the injured workers have been unjustly treated in the past, and certainly some of them are living in poverty and have suffered a great deal.

You've indicated here that you must have wording that would require employers to re-employ workers who are injured. What if there was no position available within that particular workplace? How would that be handled? What exactly is it that you're suggesting?

Ms Attoe: Often there are many cases, I know of five within my group just from the last month, where the workers can specifically point out a job they can do at their place of employment and they are not being allowed back due to the team concept. There should be some way to mitigate that, either through the mediation process or through the board themselves; some way to force them to look at that and say, "Can this worker do that and can they have this job?"

Mr Karl Crevar: I'd like to maybe comment a little bit on that. I think the whole purpose is to ensure that the employer has the obligation to re-employ injured workers. What we're saying is, if you want to address the unfunded liability concerns of the employers, that is one way to do it. Number one, reduce the accidents; number two, bring people back. It hasn't worked in the past. Employers have not, to any great extent, re-employed injured workers. If you want to address the concerns of employers, bring the workers back and, if it need be, it has to be put in through legislation.

When we talk about the concerns raised by the employer community, I find it somewhat disturbing when we're talking about a cooperative method on this legislation, yet I find it very upsetting to hear that the employers on three occasions walked away from the PLMAC agreements. It's necessary that we clear the air on that issue. If workers are to get back to work, the employers must be obligated through legislation to re-employ.

Mrs Witmer: And you're saying it would have to be with the original employer?

Mr Crevar: Not necessarily. There are provisions that if the worker cannot return to the accident employer, there must be -- the voc rehab programs must be supplied by the Workers' Compensation Board so that a worker can achieve sustainable employment, so they can get back to work. That's what we're talking about if you want to talk about saving costs. The workers have to get back to work.

Mrs Witmer: The other question I have is that you've asked for a position on the bipartite board. Why would you not be part of the worker side of that board? We've got the employer community, we've got the worker community, the labour union community, whatever you want to call it, why would injured workers not be included with the labour side of the board?

Mr Crevar: I don't know whether you're aware, we did have an injured worker representative from the Ontario network on the board of directors.

Mrs Witmer: Yes, that's right.

Mr Crevar: As a result of the introduction of Bill 165, there's a transition team that's been set up, so the board has been disbanded, to our knowledge. We went through a process of renominating a replacement for our representative whose term was up and who indicated that he did not want to return. It has not been confirmed at this time whether our replacement is going to be on this new board of directors or whether it is not. I remind you, as Susan had outlined to you, the injured workers are the ones paying the price for any legislation. Any negative legislation, the injured workers will pay the ultimate price. They are the ones who are going to be directly affected by any decisions.

Mrs Witmer: Does labour not recognize you then as being members of their group?

Mr Crevar: Excuse me?

Mrs Witmer: Are you not recognized by the labour unions that have half of the representation? Why would they not include you within their numbers?

Mr Crevar: What I'm trying to explain to you -- to date, because of the transition, we're not sure. The labour unions -- we have worked very closely with labour in this community because they are also stakeholders. They represent organized labour. We represent a lot of people who are unorganized who have come to us. There are a lot. We have worked with labour to establish that link. We're fighting for the same thing. We're not --

The Vice-Chair: Thank you. Mr Ferguson.

Mr Will Ferguson (Kitchener): Thank you very much. It was an excellent presentation. I want to tell you that we are now in the second week of hearings and last week the government was accused by virtually every employer that appeared before the committee that this bill was not balanced. I'm a little puzzled by that, because it seems when I listen to your comments, as well as other people's this morning, they're not entirely happy with it, so it certainly is less than one-sided.

To my question: The government's position at this point is pretty clear. Of course, we're on the road and we're listening to all kinds of suggestions on how to improve the bill, but I want to ask you this: The Liberal Party, in its report Back to the Future, supports the government's initiative on the Friedland formula. However, they've also suggested in their report Back to the Future that we ought to be freezing premiums for employers immediately.

The Conservatives have taken a much different tack in their report released to the government. I remember last week they suggested that we're not going far enough, that we ought to take the benefit level immediately from 90% of net wages to 80%, that we ought to be imposing a 72-hour waiting period from the time an accident happens until benefits commence and, as well, look at an implementation of some type of copayment schedule, where employees would contribute, as well as employers. I'm wondering if you have any thoughts on those suggestions that have been advanced to the government.

Mr Crevar: Let me get to your first point on the freezing of benefits; it's been indicated very clearly by Mr Mahoney and the Liberal Party and also Conservatives. We're well aware of that. Let me state quite clearly: In its present form, the Ontario Network of Injured Workers' Groups will not support the use of the Friedland formula to reduce benefits. This is one thing we will not support.

When we talk about in reality the freezing of assessment rates, who is going to pay? Are we truly looking at ways of reducing the concerns of the employer? The reality is that when you talk about freezing assessment rates, what you're talking about is venturing into cutting benefits. That's what you're doing. That misconception should be put aside. That's a reality. When you freeze assessment rates for the employers -- what you're talking about -- the only other alternative to address the employers' concerns on the unfunded liability is through a reduction in benefits.

Injured workers have paid the price for years, and that is reflected in the $200 increase that they're being given now. They paid the price for years, and what are we talking about? Further cutting into the reduction of benefits. That is not acceptable.

Mr Offer: Thank you for your presentation. I want to be very clear as to your position. If the government refuses to move on the Friedland formula as put forward in the bill, it is your position that the bill should be withdrawn.

Ms Attoe: Yes, we are. We absolutely cannot support any reduction in benefits. I find it very hard to go to the people I represent and tell them we're going to accept this when I've got five suicide calls a year in regard to workers on compensation not being able to manage the system, and the frustrations they face.

Mr Offer: It is interesting that your very clear and precise position, which I understand full well, is very much the position of the employers who have come before the committee but for different reasons. I want to talk about your position on the board of directors and I want you to help me out on this because, under the legislation, the Workers' Compensation Act, you now do not have a legislated position on the board; rather, you were appointed to an available position. I'm wondering if you are looking for changes which would give you a legislated position, as opposed to one which is available if the opportunity arises.

Ms Attoe: Yes, we would very much appreciate a legislated position. That way, the injured workers -- you'll have three groups at the table, more or less. You'll have your labour getting going and your employers getting going, making the compromise, and the workers will be guaranteed to be there to say, "Whoa, this is how it is going to affect us," and keeping them in balance.

1120

Mr Offer: From your experience, again under the Workers' Compensation Act as presently written, a member of the workers appeal tribunal from WCAT was a member of the board -- albeit not a voting member -- and is now no longer a member under the proposed changes. Is there a benefit of having representation at the board level from a member of the appeals tribunal?

Mr Crevar: If I may, I ask you the same question in return, Mr Offer. We know that on the previous board of directors we had representatives from particularly the insurance company or the banking institution. We couldn't understand why an employer group that is not covered under compensation would be represented on the Workers' Compensation Board of directors.

Let me go back to your first question on the position by the network in injured workers in this province. I can assure you, and I want to make it very clear, we are opposed to the legislation in its present form. Employers are opposed to the legislation, period, because it does not go far enough in terms of addressing their concerns on the unfunded liability.

Our concerns are much different than the employers'. We hope that by presenting to you, and that by you listening to us, you will take the appropriate steps to correct some of the wrong. We've indicated to you and to the government that there are provisions in the act that we support and we will support, but there are other areas, such as the Friedland formula, which we will not.

The Vice-Chair: Thank you for the presentation.

UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 459

Ms Erna Moynahan: I'm Erna Moynahan, United Food and Commercial Workers, and this is Mr Jim Jewell, an injured worker who'll be sharing my time with me today.

On behalf of United Food and Commercial Workers, Local 459, I would like to thank the standing committee for the opportunity to address our concerns regarding Bill 165.

I would like to begin by congratulating the NDP government for proposing changes to the Workers' Compensation Act. Over the years we have seen many of our members lose their jobs, their homes, their families and their dignity because of some of the shortcomings of the Workers' Compensation Act. We are delighted that this government is apprised of those shortcomings and is taking steps to eliminate them through reform.

At Local 459, we represent companies such as the H.J. Heinz Co, Omstead Foods Ltd and Primo Foods Ltd. The vast majority of our workforce consists of older and/or ethnic workers with few transferable skills and limited education. We fully support our UFCW's national position, as well as the OFL's position on this reform and the recommendations for proposed changes, as stated in their submissions.

I therefore have not dealt with each individual change in this submission, but a selection of those. As you are aware, many of the proposed amendments were intended to strengthen the employers' obligation to return injured workers to work. We have therefore focused on these amendments, as well as the pension increase.

As we are limited for time, I will not be addressing those changes before you today, but encourage each committee member to fully review all of the information contained in this submission and use it to strengthen the existing language, as proposed in the reform.

In the time that remains, I invite you to listen to an injured worker whose story is representative of many injured workers' experiences. From his story, you should gain a full understanding of why these changes are absolutely necessary.

At this time I would like to introduce to you Mr Jim Jewell, who has unfortunately had to rely on the workers' compensation system intermittently for the last 21 years. During this time he has suffered numerous tribulations as a result of these shortcomings and would like to share some of his ordeals with you.

Mr Jim Jewell: First of all, I would like to say thank you to the committee for allowing me this opportunity to share with you my experiences in dealing with WCB over the last 21 years. As I'm extremely nervous about doing this, please bear with me.

I know what the shortcomings in the system have done to my life and any changes that you can implement to remove these shortcomings would certainly be welcome. Even though some of these changes will be too late to benefit me, it certainly could prevent other young people from suffering a great deal of needless mental and physical pain.

I realize that in order to give everyone an opportunity to speak, time is limited, but trying to put 21 years of my life into 20 minutes is extremely difficult, but I will do the best I can to keep it brief.

I come from a family of 12 children. I left school after completing grade 8 to find a job in a career field. I was always interested in mechanical things and what made them work, and I found an excellent opportunity to learn the auto repair trade and became a mechanic. Early in life I was always good at taking things apart but not quite smart enough to get them back together.

At the age of 20 I received my class A interprovincial auto mechanic's licence and over the next 11 years I was married and raising a family. We bought a home and owned our own business, which was doing very well. Life was very good and financially we were able to enjoy vacations, trips abroad, recreational family activities, as well as luxury items for ourselves and our son.

In 1973 I suffered a work-related back injury and became involved with WCB. Over the next six years, as a result of this injury, I had back surgery on two different occasions, which resulted in a fusion of my lower back. At this time the surgeon advised me not to return to my former type of work as the fusion would leave my lower back rigid and leaning over fenders would put added strain to the area above the fusion.

In order to maintain financial stability in our lives until I became healthy enough to search for a new field that would allow me to support my family, as the funds I received from WCB at that time, which were temporary benefits less my pension, were minimal -- and the fact that I could no longer continue working in our business -- we were forced to sell our business to be able to have enough money to live on during this period.

Approximately one year after my fusion, with no assistance from the board, I was fortunate enough to find work with a company that manufactured and decorated plastic auto parts. Even though they were aware of my previous back injury, they were willing to give me a job and train me in a new field. This new field was not as physically demanding.

Unfortunately, in 1981 I slipped on a wet floor at work and caused further injury to my back. The severity of this second injury caused me a great deal of pain and I remained off work for at least 18 months. Approximately one year after I suffered this injury, I received a letter from the WCB stating that they felt I had reached my previous pension level and that temporary benefits were being stopped, even though at that time my doctor had sent in his report stating I was not able to return to work. I remained off work for an additional six months before I was physically able to return to any type of work.

The only income we had through this time was the small pension I was receiving from WCB, and in order to live we exhausted the last of the savings we had from the sale of our business. The financial hardships we suffered, as well as the mood swings I experienced because of the pain medication I was taking, caused more stress than my wife and I could handle and we lost our marriage and our home.

It was at this desperate time in my life that I approached the WCB to see if there was any possible way they could help me. They told me at this time that there was a vocational rehabilitation service available. This was the first time since my first injury in 1973 that I was made aware of this service.

Since 1982, I have been involved with voc rehab several times on different types of retraining programs. Because of the physical demands of these jobs, I suffered recurring back pain and injuries and was not able to fulfil the contract. I was told by rehab that these training programs were within my physical restrictions.

1130

During this time, I had asked if I could possibly return to school to upgrade my education, which would allow me to gain suitable employment in a higher-tech field that would not be as physically demanding. My request was not dealt with until late in 1992.

At this time, I was scheduled by WCB for an assessment to determine my eligibility. The report, which I got a copy of, said that I could absorb the instruction that I would require. Unfortunately, by this time my back was so bad that I could not sit the length of time required in a classroom.

I don't have the time to explain all of the mental anguish and pain I have suffered over the last 21 years. I would, however, tell you that I am a proud and intelligent person. Due to circumstances that I could not control, I have suffered a great deal, and I feel that the WCB system failed me at a young age, when it could have provided me with a higher education and would have been most beneficial to myself and to the board. I strongly feel that if I had been made aware of these services in 1979, I could have upgraded my education and gained suitable, less physically demanding employment in a field that would not have caused further injury to my back. This would have most certainly reduced the cost to WCB.

Throughout this 21-year period I have cooperated fully with all of WCB's requests and recommendations. Even though I did this, it was always a struggle to obtain benefits. The fact that they gave me a pension seemed to be a way for the WCB to cut my benefits at any given time. Any time I was receiving benefits due to a recurring back injury and was under doctor's care, I would receive a letter stating that I was at my pension level and benefits were being cut. This occurred even though my doctor's report stated that I was not able to return to work.

The pain and stress I have endured and not having a stable income to support myself for all of these years has cost not only the hard work I put into building a future for myself and my family at a young age, it's also cost me a second marriage and a six-year relationship with a woman.

But to this day I have not been able to recover from the financial burden, because benefits were continually being cut and I repeatedly had to prove to the WCB that they should not have been terminated. The length of time it took to get reinstated would drain my bank account and leave me in debt, and if it were not for the moral and financial support that I received from my family and friends, I could never have made it through these times.

There was a period of three years when after a strenuous and very rigid exercise program that I became involved in on my own, I was able to strengthen my back to the point that I was able to again, without the assistance of the board, gain suitable employment and return to the workforce, earning a decent living.

However, due to the negligence of another employee, I fell backwards from a high platform and, yes, injured my back again. This occurred in 1990, and since that time I have suffered dearly. I am currently receiving temporary benefits that took six months of struggling with the WCB to receive, and during this six months trying to survive on my pension, which amounts to $530 a month. This put me into debt again, and once more my family and friends lent me the money to survive.

Without the assistance of the staff at the office of my local MPP, Pat Hayes, I know I would not be receiving these benefits, and these are benefits that I am entitled to.

The greatest fear I have is receiving a letter, instead of a cheque, in the mail from WCB that states that my benefits are going to be cut again and once again I will have a total of $530 a month. It is this fear that has brought me here today to ask for your help. If this pension increase is allowed, even though it certainly is not a great amount, it would be a help, and it would be $200 less that I would have to borrow from my family.

I would also hope that this committee will look at the shortcomings of vocational rehab and improve the system so that other injured workers do not have to go through what I had to go through over the last 21 years. Thank you for the time.

Ms Moynahan: After hearing Mr Jewell's story, I can't emphasize enough how important it is to go forward with Bill 165, especially subsection 53(10), which deals with vocational rehabilitation. We support this section, but we would encourage you to change the words, "if possible, the worker's physician" to "and the worker's physician." In Mr Jewell's situation, had all parties been active in the vocational rehabilitation phase earlier on, he most likely would have returned to safe, suitable work rather than being totally unemployable now.

The Vice-Chair: Thank you. Mr Hope. You have about a minute each.

Mr Hope: A minute each? That doesn't leave a lot of time.

In your presentation, I was going through and I noticed it's been repeated a number of times, changing "may" to "shall." Why are you so affirmative on that change?

Ms Moynahan: I just think that "may" leaves it open for the board to at any time not perform or not do what the intent of the act really is. So if you say "shall," it's going to happen; "may" may not happen.

Mr Hope: Okay. During the period from 1973 to 1992 -- and it's Mr Jewell, is it?

Mr Jewell: Yes.

Mr Hope: Mr Jewell, during that time, and I was listening to your comments that you expressed, did you feel you were spending more time proving your accident or illness versus actually looking for rehabilitation, that there was more time spent with the staff arguing about your claim versus actually looking for rehabilitation and re-employment?

Mr Jewell: Definitely.

Mr Hope: How do you think that would correct the issue, if we were to do that now administratively? We can't turn the clocks back and fix the problem back in 1973.

Mr Jewell: No, I realize that.

Mr Hope: So we have to look at progressive changes which you've asked for so that other injured workers don't fall into the same situation. In your recommendation, how can we do that today to correct that issue?

Mr Jewell: I'm not sure I fully understand the question, but maybe Erna can help me with that one.

Ms Moynahan: Yes. With regard to our submission, and especially with regard to experience rating, with the employers we deal with, and we quite openly talk about experience rating, that is their one incentive for returning injured workers to work. It's not because they truly care that the injured worker got injured. Unfortunately, it's not.

One of our employers is very active in returning injured workers to work and also in allowing the union to participate. In our environment, it's a unionized environment. Mr Jewell never had the enjoyment of having a union rep or any representative up until just most recently. But in our workplace, one of our employers works quite closely with the union in returning injured workers back to work and their rebates are plentiful.

In another one of our units, the employer, up until most recently, until this employer purchased that employer, would not involve even just the workers in the return-to-work phase. They would just say, "Here are your restrictions; we feel you can do the job," and they would return workers back to inspection line work or whatever. That just constantly kept aggravating conditions to the point where these workers are no longer employable, and that's a cost on the system.

Now that we're involved in the system, we're monitoring it. We've taken a very active role. We attend all the return-to-work meetings and we make suggestions for change, and they're actually starting -- especially the one employer who's getting surcharges -- they're actually listening to our suggestions and working with us. I really would suggest that in section 103 you also include that it be a joint return-to-work process. I don't see that this emphasis is made and I can't emphasize how important it is.

Because if, for instance, in Mr Jewell's case, had it been a whole joint return-to-work process, including everyone, the doctor, the employer, the board and the worker, I think he would possibly have been returned to a suitable job at one of the accident employers or been retrained much earlier on, and he probably would be working today.

Mr Offer: I'd like to thank you for your presentation and you, Mr Jewell, for your sharing with us your personal history of working with the workers' comp. As will not come as a surprise, that type of experience is one which we, as MPPs, have had some experience with ourselves, working with our constituents. I think your particular presentation underscores the need to make certain that at the Worker's Compensation Board the very best people are the first people injured workers come in contact with, either personally or through their representative, so that the type of experience that you have gone through need not be followed by others in the future.

By way of comment, I think your coming here today and sharing with us your particular personal experience helps us in working in that way. I really don't have any question, except to thank you for sharing your thoughts with us.

Mr Jewell: Thank you. I appreciate that.

Mrs Witmer: Thank you very much, Mr Jewell, for sharing the experience. Unfortunately, your situation is all too common. As MPPs, we hear it on a regular basis in our offices. Sometimes up to 50% of our work is devoted to helping injured workers access the system and getting some results from the system.

I would only say to you that I'm not convinced that Bill 165 will do that all much to help individuals such as yourself. There's a tremendous amount that needs to be done, and I hope it will be, but I'm not convinced at the present time.

Mr Jewell: Well, I'm just not up on what is included in Bill 165. All I'm interested in is sharing my experiences with you so that you can put in whatever it takes so that this doesn't happen to someone else.

Mrs Witmer: I think everybody around the table would agree we're all committed to making the system respond to individuals such as yourself as quickly as possible in order that you can get back to work.

Ms Moynahan: By placing a greater emphasis, as we stated, on the re-employment issue, I do believe that Bill 165 will address those issues. Unfortunately, it's money that talks with the employers and if we strengthen the language with re-employment and with the experience rating to offer the incentives to the employers, the good employers are not going to worry about the effects of Bill 165 because they are receiving the rebates already. If the poor employers are worried, and they're the ones who are addressing these concerns here today, then obviously it's a good incentive to proceed with so that they will make the workplaces safer.

Mrs Witmer: Unfortunately, the good employers are also going to be penalized under this system if we change the experience rating. We heard from a company this morning that could have an additional $1 million of assessment levied on it if changes are made.

The Vice-Chair: On behalf of this committee I'd like to thank the United Food and Commercial Workers, Local 459, for the presentation this morning.

Mr Offer: Mr Chair, I'd like to take the opportunity to correct, I guess, my record. I posed a question earlier today that dealt with the issue of representation by the appeals tribunal on the board of directors, and it's been brought to my attention that indeed under Bill 165 the chair of the appeals tribunal is a non-voting member of the board of directors.

Having said that, I would also like to ask ministry officials or the parliamentary assistant, by virtue of the fact of representation, does it follow that the appeals tribunal, in total, is subject to section 58 of the bill? The specific question I have is that by virtue of the fact that the chair of the appeals tribunal is a non-voting member on the board and the board is subject to, obviously, section 58 as to being financially responsible and accountable, does that go then to state that WCAT is also subject to section 58? I'd like to get that clarification as soon as possible.

The Vice-Chair: Okay.

Mr Offer: I don't mean to help you out.

Mr Hope: You were going to correct the record, not make a long statement.

The Vice-Chair: Thank you. We were unable to reschedule the 1:30 appointment, so this committee stands recessed until 1:50 pm this afternoon.

The committee recessed from 1145 to 1356.

The Vice-Chair: First of all, the committee would like to make an apology to the Ontario Association of Career Colleges. They were supposed to present at 11:30 but we didn't have confirmation that they were here, and after we had recessed we found out they were, so their brief was passed out to the committee members and will be taken into consideration.

Is the Hamilton and District Labour Council here? Is there anybody here? All right. I think we have agreement that the London Chamber of Commerce will present in their stead and hopefully they'll be here shortly.

LONDON CHAMBER OF COMMERCE

Ms Del Wright: Thank you. Good afternoon, ladies and gentlemen. My name is Del Wright, chair of the London Chamber of Commerce. With me is Jim Thomas, chair of our task force for Bill 165.

The London Chamber of Commerce is London's oldest and largest business organization, with more than 1,500 individual members representing 1,100 firms which employ over 50,000 people in London and region. As part of our mission to represent our members' interests, we study, report and comment on issues of concern to London and its business community. In the past, we have spoken on behalf of our member companies on such issues as workplace health and safety, pay equity, employment equity as well as the Workers' Compensation Board.

The workers' compensation system is one of the constant areas of concern for employers in the London area. Employers regularly see employees with questionable compensation claims gain entitlement without investigation by the WCB. At the same time, employees with legitimate claims are denied entitlement. Administrative costs of the WCB are perceived by employers as out of control. The unfunded liability of the WCB continues to grow with little evidence that a realistic plan is in place to stop its growth. In short, the employer community views the WCB as a system out of control and in financial crisis.

It is against this background that we have framed our comments regarding Bill 165. Because of the extensive number of changes contained in the bill it is impossible, in the limited time available, to comment fully regarding our concerns. In order to provide you with a more meaningful view of the bill, a number of employers from London and region have joined together to present both their own company or association views and general views of employers gathered in meetings held prior to these hearings to coordinate presentations.

The London chamber has taken the responsibility to discuss two areas of concern to employers. These areas are the addition of a purpose clause to the WCB legislation and the governance of the WCB.

The idea of a purpose clause was initially recommended by the business representatives to the Premier's Labour-Management Advisory Council and contained language to ensure the WCB is accountable and acts in a financially responsible way. This was the understanding that was agreed to by members of the PLMAC. But when the bill was drafted, that language was excluded from the purpose clause and placed in the body of the bill. We believe this subordinates the financial responsibility framework and that the financial responsibility framework needs to be returned to the purpose clause.

The purpose clause, as currently drafted, will be used to expand entitlements currently limited by the legislation. There is no reference to the framework of financial responsibility. The purpose clause refers to "fair" compensation, but fair to whom? Certainly not to employers. The WCB system is currently running an unfunded liability of $11.6 billion that is expected to grow to at least $31 billion by 2014 if no changes are made to the current system. The $16-billion reduction in the unfunded liability spoken of by the government actually represents a $10-billion increase over the provisions of the original PLMAC accord. Despite this looming financial disaster, the drafters of the legislation have taken a one-sided view of fairness. The language of the purpose clause makes no reference to the financial ability of the WCB to pay such fair compensation.

Why is this important? Look at one example. Section 65 of the act is amended by adding new language that requires the WCB to ensure that "...generally accepted advances in health sciences and related disciplines are reflected in benefits, services, programs and policies in a way that is consistent with the purposes of this act." With no reference to financial responsibility within the context of the purpose clause, this section would now obligate the board to implement new benefits with respect to such things as stress claims or emotional and behavioural conditions without regard to the financial consequences of expanding the scope of entitlement under the act.

We strongly recommend that the bill be amended to include a requirement that any expansion of benefit entitlement be limited by the financial ability of the WCB system to pay for such benefits. In addition, the purpose clause should contain a mandate for the WCB that would place the actions of the board of directors, the administration and the Workers' Compensation Appeal Tribunal, WCAT, in a framework of financial responsibility.

Bill 165 changes the structure of the WCB from its current structure to an essentially bipartite system. The board of directors will be composed of an equal number of union representatives and employers. Workers not represented by unions have no voice and are effectively disfranchised from the process. This is a formula for disaster. The closest example we have of how an agency based on this structure works is in the area of workplace health and safety. The Workplace Health and Safety Agency is now in a state of deadlock and organizationally paralysed. This is not a structure that recommends itself for duplication at the WCB, which is responsible for a far more complicated and politically sensitive area. This structure needs to be rethought. The real responsibility for WCB rests not with a board of directors but with the Ontario government.

The government should be directly responsible for the WCB. It could then be held accountable for the kinds of decisions that the WCB is making and not continue the myth that the board is somehow independent. The provisions of Bill 165 provide for the government to issue policy directives to the board of directors for a period of one year after the bill is proclaimed. This is a clear indication of the degree of independence the government expects of the board of directors.

The minister should be directly responsible for the actions of the WCB. As the public debate over this legislation indicates, it is the government that dictates the framework for the operations of the board. True political accountability for the board would ensure that responsibility for decisions, such as the building of a new office building, would be placed at the minister's desk and that the minister would be directly responsible for those decisions.

There are numerous other concerns that our members express about the Ontario WCB system. Most commonly expressed concerns surround the level of benefits; the lack of control over the system and the cost of the system; and ineffective return-to-work arrangements. Ontario's WCB system does not deliver good value for the money spent. In the competitive environment that our members operate in, they are required to control expenses and provide their customers with fair value. That same responsibility is the absolute minimum that Ontario employers require from the Workers' Compensation Board. We are not getting it today, and this legislation does little or nothing to ensure that we will see any improvements in the future.

Mr Steven W. Mahoney (Mississauga West): Thank you for your presentation. Just perhaps on the last point that you made with regard to government accountability, first of all, this bill does give the minister complete authority over the WCB for a period of one year and then it's over; that's repealed automatically in the legislation.

I've heard concerns, particularly from some of your colleagues, I would think, in the business community about the damage that could be done with political interference and direct control by the current government, by the current Minister of Labour over the WCB, and it sort of flies in the face of what you're saying here. Do you not have those same types of concerns about decisions in workers' compensation becoming politically motivated rather than being made by a non-partisan group with the interests of both the workers and the employers at heart?

Mr Jim Thomas: Maybe I could respond to that. It's exactly the thing you've outlined that causes us to take the position that we took. We're deeply concerned about the political tinkering that occurs and the responsibility for those decisions should be placed directly at the feet of the Minister of Labour or the appropriate minister, who should be accountable for them and continue to be accountable. It's a myth that the WCB is independent. It's a history of several governments tinkering with the WCB system that has got us into the financial mess that we're in.

Mr Mahoney: You can appreciate, as we've experienced in the last four years at least, that one never knows what government will be in power, what philosophy will be driving the government of the day or the minister. Would we be better off to enshrine independence somehow in the legislation and go the opposite route?

I would point out to you, on your example of the building being built without cabinet approval, it was proven quite clearly through committee hearings that we held last summer that there was a requirement for cabinet approval and that approval was not even sought. They attempted to use a loophole by playing around with the tenure of the building, the fact that they would be tenants and partners and the investment fund was really not the board; it was the investment fund. They tried to arm's-length this thing, but clearly we had reports to our committee, and the auditor even reported that the rules of the game were violated, that there was a requirement for them to come before cabinet. They didn't do that.

So those rules are there. I'm just a little concerned with specifically what you're asking for, that it's going to leave us wide open to more tinkering and more political gerrymandering.

Mr Thomas: It's hard to believe there could be much more.

The Vice-Chair: Thank you. Mrs Cunningham.

1410

Mrs Dianne Cunningham (London North): Thank you, Mr Chairman. I don't really want to talk about the building and I don't think Mr Mahoney should have raised it, but that's beside the point.

Mr Mahoney: Excuse me. The deputant raised it.

Mrs Cunningham: Commonly expressed concerns with regard to level of benefits, page 3: Here in London, this is probably one of the bigger issues. In my constituency office it takes a lot of time. I'm sure my colleagues would agree with that in that people are not getting the kinds of services they require from the Workers' Compensation Board. Today I would say that the legislation would not solve the problems of the last participant as he described his concerns before lunch. To me, it was clearly a problem with the rehabilitation system itself and should have been solved within the existing structure of the rehab system probably 20 years ago, which this bill doesn't address. That's another issue.

Could you expand upon the concerns that you hear with regard to the level of benefits, the lack of control over the system and the cost of the system? Can you give us some examples of the kinds of things you hear?

Mr Thomas: From employers?

Mrs Cunningham: Or employees. I'm sure everybody's concerned. They all pay taxes.

Mr Thomas: Sure. From employers specifically we have regular comments about the disincentive to return to work by a system that allows people to, in effect, take home more than they would by working. That seems to be inappropriate to employers.

I agree, Ms Cunningham, that the administration often results in the worst possible circumstances, where people who are entitled to benefits don't get them and people who are not entitled to them do get them.

Mrs Cunningham: What about costs?

Mr Thomas: You just have to look at the numbers. The costs are just out of control.

Mrs Cunningham: We were told this morning by one group that there's a $6-billion surplus.

Mr Thomas: I can't account for other people's accounting. I can only account for the numbers that we see on a regular basis. There's an unfunded liability of $11.6 billion, $11.7 billion. That's a bill that's due. We're going to have to pay it and we can't afford it.

Mrs Cunningham: Thank you.

Ms Murdock: Thank you very much. The top of page 3 is where I'm directing my question to, and if there's time I know Mr Ferguson would like to say something.

It's the whole concept of implementing "new benefits with respect to such things as stress claims or emotional-behavioural conditions with regard to the financial consequences of expanding the scope of entitlement under the act." I guess it's a philosophical difference, but if a worker has an injury or a disease and it is proven to be related to the workplace, that worker deserves to be compensated for that injury or disease, and that was the deal that was struck in 1914 by the employers in order to save them civil liabilities.

I'm concerned because you're not the first group that has come forward with the concern about stress being recognized. I'm especially concerned when I consider that WCAT has only recognized five cases. It has denied many, many more than that, but it has only recognized five where it is directly stress and no one could say that it wasn't stress.

The other thing is, already the board recognizes things such as psychological stress. That's already accepted, so it isn't anything new and Bill 165 isn't going to change that. It'll still be part of the policy of the board. I guess what I'm asking is, I don't understand what your concerns seem to be in that first paragraph.

Mr Thomas: Our concerns are very specifically the cost of the system, that the provision of benefits needs to be within the affordability of the system to pay for it. This language refers to the purpose clause, that the financial responsibility framework be included in the purpose clause and not be subordinate to the purpose clause as it currently is.

Ms Murdock: But you're not saying, at least I hope you're not saying, that workers should not get benefits if the board can't afford to pay for them?

Mr Thomas: I'm saying that the provision of benefits in such areas as stress, the addition of those kinds of benefits, needs to be within the context of the ability of the system to pay for them much in the same way that we have to deal with the ability to pay for things within our medical system. We may have to ration some things.

Ms Murdock: You can't ration injury, I'm sorry.

The Vice-Chair: Thank you very much. On behalf of this committee, I'd like to thank the London Chamber of Commerce for its presentation this afternoon.

AMERICAN FEDERATION OF GRAIN MILLERS, LOCAL 154

Ms Jody Jones: My name is Jody Jones. I am a WCB representative for the American Federation of Grain Millers, Local 154. I would like to thank the committee for the opportunity to speak here before you today. I have brought with me an injured worker, Dale Schoffer, with whom I will be sharing my 20 minutes.

The provincial government has introduced Bill 165 in conjunction with a royal commission as its answer to combat the administrative and financial problems that burden the Workers' Compensation Board.

We, the American Federation of Grain Millers, Local 154, fully support the OFL's position on WCB reform. We are very encouraged to see that the bill includes sections like subsection 54(11.1). It gives the Workers' Compensation Board reasonable powers to launch on its own initiative an investigation to determine whether the employer has fulfilled its re-employment obligations. It's easy to understand why some employers would reject this section, but those who fulfil their obligations would have nothing to fear.

Listening to Bill 165 opinions during the last week, it seems clear to me that the true cost-reduction measures are in prevention and re-employment. The original framework for WCB reform intended to promote return-to-work programs that provided for the participation of all workplace parties. This was excluded by the legislation drafters. Therefore, one of our main concerns is with subsection 103.1(2).

Experience- and merit-rating programs, more specifically the employer's refund or surcharge depending on workplace programs: This section refers to health and safety practices and programs of the employer, vocational rehabilitation practices and programs of the employer and return-to-work practices and programs of the employer. We feel this section blatantly neglects to mention any joint participation or cooperation between workplace parties. We strongly feel that joint cooperation between workplace parties is crucial and that anything less defeats the true intent of WCB reform. Be assured that if an employer can get a refund by developing a program, they will develop one very quickly. However, if the refund depends on a cooperative program, a much different effort will be required. Cooperation by all workplace parties is imperative to make any program a success.

It is my experience that employers are currently more concerned with returning injured workers to any work without taking into consideration their own individual skills potential. Therefore, workers are reluctant to cooperate because of their mistrust of the employer. At this point, because of the absence of a true joint return-to-work program, we are now tied up in the appeal process, thus adding yet another unnecessary cost to the workers' compensation system. It is imperative that when returning an injured worker to work we either accommodate the worker's pre-injury job or try to return a worker to other comparable, meaningful work.

Accommodations are another area of concern. Often an accommodation is interpreted as reassigning the work to other workers. In some of these cases, the injurious work is still in place but not done by the previously injured worker, thus possibly endangering the health and safety of others. With a joint effort, these situations could be identified better. Cooperation by all workplace parties will be imperative to make any program a success. If return-to-work programs were all joint in nature, I'm confident injured workers would return to work quicker and safer and to more meaningful work. We would also see an increase in the number of workers actually returning to work, thus refunding deserving employers. Prevention and re-employment are the ultimate key to reducing the unfunded liability. With "joint" added to subsection 103.1(2), what better way to begin a cooperative environment than to have employers' money depend on it?

1420

I would like to bring to your attention a quote from a letter written to Gord Wilson, president of the Ontario Federation of Labour, from Pat Palmer, chair of the Ontario Chamber of Commerce, dated August 9, 1994:

"The Ontario Chamber of Commerce is always willing to join with the Ontario Federation of Labour in working together on any and all issues of common concerns. Our views may differ, but we continue to believe that a willingness to work together for our common good is needed from organized labour and business in Ontario."

If the attitude reflected by Pat Palmer is genuinely that of the business community, I'm confident that adding "joint" to subsection 103.1(2) will do us all the good we so desperately need.

At this time, I would like to introduce you to Dale Schoffer, an injured worker who would like to share with you some of his experiences. Thank you.

Mr Dale Schoffer: My story begins in June 1990. I slipped and fell in a wet sump area where I work. I tore up my shoulder. I went through the steps at therapy and everything else. They found out that the injury was worse than they had originally thought, so I had to have surgery. Before this, up until this time, I played ball with my kids. I've got two boys of 11 and eight and used to love to enjoy going out and playing with them.

Since this has happened, I've been off work. I was off work for two years and three months. The board had said that I was able to go back to suitable work in March 1992. My employer said there was no work for me, nothing. They had no jobs available for me that I could do. I went to the union. The union fought for me, but because there's no joint return-to-work program, the union just had to go by what my employer was telling me.

I kept bothering everybody, kept bugging the union. Every time I had a meeting with workers' comp I told them that still my main goal was to return to where I worked. They told me that the two years was coming up, that I had to think about getting retrained, something else, all this. I didn't want any retraining. I wanted to return to where I originally worked.

When we went down to where I worked, they had studies go on. There were supposed to be accommodations done to the job. They talked about me going back to my original job. Finally, in September 1992, I returned to my original workplace, up in my original work area. The accommodations that were supposed to be taken care of, to this date right today there have been no accommodations made. The job includes the lifting of 88-pound bags of sugar to make batches, 11 of them at a time, like in a time frame. These are still there. They still have to be lifted the same way. The guy who did the study said that nobody should have to lift these. For me to do the job, I've had to do the job. I do lift the bags once in a while. Also, they won't schedule me in that area. They schedule somebody else to do that area.

I'm wondering: Is this what the accommodations are? Do they just take me away and put somebody else there till they get hurt? I really don't know how long I'm going to last where I am. I feel that if at any time my shoulder gives out on me -- I'd been told all along that my shoulder wouldn't come around, I wouldn't be able to do anything. What happens to me now should my shoulder give out? Will my employer then tell me they have no suitable work for me again? Thank you.

Mrs Cunningham: I'd like to thank you for your presentation. I think it's extremely reasonable. I'm not sure, with what Bill has described, if in fact the addition of the word would be helpful. If it is, that's great. I think Bill's story is one that we would hear in our office probably three, four times a week. If I'm not listening to it, my staff are. It has a lot to do with retraining, job availability, job opportunities. Just from Bill's own story today, if I were sitting in my office I'd probably say something different or ask different questions than what I feel comfortable in asking now. I'm not sure what your riding is, but I'm available is the point I'm making.

Again, I refer to the person who was here before lunch, Jim Jewell, who described his story. I think his concerns were less with the legislation and more with the training and retraining and opportunities for education. I know how you feel in injuring your shoulder, but I still also understand why you would probably want to go back to the same company. Am I correct?

Mr Schoffer: Mm-hmm.

Mrs Cunningham: And what was more, the company, the location, that kind of thing?

Mr Schoffer: That, plus I had 10 years there. I don't think anybody, when they work someplace for 10 years all of a sudden wants to be told you can't work there any more and your whole life -- I've got 10 years' seniority there. I finally got to the point where I can take holidays when I want them, because I'm getting up in seniority, and good pay, everything else. I didn't want to lose that; I didn't want to see my life have to change.

Mrs Cunningham: I can tell you right now, Bill --

Mr Schoffer: It's Dale.

Mrs Cunningham: Sorry. What's your last name?

Mr Schoffer: Schoffer. It's okay.

Mrs Cunningham: I mean, if you do want to talk more to me, I wish you would come and see me in my office because I'm not sure how legislation can assist your concern in particular. But I think there is probably a better system. How we work it through, I don't know, but I don't see it in this legislation, because I think that even if we had the "joint" in this case, you might still have your fellow workers and that employer saying, "Look, with what you can do, there may not be or will be a position." If you had it with "joint" in there, then what can we do with not yourself but people in your position who have in fact acquired a certain benefit level and pension level? If that's an issue, that's something that we have to look at, because I don't see it addressed in this legislation. I'm not criticizing the bill in that regard. I'm saying that I think it's a different issue and how do we deal with it? That's all I'm saying. I don't think "joint" is going to solve Dale's problem.

Ms Jones: With "joint" in the legislation, in Dale's case we would have had a procedure and a program to follow and brought him back to the suitable work right away while we worked on the pre-injury job. He was still on the board payroll for that six months that it took us to even get him in a work trial, and all that time it's board money. We could have easily been saying, "Can he just maybe do this job up until we work on this accommodation?" Everything was getting put off and it was that huge time frame of stall where we could have actively had more of a voice if we had an actual structure or program.

Mrs Cunningham: Okay. That's why I said in the beginning that I agreed with your presentation. All I'm saying is that in the end we still have the problem to deal with if there isn't a spot. The legislation may, in some cases, help some employers find a different opportunity for work. I can tell you that here in London there are four or five companies that I've dealt with that would have found that spot anyway. But there's no harm in beefing it up.

1430

Mr Ferguson: Thank you very much, Mr Schoffer and Ms Jones. I certainly want to thank you on behalf of the government members for attending today.

I have one question. I want to pick up, Ms Jones, on the last two paragraphs of your brief to us today. You talk about the position of the Ontario Chamber of Commerce, as well as that of Mr Palmer. I wanted to ask you if you are aware that most, if not all, of the business groups that have appeared here today have suggested that the benefit level for injured workers is much too high, that in fact the government isn't going far enough to reduce the benefit level for injured workers and that the goal that the government ought to have in mind is what's going to happen by the year 2014. It's been suggested on more than one occasion that the benefit level ought to be not 90% of net earnings for injured workers, but that it ought to be reduced to 80% for every injured worker here in Ontario today. That's the position, I understand, of the Ontario Chamber of Commerce.

In light of that, I'm wondering if you would have any comments about what kind of position that would put injured workers in, recognizing -- and I'm not sure the business community has fully grasped this -- that a loss of net income to workers means that people have less money to buy goods and services which many of the members throughout the Ontario Chamber of Commerce participate in selling to people. You don't have to be a rocket scientist to figure this one out. If people have less money, they're obviously going to be buying fewer goods that their members produce.

I'm wondering if you could tell me what kind of effect reducing benefits to injured workers would have on your membership?

Ms Jones: I think that working together in the joint programs helps us to progress forward on how we can make the whole thing better and better all the time. I think taking the money off the back of injured workers just seems like a quick fix. I can't understand at what point we're going to stop, because when we take a little bit away from them and then we just keep going, I can't see how that's going to help the big picture. I just can't see how taking away from them a little bit at a time is going to solve any problems at all.

I have a quote here from Saturday's London Free Press where Labour Minister Bob Mackenzie says, "If we could improve our return-to-work figures by just 10%, I am quite convinced that the total savings would be in the billions." I think that's where the answer is. I think joint health and safety has already come a long way -- I really believe that -- and maybe the employers should be rewarded financially for their efforts. But I don't think return to work is as common a forum in the workplace. We may have return-to-work programs. They may or may not be employer-dictated or joint. I think joint health and safety, as far as it's come, has already shown us progress. I'd like to see the return and the VR goals as good.

Mr Mahoney: Actually, I think you've identified probably the problem and the solution. I really do. In fact, I find it rather interesting that a labour group is here quoting Pat Palmer. That's unusual and maybe a sign of hope. I agree with you that the issues of prevention -- obviously prevention -- and return to work as quickly as possible are ultimately what's going to streamline the whole process.

Maybe I can get your response to a couple of concerns. I think there's more than just the employer and the worker who should be involved in some kind of return to work, modified work, whatever it happens to be, the solution to that particular injury. I think it should involve the medical community, and that could be anyone from a doctor to a health and safety specialist to a physio specialist. It could involve any group along those lines.

In fact, one of the recommendations we made in our report was that the return-to-work program involve people other than the traditionally identified stakeholders of employer and worker and get these people actively involved in coming up with recommendations for the board. It would be more than joint; it would be a total program that would involve professionals in other areas. I just wonder how you feel about that.

Ms Jones: I totally agree. There's a mill in Thunder Bay that presently works. They have a very heavy joint return-to-work program and they're very money-driven as far as their progress is concerned. They know the dollars and figures on every little piece of togetherness that they do. In a lot of their stuff that I've read, it has shown that another issue they cover is the education of the workplace to help the people identify maybe what causes an RSI, and maybe we won't do that, because there are things specific to each person's job, maybe properly how to lift. Everybody assumes people know that, but sometimes they really need to be told or they just don't know. Especially in the field of RSIs, people need the education, and somehow that seems to come under return-to-work programs.

Mr Mahoney: You mentioned, though, if I could just interrupt you, that the situation under health and safety committees etc has worked and you've seen positive action out of that, and your comment -- I can't quote it exactly -- was to the effect that maybe the employer should be rewarded for that.

Ms Jones: Sure.

Mr Mahoney: So in essence, then, why wouldn't you have a system where the employer could actually improve their bottom line if they helped the worker return to work quicker, if they helped prevent accidents, so it becomes an incentive plan, just like health and safety, rather than a punitive plan of action that this bill shows with WCB police coming in and saying, "Do this and do that." Put the onus on the employer by giving them the one thing that every labour group has said, you know, they're driven by profits. Let them increase their profits and get people back to work. Does that not make more sense?

Ms Jones: The only thing is that if it just depends on their profits, sometimes they don't have a way to know the direct financial gain by just going by the overhead profit. They need to be specifically rewarded, as in their -- when employers that I deal with get a refund, they're very proud of it. They let us know how much it is, and it has to come back in that big chunk of dollars.

In the Thunder Bay issue that I referred to, they have actually found ways to master the specifics of it. I think most employers may not give that the time, but if they were rewarded with this, with "joint" added to this section, I just think they'd almost be forced. All of us, even the labour side, would be kind of forced to work together to make it happen.

Mr Mahoney: Good points. Thanks.

The Vice-Chair: On behalf of this committee I'd like to thank the American Federation of Grain Millers, Local 154, for their presentation this afternoon.

I'd like to call our next presenters, Graham E. Smith and John C. Gallant. Are they here? No. Okay

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

The Vice-Chair: I call the Ontario Public Service Employees Union, Local 528. Good afternoon and welcome. Please identify yourself and then proceed.

Ms Diana Clarke: Yes. My name is Diana Clarke, and I am the OPSEU workers' compensation benefits officer. I cover the entire province and handle, along with two other colleagues, the bulk of WCB appeals for the worker's compensation for all OPS and the broader public service. Also I'm a member of Local 528 out of Toronto.

Ms Cindy Haynes: I'm Cindy Haynes. I'm the chief steward at Local 108, which is Elgin-Middlesex Detention Centre, and I'm with OPSEU.

Ms Clarke: You have before you our brief and we thank you for the opportunity to be able to make this presentation today. There are really two parts to this presentation, a bit of the formal, which you have in front of you, and we'd also like to discuss a couple of the situations that we have found common that have happened at the work site that we think would be of interest to the committee.

I'd like to start with what you have before you, which is the brief. OPSEU has appeared and will be appearing a number of times in front of you, but our focus today we believe is rehabilitation and reinstatement, and that's what we'd like to focus on today. We will be making some comments in the Sault and other locations on some other items, but this is what our focus is and this is what we believe are the primary needs that need to be addressed. This brief will outline to the committee OPSEU's rehabilitation and reappointment concerns and recommendations surrounding Bill 165.

1440

Our union represents about 95,000 workers across Ontario, and its members also represent the largest number of appeals for unorganized injured workers in the workers' compensation system. We want it noted that the office of the worker adviser are members of our union, as well as many community legal clinics.

OPSEU has always supported the right of injured workers to rehabilitation and re-employment. It includes the right to return to work safely and with dignity. Unfortunately, the current Workers' Compensation Act only provides for workers, for the purposes of vocational rehabilitation, the right to an assessment and contact by the board after 45 days of a lost-time claim. All other board vocational rehabilitation services are offered at the discretion of the board. Reinstatement remains just an obligation to re-employ within the first two years of injury or within one year of the notice of the worker being found capable of returning to any type of work or until age 65, whichever is sooner. It also only represents workers who actually have injuries after 1990. We have a lot of workers who have pre-165 injuries, and we have a lot of difficulty in re-employing these workers, because it tends to be the employer sets a separate standard for these workers.

Bill 165 proposes a number of changes to the vocational rehabilitation process and re-employment, particularly focusing on return to work with the accident employer. The failure to successfully reintegrate injured workers into the workplace is, aside from poor health and safety practices, the single greatest source of avoidable costs in the workers' compensation system.

Board statistics indicate that the majority of disabled workers who successfully return to work after injury are employed by the accident employer. It must be recognized that in most cases, a successful return to work to the pre-accident workplace is actually negotiated between the workplace parties themselves. The key to a successful return to work is the trust between workplace parties.

Bill 165 offers employers unprecedented access to medical information and an increased say in vocational rehabilitation programs, even when the relationship does not exist. Even when an employer has flatly refused to re-employ an injured worker, it will now have the continuing right to interfere with that worker's rehabilitation.

Federal and provincial human rights laws require all employers in Ontario to accommodate their injured workers unless it can be shown that the accommodation would cause undue hardship to the employer. What sense does it make for the workers' compensation system to impose a lesser standard? Whenever accident employers fail to re-employ injured workers, the social cost is not eliminated; it is merely passed on to other employers, the board, individual workers and ordinary taxpayers.

OPSEU uses the Ontario Human Rights Code standard for accommodation in all return-to-work and accommodation situations for its members. Unfortunately, the current limited language under section 54 has been insufficient to bring the employer to the table to discuss appropriate accommodation re-employment. Frequently, we must resort to the filing of grievances to deal with these issues. Bill 165 will not likely substantially improve injured workers' rights for return to work with an uncooperative employer if they are not covered by a collective agreement and/or they must use the existing human rights laws.

We have found that once we are able to work with employers in a cooperative manner on returning injured workers to the work site, the process has not been difficult and a number of creative solutions have been arrived at without inconveniencing anyone.

So there are a number of improvements we feel need to be done to section 54, and some of them are not part of this bill, but having had a lot of experience where our members currently represent about 50% of all re-employment hearings, we think we have some suggestions for the committee.

OPSEU does welcome the introduction of the proposed subsection 54(11.1). Although the board has the power to do this even since the introduction of section 54, this explicit authority will make it clear that the board need not wait for the application from an injured worker before beginning this section 54 process. It is hoped that it will also remove some unnecessary complications and time delays.

Since its introduction in 1989, the threshold requirements for the section 54 obligation have been unnecessarily restrictive. As pointed out earlier, only workers who are under Bill 162 are covered currently as well, and we didn't put that in the brief but we'd like you to note that. At present, an employer must regularly employ 20 or more workers before being subject to the section 54 obligation. This leaves the fate of many OPSEU members in doubt, including those employed by community legal clinics to represent injured workers.

The same may be said of the requirement that an injured worker must be employed by an accident employer for a minimum of one year before the injury. No such standard is required under the Ontario Human Rights Code.

Section 54 should be amended to impose an obligation to offer suitable modified work whenever this would not cause the employer undue hardship. At present, subsection 54(5) only obliges employers to offer suitable work which "may become available." Employers who are not willing to make work available when it is within their power to do so should directly bear the costs of their actions.

Section 54 should be amended to oblige employers to maintain the employment of injured workers for a minimum period of time which would allow them to become fully integrated into the workforce. At present, if an injured worker who had a serious work injury returns to work two weeks before a deadline set out in subsection 54(8), the re-employment obligation lasts only two weeks. This hardly qualifies as vocational rehabilitation.

The proposed move towards front-line adjudication will have little effect unless the board is explicitly empowered to apply a rigorous, objective standard to employers' behaviour. The period of subsection 54(10) presumption must be extended to cover the entire period of the obligation. Right now, if the employer takes you back after three months, the presumption is now on the worker that they've satisfied and we have to go through the process of appeal to get the employer to continue to employ this worker.

Board policies setting out a just-cause standard for rebutting the subsection 54(10) presumption and mandating the imposition of the maximum penalty in all but the most exceptional circumstances should be enshrined in the act. These policies were arrived at through a lengthy process of bipartite consultation and embody a just and economically sound interpretation of section 54. Just cause is the standard that's applied in the Ontario Labour Relations Act. It's the same one we believe should be applied here.

When employers fail to take reasonable steps to mitigate workers' wage loss and rehabilitate workers through re-employment, they must bear the cost of rehabilitating workers by other means.

We'd like to comment on the consent and the release of medical information, the section that's been proposed in the bill. This section obliges a physician to provide prescribed information about a worker's physical abilities with the worker's consent and would be based on an amendment to subsection 63(2) to create a regulation that sets out the prescribed medical information.

The proposed subsection 51(2) requires the consent of the worker. However, will a worker be deemed uncooperative by the board if he or she refuses consent? Employers have already attempted to circumvent the current sections 23 and 79 of the act. We believe the current wording of the bill may open further problems.

We would submit that there's no place for the employer to be contacting the worker's doctor directly. Through a prescribed form provided by the board or via the worker, we believe the necessary information can be provided to facilitate appropriate accommodation and return-to-work programs. The form should be drafted in consultation with representatives of the business, labour and medical communities and be provided to the government for the regulation process. It must not contain any diagnostic information or violate any doctor-patient confidentiality rights.

The intent of the prescribed information is to facilitate early-return-to-work programs only. Before a doctor should be mandated to provide information, the doctor should feel comfortable that the information provided will help in accommodating the patient's disability safely through a workplace program.

OPSEU agrees with the position that was adopted by the OMA:

"The patient's responsibility is to ask the doctor for the information and understanding of their condition that they require to safely re-enter the workplace. The doctor's responsibility is medical diagnosis and treatment, medical rehabilitation and the provision of medical information. The employer is responsible for providing modified work options for the patient to choose from.... It is the patient's responsibility to keep the employer informed about all aspects of their rehabilitation process. This will require enhanced dialogue with their physician but that is to be encouraged anyway."

There is no need or justification for allowing employers to insert themselves into the doctor-patient relationship. Employers should support injured workers in a safe and gradual return to normal work duties rather than make them feel like criminals and layabouts who need to be constantly monitored by a higher authority. Workers want to go back to work. They don't want to delay. They know the penalty; they'll be cut off benefits. So in reality, giving a form and getting it done would be the easiest way.

Employer's vocational rehabilitation: The numerous amendments to section 53 "improve access for the employer to the rehabilitation process."

The employer already has the obligation to participate in the vocational rehabilitation process and offer re-employment. It's the worker who needs the vocational rehabilitation, not the employer.

Should an employer be able to interfere in a worker's vocational rehabilitation process if the employer has been deemed to be uncooperative or unable to provide such accommodation at the work site? The proposed subsection 53(10) would give the employer that right.

1450

Should an employer be able to interfere if the employer has not accommodated the worker? Once an employer has been deemed uncooperative to accommodate the worker's compensable medical impairments, offer re-employment or, due to reasons beyond anyone's control, cannot offer any work even after vocational rehabilitation, the employer's involvement in the vocational rehabilitation process should end. We currently have a number of employers who suddenly appear and interfere in workers' retraining and education programs and offer short-term and limited re-employment, just to reduce the cost of the FEL award. Allowing employers to be involved in every vocational program when re-employment with the pre-accident employer is not an option is not only an intrusion on the worker but detrimental to the vocational rehabilitation process.

Subsection 53(13) allows for extending assistance to workers who are seeking employment. By this time in a claim, the worker may no longer be working for the accident employer. The employer should not be participating in the initial decisions which extend rehabilitation to workers once work at the pre-accident employer is not available.

We've attempted today to focus on specific concerns with respect to re-employment and reinstatement, and although we have a number of concerns about the bill, we fully support the move to a bipartite governance of the system. It's the only way for workers and employers to deal with the necessary policymaking, rehabilitation and re-employment issues at the workplace and to provide excellent and fair compensation for injured workers.

Maybe you'd like to make some comments, Cindy.

Ms Haynes: Okay. As a chief steward at my workplace, I'm often involved in a lot of back-to-work representations for our members, and as well I have a pre-1990 WCB injury which I've had to get accommodation for.

I'd like to specifically talk about one problem at our workplace in which our management supplied ergonomically designed chairs for the work stations for all the officers to use. Within a few months, there were some chairs that had gotten broken. They've gotten a lot of use. They decided to remove all the chairs. They removed all the ergonomically designed chairs and replaced them with plastic lawn chairs. They look exactly like the ones you buy, the white moulded chairs. So all the officers, and some work 12-hour shifts, have had to spend long periods of time on these chairs.

The workers of course are very upset, because they're very uncomfortable. It's causing them problems. There have been work refusals. There have been seven claims filed under WCB for these chairs. The chairs that were removed are being stored in our building. They're still perfectly good, but they're not being used, and management is sticking by the fact that these chairs are suitable. We're still amidst a lot of different processes, appeals and different things, in order to try to get our comfortable ergonomic chairs back.

I think the big thing is that there have been seven members who have lost time, and this is all unnecessary. It's costly for the employer and it's disruptive medically for the worker. The employer's reluctance to replace the chairs has created a poor relationship between the employees and the employer.

I have a personal accommodation that I've had struggles with. I had a 1987 injury, and when I tried to get accommodation in my workplace, I was told: "We don't have to accommodate you. You're a pre-1990 injury. We don't have to accommodate you under WCB." Of course, my response is, "Right, you don't have to, but you do have to under the Human Rights Code."

I had to file a grievance. I had to file a human rights complaint. I had to temporarily accommodate myself on the appropriate shift, and it was a great difficulty. I did not get accommodation. It was a WCB injury. I did not get any accommodation. I had to fight and fight and fight and finally have got my accommodation.

But that's all unnecessary, and the WCB act does not address those pre-1990 injuries, so we often have to resort to other processes -- the Ombudsman, grievances, the Human Rights Code -- and it's all unnecessary. WCB should be falling in line with the legislation.

Mr David Winninger (London South): Cindy, you addressed in a very specific way some of the accommodation problems out at Elgin-Middlesex Detention Centre, and Diana mentioned earlier that there could be a more cooperative approach, I guess, between labour and management, which would help to resolve some of these returning-back-to-work issues.

Just before you, you may have heard the American Federation of Grain Millers, Local 154, suggesting that there should be a joint committee designed to reintegrate workers back into the workforce.

Are steps being taken in that regard where either of you are employed or do you see this as something that's going to be relatively difficult to develop, given some of the entrenched attitudes towards this?

Ms Haynes: There have been efforts made. I'm also on the employee relations committee with management. We have attempted to get in the back-to-work rehab meetings that are held between the worker and the rehab case worker and management. We have attempted to get management to agree that every time they have a back-to-work meeting, the person be represented by a union person. Their response is, even though they may have agreed with it, it's up to the individual member if they want representation or not. So they will not agree. They say they would be forcing somebody to have union representation.

But I do think it's very important, because many of the workers who decide to go back without union representation run into a lot of difficulties. They don't know if their rights are being violated, they don't know necessarily what they're entitled to. I think it's very important that the worker has a representative there, someone who is a little bit knowledgeable, so that the employer cannot say, "No, there is no job here for you," because we can bring a lot of ideas into the plan.

Mr Offer: Thank you very much for our presentation. You've indicated your concern with section 51, dealing with the consent of the worker, that if consent is not given, then the worker may possibly be deemed uncooperative. As you will know, we have heard that concern earlier, and I'm wondering if, maybe not now but in the next while, you might share with us how you believe the particular section could be changed in order to meet your specific concern. My question deals with your concern around subsection 53(10), which basically would exclude the employer from vocational rehab if there has been some finding that the employer, somewhere in the process, has been deemed uncooperative.

I would've thought that we would always be wanting to try to get the employer, the injured worker, WCB, the physicians all working together to try to deal with a vocational rehab type of program, and to exclude the employer from that when the employer wants to be part of it seems a little bit difficult for me to understand. I'm wondering if you might want to clarify that position, and if it is to exclude the employer, when that would take place, in your opinion.

Ms Clarke: I think that the key words here are "uncooperative employer." Where the employer and the worker are working with the board and are attempting to do return to work, there is no problem. That's not an uncooperative employer.

What we're really addressing are employers who -- and we can say in the unorganized sector particularly -- have absolutely refused to come to the table, and many of our appeals for re-employment are around firing. They're literally fired. The employer simply does not want to be part of it. They don't want to offer the job. They have a ruling from the re-employment branch saying they're not willing to cooperate. They have basically walked away from it.

At that point, where they've had an obligation and the board has ruled on it, and we've even gone to the hearing, where the right of appeal is there, to me, that's uncooperative. At that point, they've lost their right.

In all honesty, if the employer says, "Look, we've really tried and there isn't anything there," that's not an uncooperative employer.

Our problem is with the employers who walked away from the process and come back two years later, and the person is in the middle of their last year of a college program or they've got a new profession, everything's been agreed to, the board has monitored this very clearly, they didn't get the rehab without fighting for it in the first place, and retraining, and then all of a sudden the employer walks in and says, "I've got a job for you for six weeks," and the board opens the file up and says: "Maybe you shouldn't go to school any more. We're cancelling it."

As far as I'm concerned, what a good rehabilitation program is, particularly with the employer we represent, which is the Ontario government, in dealing with it, is, "There's a job for somebody; let's figure out about retraining them and getting them into a job that may be helpful, given their disability." Our position is just with employers who just will not work with us.

1500

Mrs Witmer: Thank you very much for your presentation. I don't have any further questions, but I did appreciate your explanation that you just gave.

The Vice-Chair: On behalf of the committee, I'd like to thank the Ontario Public Service Employees Union, Local 528, for their presentation today.

GRAHAM SMITH

The Vice-Chair: I now call Graham Smith and John Gallant. Welcome to the committee.

Mr Graham Smith: Thank you, Mr Chairman, and members of the committee. My name is Graham Smith and here with me today on my left is Mr John Gallant. While we are union members, we are here as individuals.

Again, thank you for allowing me the opportunity to address you today with respect to the proposed changes in the Workers' Compensation Act. One of the most serious problems faced by not just the WCB administrators but also all of the participants, including employers, workers and the public at large, is the immense size of the unfunded liability. Any reduction in unfunded liability should be accomplished not on the backs of injured workers but through accident prevention and an intense focus on re-employment. I think the intent of the bill is to do just that; however, it comes up a bit short by de-indexing benefits to injured workers.

I understand the unfunded liability is still increasing, but at a slower growth rate, and this is, and should be, unacceptable to everyone. I know it may be overly simplistic to say that, but if every time I made a mortgage payment my principle amount increased rather than decreased, it would not be long before I was in serious financial trouble. The thrust, therefore, of this committee's examination and that of the royal commission subsequent to this committee, should be to get workers back to work and provide a safer working environment.

In this regard there remains a very large loophole with respect to partially disabled workers in the construction sector, the ICI sector. In the case where trade unions have exclusive right to refer members to work, in the case of unions which operate in a hiring hall capacity, I would refer this committee to a royal commission report completed in December 1974 by His Honour Judge Waisberg entitled Report of the Royal Commission on Certain Sectors of the Building Industry. What the report clearly spelled out is that in this particular industry the primary and enduring relationship was not between the employers and employees; rather, it was between the employee/union member and the trade union, which held the exclusive right to refer members to work.

In the highly competitive atmosphere between different trades trying to increase their jurisdiction, there exists the all-too-often-realized problem of trade unions being reluctant to send partially disabled members to employers. In fact, my particular trade union has a policy it refers to as "healthy competition" that allows employers in our sector to request 100% of the men they hire on the job, which is diametrically opposed to the exclusive right of the union to refer all members.

Basically what they're doing is, they're not living up to their responsibilities. Given the transitory nature of the construction sector, one's accident employer may not operate another job site in the geographical area of our collective agreement for years, and the partially disabled worker's only recourse is to other employers who, given the right to request by name 100% of their workforce, are somewhat less than enthusiastic about hiring partially disabled workers. This leads to massive drains on the vocational rehabilitation funds for injuries that, but for failure of the trade unions to enforce, would not be of such a serious nature as to cause one to change one's livelihood, which requires such extensive vocational rehabilitation services.

I believe that the extent of this problem should be analysed in great detail with a view to trying to assist, if possible, or mandate, if necessary, the local unions having contractual rights of exclusive referral. In other words, the hiring halls keep pools of highly skilled workers for quick referral, thereby avoiding the need of the employers to quickly put together skilled help or retain well-paid guys to sit around and do nothing for periods when they don't need them. It's beneficial to both the employers and to the trade union members in that you have a pool of highly skilled workers who you don't have to keep on payroll in the times when there's not much work, and yet when you need those workers, you can call on them within a day and you have the necessary men at the time.

In short, it would go a long way to reducing the unfunded liability if employers were prohibited from bypassing partially disabled workers by a process of -- and this is the key. It's not so much that they're rejecting partially disabled workers as they they're simply not selecting partially disabled workers, and all of this with the blessing of some of the trade unions as part of what they refer to, again, as "healthy competition."

If I can, I'd just like to go on record with some of my recommendations. I would say at this time that many, many of my concerns have been addressed by previous speakers who have said it a lot better than I could. I'm not in favour of the introduction of the deindexing formula, the Friedland formula. I've worked out the figures a little bit and it seems to me that there's no protection whatsoever once the consumer price index exceeds 6.667%. You're capped at that point, so if the inflation rate is 7%, 8%, 9%, 10%, injured workers eat that.

The $200-a-month increase to workers is welcome but should be expanded to cover all injured workers, without specifically leaving any out. Obviously, they're injured workers; they're no different from other injured workers.

When establishing the merit and rating programs for employers -- now, I heard this from a number of employers' delegations that have come before you that were televised in Toronto that seemed to trumpet the fact that their accident rates had gone down. I just wondered if they were taking into account the fact of the globalization and the downsizing and whether or not the number of workers they actually employ would offset the number of accidents that are being reported on a percentage basis and if that wasn't likely the reason for the reduction in injuries as reported, not to mention some of the other reasons that I've heard from other delegations. I won't go into all of them.

I believe the new mediation policy, while well-intentioned, will cause just the opposite with respect to the unfunded liability. What you're going to get are answers quickly, and you're going to find there will be a lot more people who object, who appeal. I believe it will turn into a morass of appeals. There might be a better way; I don't know what it is. That may be something to refer to the royal commission. Perhaps it wouldn't be the best idea to include it in this particular legislation.

1510

The new ability for the board to penalize non-cooperative employers with respect to vocational rehabilitation services is a balanced and long overdue approach, and I believe this change is especially relevant to the construction industry.

With respect to the medical information, I'd also weigh in that it should not include any diagnostic information, and if I could, I'd like to add my own personal reference.

When I went to the Ontario Labour Relations Board with an application against my trade union for unfair representation, three years after my accident the accident employer suddenly applied for -- I believe it's the secondary enhancement fund. There was no adverse decision in my case; they couldn't get my files. When they applied for the secondary enhancement fund, my file suddenly appeared at my doorstep, followed days later by a subpoena from the trade union for my worker's compensation file.

So you should be very careful as to what you put on the form you wish the doctor to fill out. It could be abused; there's potential for abuse. It should deal specifically with back to work, the worker's abilities, limitations, so on and so forth.

I believe that the committee should recommend to the royal commission that they look in depth to the re-employing of partially disabled workers -- and I apologize for the spelling error in the brief; that does say "partially disabled workers" -- in the construction sector. Trade unions that operate hiring hall referral lists should be included in that they represent a unique situation. Unscrupulous trade unions that have, by virtue of their collective agreements, exclusive right to refer their members should be mandated to institute a policy with respect to partially disabled members.

Now, this I put to the business manager of my local union on the stand, and I asked him, "What is your policy for disabled workers?" He said, "I don't have one," and that basically is the attitude in this situation. Given the transitory nature of the industry, the designated employers group, as a whole, should be deemed the accident employer. That way a disabled worker would have an opportunity to go back to work.

Again, I thank you for the opportunity to address this committee and I look forward to answering any questions you may have.

The Acting Chair: Thank you. Does your colleague wish to say anything?

Mr Smith: Not at this time.

The Acting Chair: Okay. There's approximately a short two minutes each. You start off, Mr Mahoney.

Mr Mahoney: We've had representatives of the Labourers' International -- if you watched it on television you might have seen them -- and the Council of Ontario Construction Associations' representatives as well coming before us. The labourers made a recommendation that a bipartite committee be struck to advise the board on areas around construction and injuries and return to work and all of the issues that are very special and unique in the construction industry. The labourers put forth the idea; COCA, in response to a question, said that they would endorse such a proposal. So you'd have an actual structured committee, separate from the rest and dealing specifically with construction issues.

Do you have any comments on that type of process and whether or not you think it would work?

Mr Smith: I would hope that any specific committee would include not just -- can it be tripartite? Can we also include the workers themselves? Oftentimes not all the workers are represented by the union officials, and I'm afraid that the same thing will happen perhaps as what happened with Bill 80 as far as the ICI sector is concerned. Special interests will come in and look after their own, and they're not really looking after --

Mr Mahoney: A good analogy, particularly on Bill 80. We'll take that into account.

Although you're here as individuals I guess you're coming from a labour perspective, but you've identified the problems with the unfunded liability as being real and this has to be addressed. Your analogy of the mortgage is a perfect one: You just keep on making payments but the mortgage goes up; it wouldn't take long before they'd be moving you out of the house. The same analogy can apply here. But you've also recommended that everybody should get the $200 a month and some other things that drive the costs. Do you have in a general way a statement that might help the committee in determining how those costs should be funded?

Mr Smith: Yes, sir. I've tried to address it as clearly as I can and you'll realize it's not easy to be here.

Mr Mahoney: No, you're doing just fine.

Mr Smith: My suggestion is, as part of the royal commission inquiry, one of the things that should be addressed is exactly the trade unions which have hiring hall systems, because what's happening is, even though they're mandated under the Labour Relations Act to fairly refer and fairly represent, it's not happening. What they're doing is competing with other trade unions. They're saying, "We want to get a little bit more of this one's jurisdiction and we'll supply nothing but the 24-year-old guys with welding tickets and running shoes," if I may, and they're leaving out the disabled and partially disabled workers. If a company can request 100% of the guys on the job, they're going to go after the best they can, and they do. What it does is, it leaves these guys to go back to workers' compensation and say, "I need vocational rehab" and you're stuck for years with these guys, giving them another livelihood because they have a repetitive strain injury, rather than being allowed to go back on the job site and be accommodated. There's lots of jobs these guys can do. They're not getting them.

Mrs Witmer: Thank you very much for your presentation. I think it's been pointed out that there appears to be some need to set up an independent body to handle the construction industry, but I think you've made a good point as well. You refer to the fact that sometimes the unions don't necessarily represent all of the employees and I guess, just to take that a little further, that's one concern I would have with the bipartite nature of the board of directors as well for the WCB, because oftentimes the non-unionized worker is not represented either. There are unique interests.

I want to get back to what you've said here about any form that is drawn up, I think you say, to include medical data, should not be made available to non-cooperative employers. How do you determine who's a non-cooperative employer and who's cooperative?

Mr Smith: A hard one. An employer who has not participated in bringing the worker back to work. For instance, in my own personal case my accident employer was contacted by the Workers' Compensation Board. They said they had no light duties. Well, they've written themselves out of any prerogatives at that point, I believe.

Mrs Witmer: But I guess that's a challenge we face: What criteria would you use to establish which employers would get the medical data and information and which employers would not? It's just more bureaucracy and more process and that's some of the difficulties, I guess, with WCB already, that it's not being managed as efficiently and effectively as possible. I appreciate your concern, but I'm not sure how you would achieve that goal.

Mr Winninger: I was intrigued with your point about the merit and rating system for employers that would essentially reward employers that reduce the frequency of workplace accidents. If I understood your point correctly, it was this: There may be a reduction in the frequency of workplace accidents not because a number of workplace safety and health hazards have been removed, or because there's better training of workers and managers, but simply because there may be a reduction in the size of the workforce. Is that correct?

Mr Smith: That's correct.

Mr Winninger: So would it make sense to you that there be some kind of weighing of the size of the workforce against the reduction in the frequency of workplace accidents? Would that be what you're looking for there, some kind of weighing factor?

Mr Smith: Yes, sir, and I believe it would be rather easy to do. As the compensation rate is based on per-$100 payroll, that payroll figure is what you could use to base whether or not -- if they've got a much smaller payroll now, perhaps that reflects their accident rate going down.

Mr Winninger: That makes a lot of sense to me. Thank you.

The Acting Chair: On behalf of the committee, Mr Smith, and Mr Gallant, I'd like to thank you for coming out today and helping us in these hearings. You can listen in later on; you've already seen us on TV. I appreciate your taking the time to listen in.

1520

CANADIAN AUTO WORKERS, LOCAL 444

Mr Ken Lewenza: My name's Ken Lewenza. I'm the president of Local 444, CAW, representing Chrysler workers in Windsor and marine division fish plant workers in the Leamington area. With me is Gary Parent, who's the financial secretary of Local 444, and Red Wilson, the vice-president of Local 444. I may add, in terms of introduction, both fellows have over 50 years experience between the both of them on dealing with compensation, and I'm talking literally thousands of workers first hand and probably a couple of thousand more who just come into our office and seek advice from either one of them at any particular time. So our brief today will be dealing with a lot of what we would consider the human element problems as we relate to the problems in the workplace as it relates to injured workers.

For the purpose of time -- you'll see in your brochures there, if you'd go to the insert, the yellow page -- we will just deal with the sections that we feel we have particular problems with and go through them. Hopefully, it'll generate some positive discussion and concern because, as I've indicated, both of these fellows have a tremendous amount of experience and knowledge and firsthand information. Gary, go ahead.

Mr Gary Parent: I want to make the clarification that it's not 50 years of age, at least at this side of the table.

Mr Dave Wilson: I can't say the same thing.

Mr Parent: As Brother Lewenza has indicated, we'll try to go through the brief section by section on sections that we disagree with as a local union and actually as a total CAW union.

Subsection (7.1): Our concern as it relates to this section is that if there's a cost-sharing agreement among two or more boards pertaining to claims for certain occupational diseases such as silicosis or hearing loss, this proposed section would prohibit such agreements. We interpret this section to mean that if a worker receives a meagre pension for the above industrial diseases from one province but the bulk of his or her exposure was in Ontario, this proposal would appear to prohibit the payment of any compensation from Ontario. As well, receipt of CPP or a private disability plan could be affected as agreements among the various boards cannot override a statutory prohibition. We therefore recommend that this proposal be deleted.

Section 43: This section deals with deeming, which is a practice by which the board invents a phantom job, then deducts this from the worker's future earning loss pension calculation. Great injustices have taken place since this practice has been going on since Bill 162. As a result, we recommend that section 43 be amended to prohibit the practice of deeming. We feel that only if a worker turns down a real job and not an imaginary job should this be considered in the calculation of future earning loss.

Section 51: We feel this proposal comes from the employers who seek to frustrate those workers with claims and interfere with, not help, vocational rehabilitation efforts. I heard just a few submissions here this afternoon and that clearly comes out in those few presentations that I heard. I'm sure this committee has heard many presentations on the whole question of employers wanting to further circumvent the system rather than help their injured workers. Subsection (3) requires the board to pay for medical reports, so the employers can demand such reports at will and they have no obligation to pay for them. That's under the proposed recommendation. We strongly recommend that the proposed amendments to section 51 be deleted.

Section 53: This section has been rewritten to provide employers with board assistance for vocational rehabilitation. Employers under current legislation have an obligation to provide vocational rehabilitation assistance to help injured workers, and it is the board's role to insist that employers fulfil their obligations.

I state to this committee candidly and uncategorically that it is not happening in this province that employers are accommodating injured workers to the degree that they have the legal rights now of the present legislation to do so. There's no teeth in the current legislation to force employers to accommodate injured workers in this province. There are thousands of injured workers who are thus being ill-treated by the current legislation, let alone the amendments that are in Bill 165.

We therefore oppose the addition of the word "employer" to subsections (1), (3) and (9) and recommend it be deleted as well as from subsections 2.1 and (10). In fact, we recommend subsection (10) be rewritten as follows: "If the worker requires a vocational rehabilitation program, the worker, in consultation with the union if there is one, and the board shall design the program and the board shall provide it."

Section 54: It is apparent that the current legislation is not working on behalf of injured workers, and we feel that more authority to exercise this legislation should be included in the proposed legislation whereby the board can order an employer to fulfil its obligation to the worker as it pertains to vocational rehab, and for the reasons that I stated earlier.

Section 56: We do not feel the proposals in this section truly reflect bipartite because of the two public-interest spots on the board and feel that true bipartism should mean that in addition to what has been proposed, the two public spots should reflect an additional union and employer appointee.

Section 58: We are completely opposed to the proposal in subsection (1) requiring the board of directors to act in a financially responsible and accountable manner in exercising its powers and performing its duties. We recommend in the strongest possible terms that the proposed section 58(1) be deleted, as we believe it is the directors' responsibility to ensure that the system is administered fairly and to ensure that injured workers receive compensation benefits in a just manner and not strictly on the financial viability of the programs or the funding.

Subsection 63(2): Because we're opposed to subsection 51(2), we are also opposed to subsection 63(2). We feel that if subsection 51(2) is deleted, then so should this subsection. If, however, subsection 51(2) becomes law, then subsection 63(2) is needed.

Clause 65(3)(h): Because we feel that far more workers fall through the cracks than is realized, we recommend that this clause be amended to add the phrase, "and addressing any undercompensation of benefits provided under this act."

Sections 72 and 72.1: We are very concerned about using mediation as a means of settling all disputes rather than dealing issue by issue as is currently done through the appeal procedure.

Section 95: We do not support the change from the existing system in which the Ministry of Labour determines the IDSP budget to that of the board determining the ODSP budget. The reason for this is simple: Just as the board should be at arm's length from the ministry, so should the ODSP be at arm's length from the board, and just as the offices of the workers and employer adviser remain separate.

Subsection 95(8): We recommend a new clause be added which would read: "(e) to make decisions about descriptions of diseases and processes in schedules 3 and 4 which shall become regulation by order of the Lieutenant Governor in Council within two months of the decision."

Duplication and waste should be eliminated, the ODSP should make decisions about the occupational disease schedules and the board should implement them.

I'll ask Red to continue on.

1530

Mr Dave Wilson: Subsections 103(6) and (8): Although there were no specific recommendations on these two sections, we would like to express our opposition to these sections and recommend that they be deleted and the board use a flat-rate assessment system. A flat-rate system would do several things. First, it would dramatically decrease board administration costs which are high as a result of experience rating and the constant tinkering with the assessment rate groups. I may add that this at the present time has added $150 million to the unfunded liability because of the off balance.

Subsection 147(14): Although we agree with the proposed $200 increase in pension to pre-Bill 162 pensioners, we are not in agreement with it being assessed to a person receiving a subsection 147(4) supplement. As you may or may not be aware, there are a number of workers who were made ineligible for this supplement due to their age -- 65 as of July 26, 1989 -- and yet they too are suffering from inadequate pensions just as the younger workers are.

We feel that these injured workers should be allowed to make application and be paid the same $200 as those workers in receipt of a permanent partial disability award, even under subsection 43(1) of the pre-1985 act.

Unfunded liability, subsection 132(2): This section is not included in Bill 165 either, but we would be remiss if we did not make comment on this issue. We feel the controversy surrounding this section has been overexaggerated when we look at the fact that at present WCB is 37% funded. By contrast, in 1983, the WCB was 32% fully funded. The act was not eroded in 1983. In fact, there were improvements to the act in 1985, including the creation of the Worker's Compensation Appeals Tribunal and the introduction of full indexing.

We believe the employers are using the unfunded liability in the same way they used the federal deficit: as a way to frighten people into thinking that social programs must be forfeited. We feel the cause of concern over the unfunded liability was created by those corporations that have not paid their fair share of assessments in the past to cover future obligations.

Are the employers who are complaining loud and long about the current unfunded liability proposing to pay more money towards the board's fund to ensure full funding? No, of course not. They rather seek to cut pensions and other entitlements through the Friedland formula which erodes indexing.

Section 139: On taking the above into consideration, we recommend that the provisions of section 139 be deleted and be replaced with a requirement that all employers in the province of Ontario be covered by workers' compensation.

Subsection 148(1): We, as a labour movement, have made submissions, we have lobbied politicians like yourselves and after decades of this lobbying, we finally won full indexing in 1985. The proposed Friedland formula proposes to erode pension indexing drastically. We feel the cost savings to the board by using the Friedland formula will come directly from the pockets of injured workers in this province who can least afford it. We recommend that the Friedland formula be scrapped and that the present full indexing formula of subsection 148(1) be retained.

Universal disability: We cannot let an opportunity go by to state that our union supports in the strongest possible terms a universal disability system. We want to ensure that the government fully supports the royal commission's consideration of this issue since terms of reference for the royal commission were not explicit.

Committee members, were it not for the vision of trade unionists and progressive forces throughout Canada during the Depression, in spite of adversity more difficult than the present neoconservative agenda, we would never have achieved unemployment insurance, family allowance and old age pensions. We need the Ontario royal commission to thoughtfully consider how to introduce a universal disability plan.

In conclusion, we have covered a number of concerns as they pertain to the proposed legislation and also concerns on issues that were not covered in the proposed legislation which we are asking your committee to recommend as legislation.

The only way we feel a true cost savings will materialize is if there are safer plants through improved health and safety legislation and not at the expense of cutting pension indexing or other measures we have touched on in our submissions.

We respectfully ask this committee to consider our recommendations and incorporate them into Bill 165. We would then look forward to participating in a royal commission to study ways in which we should proceed in rebuilding the system so it will reflect the needs of our society in the future.

Mr Lewenza: On behalf of Local 444, we want to thank the committee for giving us this opportunity to give this presentation.

Mrs Witmer: Well, I can see sometimes why progress isn't made at the table. I don't see a lot of effort made here to work with the employer community in resolving the situation, and that is to try to ensure that injured workers get back to work as quickly as possible. I find this is somewhat confrontational and I'm really disappointed that you don't acknowledge the fact that there is a need to be financially responsible and accountable. You say that in section 58, "We are completely opposed...to requiring the board of directors to act `in a financially responsible and accountable manner.'" I don't know how you can say that. Are you not concerned that there be money available in the future to pay for injured workers, to pay for their benefits?

Mr Lewenza: I think if you go further into the report, it tells you how to do that by having the employers who do not pay pay their share.

Mrs Witmer: I would suggest to you that the employers did in 1985 decide that they wanted to reduce the unfunded liability. They took hits three years each of 15% and 10% increases. They have certainly been paying their fair share, and for you to suggest that that's not happening right now -- I think we all have to act in a responsible manner. We only have to take a look at New Zealand or Confederation Life to see what can happen if you don't act in a financially responsible manner.

Mr Parent: I guess, Ms Witmer, what we're referring to primarily, and what Brother Lewenza alluded to, is that there are a lot of employers that are not paying their premiums, their assessments, currently. There are over 20,000 employers in this province today that are legislated to pay premiums and are not. I dare say that if you had them pay, that would obviously help the unfunded liability.

It was also the employers that went to the government before this government that asked for a reduction of benefits -- or assessments, I should say -- and it was maybe because of that allowance at that time on the reduction of those assessments that has led to the unfunded liability.

I mean, let's be candid. The unfunded liability phantom and the scare tactics that have been played out there, mostly by the employers in this province -- I'm not saying that the unfunded liability is real or unreal, but the facts are that the unfunded liability only comes into play if the whole system falls flat, the whole province is not working, if everyone had to be paid their current benefits and pensions. That's when the unfunded liability.

I dare say that I don't think you and I in our lifetime, and I don't think in our children's lifetime, will see the whole question of this province going flat on its butt. I think the closest that we got is over the last several years, and I think that right now we are on the rebound and that we will see this province grow and continue to grow in the future.

The Vice-Chair: Thank you.

Mrs Witmer: Well, our debt is growing too.

Mr Ferguson: Thank you for appearing today. Just on that question, it's been put in very practical terms of somebody paying a $100,000 mortgage with $37,000 in the bank. If people have difficulty relating to billions of dollars, I think that's a pretty fair and pretty safe analogy to use, that most people wouldn't suggest they're in difficulty.

But my question is this. You know what the government bill contains, obviously. You've made a number of very positive recommendations. I want to tell you today that what is before you is not etched in granite and that's why we're touring the province. We're listening to a number of concerns.

What's not often being said is what the opposition parties are telling the government. In a rather originally titled report called Back to the Future, the Liberals have said two things. They've said, number one, implement the Friedland formula and, number two, they've also suggested that we ought to freeze employers' premiums immediately.

The Conservative Party, on the other hand, has taken a different stand on the whole question of compensation. They've suggested that we ought to take injured workers' benefits from 90% down to 80% of net earnings immediately. The Conservatives have also suggested that we ought to look at imposing a 72-hour cooling-off period or waiting period from the time an accident occurs to the time somebody would be entitled to benefits. The third suggestion they've put forth is that we ought to be looking at some sort of employer-worker cofunded agreement to cofund the Workers' Compensation Board, much the same as other programs that operate.

I'm wondering if you would have any comments on those proposals.

1540

Mrs Witmer: Thank you for getting that on the table.

Mr Mahoney: There's a movie coming out.

Mr Parent: When you look at the whole question of the Friedland formula and what you talked about, you're absolutely right; I mean the mortgage thing. When you talk about -- and I lost my train of thought on one of the points that you raised, Mr Ferguson.

Interjection.

Mr Parent: Freezing the employers' premiums. As I said to Ms Witmer on the whole question of the employers in this province who are not paying, how do we get them to start paying? What about the employers who are not scheduled to pay? I'm talking now of the banks, I'm talking about the credit unions, I'm talking about the insurance companies, those who are not currently under the current legislation to pay a premium. If we had those employers also paying into the system, I dare say that you might have an idea of some of the present assessments being lowered, believe it or not, as a result of the employers in this province paying their fair share. But there's a great majority of employers in this province who are not paying their fair share or are not paying any of their share. I think it's the obligation and the responsibility of the government and the workers' compensation to make legislation that's going to force employers to pay their fair share in this particular area.

Mr Mahoney: I'm delighted that Mr Ferguson wants to quote from my report, and he's absolutely right. The difference is that we recommend the implementation of Friedland, but we didn't spend the money. That's the difference.

The other thing is, we clearly agree with you on the 20,000 employers. Whether or not it's 20,000, 22,000, 18,000, I don't know, but we have said in our report that we think that's an area that the government should aggressively go after because that has been identified as a lack of revenue for the WCB. So I support you on that.

But I have counted up with this presentation, and I really appreciate you taking the time to submit it in such detail, a minimum of 17 amendments that you require. If there are 17 amendments to this bill, sir, I will be absolutely shocked. Experience would indicate that the bill is going to go through in its present form with maybe some tinkering, but there will not be 17 amendments to this legislation.

My question to you is, if your amendments are not put into the bill, would you agree with me that the bill should be withdrawn and rewritten?

Mr Parent: Absolutely not, because if you look on the other side of the yellow page, there are things that we do agree with in this particular bill and we are pointing out some concerns that we have on the other side of the ledger that we want this committee to review and, hopefully, rather than tinkering, to implement.

Mr Hope: Tell them what you said about Bill 162.

The Vice-Chair: Thank you, Mr Hope. On behalf of this committee, I'd like to thank the Canadian Auto Workers, Local 444, for their presentation this afternoon.

TOM DOOL
SANDRA SAFRAN

The Vice-Chair: I call the London and District Construction Association. Good afternoon and welcome.

Mr Tom Dool: Mr Chairman, members of the committee, allow me to offer our appreciation for giving us this chance to talk to you today. My name is Tom Dool. I'm an employer representative of the construction industry. With me are Ms Sandra Safran of M. M. Dillon Co Ltd, Dave Johnson of Cuddy Food Products, and Bob Dobbs of the Ford Motor Co of Canada.

Although this group supports the positions put forward previously by the ECWC, the Employers' Council on Workers' Compensation, we'd like to spend our time today narrowing on one issue only, that of experience rating programs, CAD-7 and NEER. I will speak to the construction industry program CAD-7 and Ms Safran will speak to the NEER program.

Bill 165 proposes to amend section 103 of the act by adding very, very subjective criteria to the formula which determines whether an employer will receive a surcharge or rebate on his premiums. Currently the construction industry operates under the CAD-7 program, which has been in existence for 10 years and in our minds has been the most successful WCB program to date. CAD-7 is performance-based. The fewer lost-time injuries and the less the accident severity, the greater the opportunity for rebate of premium. Since the introduction of CAD-7, the performance of the construction industry in the health and safety area has been absolutely remarkable.

The frequency of injury, lost-time injuries per 100 workers -- I would note to the gentleman over here, Mr Winninger, who referred to a decrease in workforce, that we're talking frequencies here, we're not talking total numbers. That was a pretty poor shot as far as I'm concerned. That frequency has decreased from 1987 to 1993 from 7.1 per 100 workers to less than 3 per 100 workers, a decrease of 62%. Indeed, the program was so successful that just a few short years ago there was an off balance of rebate over surcharge of almost $40 million. To correct this -- and, I might add, without employer opposition -- weighting within the formula was changed and the current off balance is being reduced and will approach a neutral position.

The formula is based on two areas: LTI frequency and, secondly, accident costs, which can be related to severity. Statistics show that the LTI frequency has dropped remarkably. And in the aspect of accident cost, employers are given the incentive of rebates by getting employees back to work through modified work plans, work-sharing etc, thus reducing their accident cost. These rebates they receive are not just cash in the bank either. That money goes back into the safety programs and practices that are used to create those better safety conditions.

In the face of this successful performance-based program, the writers of Bill 165 wish to alter the existing formula by adding these subjective criteria. Well, if something is working, don't fix it. I'm sure that's something you'll hear time and time again as you go through your hearings.

It's proposed that surcharges and rebates be also based on the consideration of (a) the employer's health and safety practices and programs for the reduction of injuries and disease, (b) the employer's vocational rehabilitation practices and programs, (c) the employer's practices and programs to assist in the return to work of injured employees, and (d) such other matters that the board considers appropriate. I hope my voice underlines "practices and programs" all the way through there, because that's what we're referring to as the subjective criteria. There are some very definite problems and concerns attached to these criteria.

First, they're already covered, with the exception of item (d), under the Workers' Compensation Act and under the Occupational Health and Safety Act. Application under CAD-7 will probably create a double jeopardy scenario.

Second, we've already pointed out that items (a) and (c), health and safety and re-entry programs, are currently addressed by the incentives offered in CAD-7.

Third, I'd point out that the majority -- I mean at least 80%, okay? -- of construction employers employ less than five employees and work on projects of less than six weeks' duration. It's almost impossible for these firms to have rehab programs in place. On the other hand, these employers do everything they can possibly do to re-employ their injured workers.

Fourth, the added criteria are entirely subjective. Who will do the consideration of these criteria, and at what cost? How timely will these considerations be in terms of an employer and an employee? Who in fact is really capable of making these considerations? Currently, a formula is used; any technician can apply the formula. When the criteria become subjective and auditing is required, politics, bias and opinion enter the calculation. These will destroy the integrity of the program.

Fifth, in that the criteria are subjective, the number of appeals will skyrocket out of proportion, and that will further tie up the system.

In summary, the 800-plus employers and the 18,000-plus employees of the construction industry in this area ask you to consider the above arguments and recommend that the CAD-7 program be unchanged by Bill 165.

Mr Chairman, ladies and gentlemen, Ms Safran will address the NEER program.

1550

Ms Sandra Safran: I'd like to speak on behalf of a group of employers in the manufacturing, health care, and technical and human resources consulting services sectors in this geographic area. Among us, we employ approximately 12,000 workers at an annual payroll of about $400 million. Our combined annual WCB assessments are approximately $12 million.

The experience rating program, particularly NEER, is a program that promotes effective health and safety practices through a system of assessments, refunds and surcharges which are based on an employer's annual accident record. The current legislation proposes to withdraw this legislative authority for the program and replace it with one that substitutes subjective assessments of health and safety practices and programs for the performance-based criteria of current experience rating programs.

The current experience rating programs have been found to work well. They receive wide support from business and are the last opportunity remaining for business to reduce costs through positive performance-based initiatives. The goals of these programs are to reduce incidents of injury and to shorten the periods of time off for injured workers. They've enjoyed a high degree of success.

WCB itself has promoted the programs as an excellent method to accomplish its mandate. I'd like to quote from a WCB brochure entitled NEER: An Employer's Guide to New Experimental Experience Rating. Employers believe this statement.

"The new experimental experience rating, NEER, plan plays a major role in the way the board accomplishes its overall mandate. By providing the financial incentive of reduced assessments, NEER encourages employers to invest time and money in making your workplace safer -- therefore reducing injuries."

It goes on to say:

"NEER also helps promote a fairer distribution of the assessment burden. Without experience rating, individual companies with a good safety record and those with a poor record within a particular industry rate group pay the same assessment premium. But under NEER, a company with a good record relative to the industry average gets a refund on its initial assessment; those with a poor record relative to the average pay a surcharge."

We believe this. It is our position that by reorganizing the rate groups and adopting policy which will see all employers in Ontario experience-rated, the board has been striving to meet the objectives. NEER, while not perfect, is working. Accident frequency rates have declined steadily since 1988. Other speakers this afternoon have quoted some of those.

According to the Monthly Monitor put out by the WCB in July 1994, the number of new claims per day has declined 32.3% from 1988 to 1993. Total claims declined by 9,300 employees during the period 1992 to 1993. Even taking into account some differences in the total number of employers, that's more than 9,300 employees who were not sick or injured during that period. Employers and their employees have taken their health and safety responsibilities seriously and have shown significant success.

Bill 165 proposes that the board may establish experience and merit rating programs to encourage employers to reduce injuries. It moves away from the base previously legislated. "In determining whether a refund is available or the amount of a surcharge under a program, the board shall consider:

"(a) the health and safety practices and other programs of an employer to reduce injuries and occupational diseases;

"(b) vocational rehabilitation practices and programs of the employer;

"(c) practices and programs of the employer to assist workers to return to work under section 54; or," and I'd like to stress this last item:

"(d) such other matters as the board considers appropriate."

Ladies and gentlemen, I'd like to just point to the motivational forces that are at work here. Whether these are described in psychological terms or as general response patterns, it's well known that humans respond well to systems that offer clear rewards and disincentives. NEER is such a system. It encourages employers to provide an environment that promotes safety and health. It functions similarly to insurance programs, which employers can also understand and can appreciate. It should be maintained.

NEER and CAD-7 measure the measurable. They look at the bottom line, not the process to achieve it. The processes to achieve a good result might be subtle and could include intangibles such as how an employer or supervisor behaves or the corporate culture that has grown in an organization. They might not be visible to an outside auditor.

The experience rating system will be drastically altered as a result of additional penalties assigned to companies lacking politically correct programs in the area of occupational health and safety and vocational rehabilitation and return-to-work programs. We don't measure Olympic athletes by how hard they try or how well-designed their training programs are. We reward results, not processes. In the business world, an organization with poor results may have health and safety programs that appear to be excellent, but they don't work because of poor internal motivation, poor supervision, lack of appropriate safeguards or lack of follow-up for injured workers. The proposed changes will shift the emphasis of experience rating from objective measures to a subjective program and obscure a fundamentally impartial system with a plan which currently is ill-defined, variable and subject to multiple regional interpretation.

We're concerned that the text of the proposed section 103.1 is an unnecessary and detrimental addition to the act. The text is vague and subject to a wide range of possible policy tangents which might distort the application beyond any original intent.

Subsection 103.1(2) begins with the obligatory word "shall." However, the last word in that clause (2)(c) is "or," coupled with a catch-all wording that gives the board the freedom to consider any or all of the clauses under the subsection. It seems to create the peculiar situation where the board is obligated to do whatever they want in the application of surcharges and rebates. There are no objective criteria.

I'd like to summarize by saying that the experience systems currently in place are entirely results-driven. The nature of the rating formulas themselves direct employers to follow responsible health and safety and return-to-work practices. They make economic sense, they make human sense. The proposed system is not only arbitrary but also caters to the quantity and range of programs and practices instead of the quality.

NEER and CAD programs have had a major impact on the reduction of accident statistics in Ontario, and our message to you today is to remove experience rating from Bill 165 and let the current system continue to achieve results.

Thank you very much for the opportunity to address this committee.

The Vice-Chair: Thank you. Ms Murdock, you have about a minute.

Ms Murdock: It's not enough. I'm presuming you have seen the amendment that has been made, since most of the employer groups have.

Ms Saffran: Yes, we have.

Ms Murdock: I would point out that on the second-last page, "Bill 165 Proposals for NEER," an important word has been left out of that. I think it's key, actually, in terms of legislative drafting and interpretation, because the word "variation" should be there between subsection (1) and subsection (2).

The reason I say that -- since I guess I won't get a chance to ask the question, but I wanted you to understand -- is that the subsection (1) there is the maintenance of the NEER program in terms of accident rate and frequency and the accident cost to the employer in terms of our amendment. Then the variation of the amendment is the exact wording out of the PLMAC agreement, which I think doesn't go to the good employers. The good employers, which are the employers who already implement those kinds of programs and are already working with the board and with the employees, will never probably ever come to that. It's the ones that don't, and I think that's important and I would like your opinion.

Mr Dool: Well, under CAD-7, and I'll refer to CAD-7 alone, Ms Murdock, most of our employers in construction are too small to meet those criteria. Therefore, they can have superb performance results, in other words, accident records that go back five years with nil frequency, and yet under this they could actually be penalized and their rebates would be reduced.

1600

Ms Murdock: But you'd look at the first part rather than the second. You'd look at the first first, and then, and only then, you would --

Mr Dool: Then you look at the second. Right.

Ms Murdock: Only if the first is not --

The Vice-Chair: Thank you, Ms Murdock.

Mr Offer: I'd like to thank you for your presentation. I think the interaction between yourself and Ms Murdock was quite instructive. It is clear that the amendment the government has produced is nothing less than a rewording of the section that now appears. They tried to do something. The effect is absolutely the same.

The question that we have is, based on the section that's in the act or the proposed amendment, which has the same effect as the section in the act, is there now going to be an extra cost to employers, either under CAD-7 or whatever, who in terms of their assessment now have good work records where the results are that there are no injuries?

Mr Dool: In response again to CAD-7, that is a possibility, and there's no definition, there's no way we can look upon it as a clear-cut separation, if you will, under this amendment that this will come into place without this coming into place. That's not what this says. This says first it'll be your performance, then it will be the rest of it. We're saying no, it should be based on performance only, because the rest of those items are already covered under the act and under the Ontario health and safety act.

Mr Offer: And you haven't spoken about sub (d), which means any other matter that the board considers --

Mr Dool: Sub (d), I think that's a catch-all. Let's face it. That's just a catch-all. The poor guy who's caught in that catch-all, well, there's nothing there he can do.

Mr Offer: If you've been doing a good job but we still want to catch you, we'll use sub (d).

Interjection.

The Vice-Chair: Order.

Mrs Witmer: Thank you very much for an absolutely excellent presentation. I don't think there's anything I would disagree with. I think you've pointed out very well that employers are going to be penalized. We heard this morning from the Novacor group that if there was a flat assessment rate across the board, it was going to cost it $1 million additional in assessment. They indicated that companies such as themselves obviously were going to have to be looking at places other than Ontario for investment. I think you've pointed that out here as well.

The rates are going to be fixed in a very subjective manner. The employer will not know what result might be expected. Do you think this is politically based, the changes in the experience rating and the CAD-7?

Mr Dool: I have no wish to comment on that. To me, this is not a political thing. I'm sorry, Ms Witmer. This is right down and dirty. This is going to affect the employees 15 years down the road. They're not going to have nothing.

Mrs Witmer: Would you explain that?

Mr Dool: This program will be broke, okay? We won't have any jobs to work on. That's what's going to happen. We cannot be competitive with this ongoing thing here over our heads, and the employees should become aware of it. The well has run dry. We cannot compete any further with any more added costs. In the construction industry alone, we're looking at added costs already. The rebates have been decreased. The surcharges have been increased in order to come to a neutral position on the CAD-7 program. We accept that because we accept those neutral positions. On the other hand, we're just buried in this kind of thing.

I'm sorry. I don't wish to comment. I don't think this is a political thing. I don't think it should be a political thing.

Mrs Witmer: It's just that the unions are asking for --

The Vice-Chair: I thank the London and District Construction Association for its presentation this afternoon.

UNITED RUBBER WORKERS, LOCAL 677

The Vice-Chair: I'd like to call forward our next presenter, from the United Rubber Workers, Local 677. Good afternoon and welcome to the committee. Once again a reminder that you'll be allowed up to 20 minutes for your presentation. The committee would appreciate it if you'd keep your remarks somewhat briefer to allow time for questions and comments from each of the caucuses. As soon as you're comfortable, could you please identify yourself for the record and then proceed.

Mr John Cunningham: Good afternoon. My name is John Cunningham. I'm the president of Local 677, URW, Kitchener, also a former WCB rep and also an injured worker. Greetings to the committee and to the Chair.

The current government, in introducing Bill 165 with the promise of a royal commission, has presented timely and responsible legislation to answer some of the problems of the WCB system now. Some of those problems we have been encouraged to think of as huge. At the heart of 2 Bloor Street, previous governments have meddled in the affairs of the board by appointments to the board of directors and by interfering in the daily affairs and the policies of the board. Employees at the board were never shy to explain why morale was terrible.

The public has been led by certain less-than-honest employer lobbyists to believe claims that the board's financial affairs under Bill 165 will see the unfunded liability rise from $11.6 billion in 1994 to $13 billion in 2014 by omitting the fact that the $13 billion represents inflated 2014 dollars and ignoring the funding ratio, projected to rise to 18%. Those who have a stake in the system, the employers and the workers, should be the ones to run the system with the government.

Bill 162, a bill thought to be revenue-neutral, a term which is an oxymoron, brought deeming in, in a period of high unemployment when the disabled already experienced 40% unemployment. This bill then does not address poverty that no obligation to return to work before Bill 162 brought. Some 40,000 workers on small WCB disability pensions thought unlikely to benefit from rehabilitation remain unemployed.

As a previous worker rep for many years and now president of 975 members in the heavy industry of making tires for the Michelin corporation in a factory which has been open since 1962 and unionized since 1962 -- you'll pardon me if I stray a little from the text. I've written this without the help of my computer, which broke down, and I'm also on holidays without benefit of wage today. If I stray a little from the text, it took two cities and two copying machines to get this to you. So I do apologize.

I do believe that Bill 165 will address some of the larger problems within the WCB system in a responsible and progressive manner. It is unfortunate that the business side of the Premier's Labour-Management Advisory Committee couldn't hold its final bargained position that held similar direction as this bill. This could have been the royal commission instead of what it is today. We could be down the road. I hope the attached appendix with suggested amendments will help the legislation's creators to correct the language which could, in my opinion, lessen the effect that they wish to create.

As a workers' rep, I've escorted many people to the front door after almost no accommodation on either pre-injury or suitable work could be found, many of these workers with 20 years' service or more, 45 to 55 years of age, with tears in their eyes, because while cooperating with everyone down to the wire, no job could be found by the company. If you had retired naturally, the fanfare of the employer and fellow workers cranked up to wish you all the best on your walk-around day. The disabled, having signed off for disability pensions, had only me to escort them to the front door. All asked, "What happened?" after back-to-work programs and aggressive treatment programs were unsuccessful. All asked: "What happened? What do you mean I can't work? I've worked all my life for this company, and you're telling me they can't find a job for me?"

So my fear in Bill 165 is in subsections 103(1) and (2), amendment 28. It has no teeth.

I've heard many of the speakers here today talk about, "Well, perhaps we could just let everybody be joint." I work for Michelin. I know what joint is all about. Most of the employers behind me would die to be Michelin, with its attitudes towards the worker. Make no mistake, health and safety and the rating programs are working, because it is mandatory. The health and safety programs are mandatory, and that's where the joint has worked.

The tripartite board will hopefully change, make some sense of or dismantle NEER and CAD-7. Under section 103, experience ratings must be modified to reward good, cooperative behaviour against penalties for uncooperative, poor behaviour.

Talking on NEER and CAD-7, I saw in the past dramatic increases in the number of cases questioned by my employers in small ways that are demeaning to the injured worker. An example: A small box on form 7 asks, "Do you have any reason to doubt this claim?" to the employer. Most were marked in without any reason.

1610

My employer has recently reacted to Bill 165 coming close to law by the presentation to the union of a disability management policy, complete with its own manual, made to look impressive and impressive to hear but with next to no substance. At no time was there any time spent with worker-trained people from the union, operating with some 30-plus years of service within that factory.

There's no amendment for the language in my amendment added here today, simply because I think there would have to be a change of attitude as far as mandatory is concerned. The previous people said the word "shall" is somewhat obligatory. Anyone in labour knows the word "shall" is mandatory. That word is lacking within this legislation.

With ergonomics, the new buzzword, the company will assure the union that it is looking at this or that equipment to be redesigned ergonomically for the good of the worker and for the company. The worker will now be able to do 2,500 tires a shift. In the next breath, they will inform me that the same worker, by a recent time study, will have to produce 3,000 tires a shift in two months' time.

I'm sure they're puzzled when I can't see their ergonomic salvation for my member. Heck, unions with people who have experienced injuries on the job taught companies the worth and the meaning of the word "ergonomics." They, the companies, misheard and bought the program, only later to realize we weren't talking about economics and experience ratings.

The only successful assessment programs will be the gainful employment of injured workers at their pre-accident employer wherever possible or suitable work on another job. Real reward for the employer will only come from prevention and re-employment. Lasting re-employment will come with joint programs only.

I suppose the standards of the program suggested in section 103 would come from the Workplace Health and Safety Agency, and considering some of the fine programs it's developed, this is in the right direction. This section, however, does not mandate the supposed programs, and while large employers may choose to participate with unions in joint programs or committees, some union shops and most non-union shops will not. Those reps will be escorting injured workers permanently to the front door, like I did.

Some would suggest that we can just dump the onsite work of accommodation, rehabilitation and return to work on the joint health and safety committee members or the élite of the certified members because of the bang-up job done there where joint committees were truly left to be joint. Unfortunately, re-employment is the aftermath of an accident, and special skills are needed and must be learned for return-to-work programs to work, which legislators here have recognized. Those committees are usually far too busy already if allowed to operate correctly.

Finally, in closing, all of us and the medical community must ask about the mindset that the term "early return to work" has and can cause in many soft-tissue injuries. Originally, all those injured stayed home until entirely well, or in a static condition anyway. I agree that instead of muscles wasted away, in many cases proactive treatment can benefit many. But as jobs become more repetitive and costs higher, returning a muscle-specific worker to a job aggressively early may be more destructive to atrophied muscle groups around the injured groups. It is my opinion that this produces a hurry-up atmosphere in treatment more in line with experience ratings and disability management far too aggressively applied than the commonsense plan to heal the worker.

Let's help heal the injured worker. Let's re-employ the injured worker with dignity. Let's all go forward to the royal commission and finish the job that is well started within this Bill 165. Thanks for the opportunity to speak to you today, and I hope I can answer any questions you have for me.

Mr Mahoney: Your presentation basically says that CAD-7 and NEER are not working at all, yet we've heard statistics from business groups, one just before you, that their lost-time accidents are down 62%. We heard that before, in the hearings in Toronto, and yet their costs for WCB coverage of course are up. We've heard you claim that the health and safety agency is working very well in promoting health and safety training within the workplace. I might disagree with that but that is another debate or another issue, perhaps. Do you have any statistics that would prove that these incentive programs are indeed not working?

Mr Cunningham: I would give you the opposite in real and plain dealings every day because I'm president of the local and do not deal full-time with WCB. But in a workplace that works 56 hours in a row on three rotating shifts with workers who do not claim stress as a real, compensable injury because they're just too afraid of the system, I know that NEER and CAD-7 are management programs. They don't deal with the issue of injuries. They're just tracking devices, wonderful for you to reward people if you wish, but they're tracking devices. They don't bring any change themselves. The health and safety programs bring the change, not NEER and CAD-7. That's practical experience.

Mr Mahoney: We had a lady here earlier this morning and she was from a labour perspective; I've forgotten specifically which group. She suggested that management should be rewarded if it's successful in reducing accidents and in reducing the impact against injured workers. So what I'm having a little trouble with is that we're going away from a system. It appears, from what we've heard, that the only section in the entire WCB program that clearly statistically demonstrates improvements in lost-time injury is the one that this bill deletes. I understand politics and I understand philosophy and I understand that perhaps labour is tied closely to the NDP and wants to support them, but even you have identified four or five areas of the bill that you don't agree with. If the amendments that you're suggesting do not go forward, would you still support the bill or would you think it should be rewritten?

Mr Cunningham: Here I can give you a small analogy about my employer who one time decided to reward the workers -- this is the office of the employers -- and he would give them a turkey at Christmas. So he gave everyone who hadn't been involved in an accident a turkey, including the fellow who bunted someone down an aisle with a tow motor. I have said in my brief, if you will read it, and I know it's a little rough because I typed it by myself with my injured hands, but I will tell you that I think there has been real progress made in this bill. Are we to stand aside and allow it to become another skeleton in the closet or are we to deal with it now and deal with it by the royal commission fully when the time comes?

The Vice-Chair: Thank you. Ms Cunningham.

Mr Cunningham: A clan member.

Mrs Cunningham: Right. Lots of Johns in our family too. I'm just wondering, I think that your main thrust here is that a lot of the work we have to accomplish is something that you want to see jointly.

Mr Cunningham: I find it only effective -- I will give you an example. We survived survival negotiations in 1991, shortly after Michelin took us over. They were granted $2.5 million by the federal government and $2.5 million by the provincial government. There were more mandatory strings placed on the provincial money. The company seemed to run through the federal money very quickly, but when having to justify how they spent that money, they didn't spend the provincial, and I would say the same is true. I want it jointly because the "mandatory" and the "jointly" meant we had to put our partisan views, which Mr Mahoney suggests that I have -- I'm not a card-carrying member, by the way, Mr Mahoney.

I would suggest to you that when it becomes mandatory, we have to sit and work out our differences bravely across the table. Is it 100% successful? No, it's not, but is it much more successful than a company such as Michelin? They have done good things in safety in our facility and they have worked jointly, but if I was to give them management right without the "joint," I suggest to you that their programs would have little substance to them. They would be good to look at and nice trinkets, but they would have very little relevance to the worker on the floor.

1620

Mrs Cunningham: You've answered my question on "joint," and I think that a lot of the joint programs that are taking place in the workplaces in London, the ones I've witnessed anyway, where I've been invited, don't have this kind of legislation to support what they're doing. They seem to be doing it, because they're using their common sense and some of the legislation that we already have.

You state on page 5, I think, "The only successful assessment program will be the gainful employment of injured workers at their pre-accident employers" -- I think you're talking about working for the person they worked for before the accident -- "wherever possible...at another job." We've actually seen tremendous gains in that. The statistics we've been given have shown us that for sure, absolutely certainly, since 1985 we've had the beginning of some gains and tremendous gains in the last four years. With regard to per cent change in compensable injury frequency since 1965 we've been doing a better job, otherwise, in this area. You're saying, I think, that the real measure here is the success of the person getting back to work.

Mr Cunningham: If the person is back at work, I suggest there is less of a burden to the WCB system. There may be adjustment made between his pre-injury job and his present job by accommodation or other system, but I suggest to you the balance of the money paid to him is much less than if he were unemployed and that a broader view was taken of jobs and how to accommodate on jobs in a progressive manner than it is to simply put the person out the door. I'm sure you'll agree with me.

Mr Hope: Mr Cunningham, I have a couple of questions. Mr Mahoney was getting to where the corporations were saying how the NEER program and the CAD-7 program were working well. I also noticed in the last presentation they told us how much their assessment fee is, about $12 million annually. They calculate, but they never tell us what money they get back. They tell us how much they pay but they never tell us the return.

I was also intrigued by your story about escorting somebody to the door, about which I have to ask a couple of questions, and they're specific. Have you ever experienced any employer abusing the access to a worker's medical file when you deal with this issue? I mean, you make specific reference about escorting individuals to the door and I'm wondering, through that process.

Mr Cunningham: That is more to do with long-term and the fact that they will not accommodate them rather than that they fired somebody. If I've given you that impression, I apologize for that. An accommodation is an extremely rare thing. In a factory of 975 people we have high accident rates, unfortunately. They've been coming down but they're still very high. My reference really was to the fact that when all things are said and done and that person's put out the door without any, "Thank you for your time; thank you for all the years you have worked," it's not really the fact that he was fired but rather that no accommodation could be found.

Mr Hope: With the other issue dealing with finding re-employment within the current workplaces, I'm wondering, in your opinion, dealing with the workplace, if the doctors themselves wouldn't be a part of that gatekeeper process to make sure that it's meeting the evidence. I've also heard presentations where maybe people are returned to work too quickly and it's caused the accident to recur, a lot of recurrences. I'm wondering who should be the gatekeeper in that process.

Mr Cunningham: If we're going to make the medical community the gatekeeper, then we'd better bring them into the process. I don't think we really have yet, nor have we notified them, really. Yes, certainly we've got to and even that I fear because it's a very personal relationship. Yes, they must be in the process, but to say that they must be the final arbiter of the decision within it, no, it should be joint again or tri, whatever the system may be, but yes, they are the people who know best. Then again, saying that, doctors usually have only one hour of occupational training and perhaps we as a government, as a labour movement, as management, can provide some training to that extent and open our doors so that they can see the workplace. If they can see the conditions that are working in and not ignore themselves the conditions we work under and the repetitiveness of some of our jobs perhaps, then we can make real progress.

The Vice-Chair: Thank you, Mr Hope. That was three minutes. If I may depart somewhat from my impartiality, Brother Cunningham, who comes from my local, I want to thank you for giving us your presentation from Local 677, the United Rubber Workers.

Mr Cunningham: Thank you very much. My own member, Will Ferguson, happens to be sitting at the table. It's nice to see him active and vindicated. Thank you.

GREY-BRUCE INJURED WORKERS UNION

Mr Dan Jordan: Thank you for the opportunity to address this standing committee in reference to Bill 165. My name is Dan Jordan. I'm the recording secretary of the Grey-Bruce Injured Workers Union. Beside me is John Gault, the chairman of the Grey-Bruce Injured Workers Union.

Our group is opening its presentation by strenuously objecting to the Friedland formula. In essence, the $200 increase in the pensions is merely a salesman's ploy to sell to a few of those injured workers who are in dire straits. The balance of the package will diminish any of the future increases in the injured workers' pensions. This has been addressed by most everyone in the injured workers' community and I don't feel I should waste any more time on it. Suffice it to say it is a magic show of the lowest degree. Again, it shows that those people who are making the rules and policy have no idea what it is to be an injured worker. Maybe it is time to run our own candidates in this provincial election. Some of those comfortable seats out there may become less comfortable.

The generous indexing of the Friedland formula will save for the business community, as our figures indicate, some $18 billion over the next two decades. The reality: This formula will erode the pensions of the injured workers and place them on social assistance. This intentional downloading of the employers' responsibility to fund the WCB will now belong to the taxpayer. Please, someone explain to all of us the intent of this Friedland formula.

I have presented an appendix A indicating a photostat copy of my benefits in 1978 and in 1994 of the same claim. I wish to point out that on August 25, 1994, one of the speakers indicated their company had paid out in WCB benefits for its employees and showed that from 1985 to 1993, in an eight-year period, there was a 161% increase in the corporation's WCB rates -- an interesting statistic. Not much wonder business communities are hostile to the WCB. We, as injured workers, can only hope their wrath is to the WCB and not to us in general, as my benefits have risen an astounding 3% annually for the past 16 years. We are somewhat curious as to where the 161% increase in WCB rates is actually going. Not to me, anyway.

We would like to see the following amendments and clarifications made concerning Bill 165.

Clause 1.01(a): The word "fair" must be removed and replaced with the word "full." To leave this clause unchanged without clear clarification as to who will decide what is fair compensation for a work injury can lead and has led to unfair decisions. The only fair compensation is full compensation.

Subsection 1(1): The amended segment of this section will change "industrial disease" by replacing it with "occupational disease." This is a housekeeping item, but there is no definition of what an occupational disease is. A clear definition of "occupational disease" is warranted.

Section 8, the amendment here is by adding the following: "No compensation is payable under this part to a worker or his or her dependant if he or she is receiving compensation under the law of another jurisdiction in respect of the accident."

Some clarification at the time of our meeting was required as to the mechanism of who or what body will determine how the injured worker will be assessed and how much, if any, input the injured worker or his representative will have in this matter.

Section 51 of the act is amended by adding the following subsections:

"With the consent of the worker, a physician who receives a request from the worker or the employer shall provide each of them and the board with such medical information as may be prescribed."

This amendment must be omitted in its entirety. It has the potential for abuse. If the injured worker denies consent to release certain information, he or she may be considered as being uncooperative and the benefits will be cut off. This will lead to extreme hardships for the injured worker and family and become another added expense to everyone except the WCB. It will probably be considered to be a job guarantee by some at the WCB.

This clause also borders on the confidentiality rights of the injured worker and his physician. It has the potential to allow employers a free hand to the medical records of the injured employee. We wish to point out the employer presently has the right to see any medical information that is necessary. The board already has the right to provide it. Why is this item even here except to provide some group extra advantages?

1630

Section 53 of the act is amended by adding the following subsection:

"Promptly after contacting the worker, the board shall contact the employer for the purpose of identifying the employer's need for vocational rehabilitation services."

This clause fell short of the mark. Work site assessments and workplace accommodations to meet the injured worker's medical restrictional requirements are established by the injured employee's physician or specialist and the board. Usually, the employer contacts the board and advises modified work has been made available. The board sanctions the request and the injured employee returns to work, in many cases to the same old job.

You have heard time and time again from those presenting their briefs to you what is required: The injured worker must have some input in this arena, at least the right to be heard before the board cuts off any benefits for being uncooperative. In the laws of this country, WCB must be the only one penalizing people before they have the right to be heard.

Subsection 53(3) of the act is repealed and the following substituted:

"The board shall provide the worker and the employer with vocational rehabilitation services if the board considers it appropriate to do so."

To include assistance to employers in the same sentence and the same wording is misleading and inappropriate. Services to employers are often entirely different from those provided to the employee. They may have the same goal to return injured workers to work, but it is fundamentally different. We support employers receiving help in returning injured employees to suitable employment, but this should be in a different section of the act.

Also, the words "if the board considers it appropriate to do so" must be substituted by the following:

"The board shall provide the injured worker with vocational rehabilitation."

Subsection 53(10): "If the board determines, as a result of an assessment or otherwise, that a worker requires a vocational rehabilitation program, the board in consultation with the worker, the employer and, if possible, the worker's physician shall design and provide one."

The employer should only have the right to input if the injured employee is in fact returning to work for the accident employer after vocational rehabilitation. If the employee is not returning to the accident employer, that employer shall have no involvement with the injured worker's rehabilitation. Also, the words "if possible" must be removed and the injured worker's physician must have a say in the worker's requirements for vocational rehabilitation services. Perhaps at this point the health of the injured worker is no longer an issue.

Subsection 53(12): "A vocational rehabilitation program may include assistance in seeking employment for a period of up to six months after the worker is available for employment."

The word "may" must be replaced with the word "shall." In today's work environment, we are seeing very well qualified people without a handicap being turned down for work. How does one cope with the job market with not only a handicap but a WCB stigma attached to it as well? There must not be a time frame attached to assistance from the board for injured workers returning or seeking employment that meets the physical/mental restrictions and requirements as established by the physicians.

Subsection 53(13): This clause will be omitted as the previous change, as we proposed, will cover this area. However, as an afterthought, there could be a section here which will provide financial assistance to injured workers who cannot find suitable employment for creating self-employment. This is an area that should be and must be explored in today's work environment.

Section 54 is being amended by the following: "On its own initiative, the board may determine whether the employer has fulfilled the employer's obligations to the worker under this section."

The change we are proposing is the addition of the words "in consultation with the injured worker or representative and the board."

Section 56, "board of directors": It seems strange that the board of directors will be made up of people normally not in the classification of the injured worker. However, these people have been struck by some bolt of lightning that makes them professionals in what occurs when one becomes a statistic of the WCB system. Recognizing that each of the representatives has a role to play in the working of the WCB, without the input of the largest stakeholders of the WCB, the injured worker, Bill 165 or any other occurrences within the WCB will remain incomplete. There must be representation from the injured worker community at the board level.

Subsection 63(2), an amendment to section 51 we alluded to earlier: "Prescribing medical information" is too broad a statement and should be changed to "prescribing medical restrictions." The employer must not have the right to question or ignore the work restrictions as established by the medical profession. It will suffice for the employer to know that there are work restrictions and what they are. If more information is required, most employers have a health services department and inquiries may be made through that department. It is imperative that the injured worker or representative be kept informed of any information the accident employer requests in regard to the injured employee.

Section 65: A quorum shall exist for the purposes of conducting business of the board, providing there will be seven members in attendance -- three from the employer side, three from the worker side and one from the public interest side.

Subsection 65(2): Some discussion took place with this one. Due to restructuring, the Minister of Labour will set policy for the board. The new board will respect the policies of the minister. This will run for one year. A memorandum of understanding has been established for this to be made possible.

One area of this does cause some concern: the fact that every five years after this section comes into being the board and the minister shall enter into this memorandum of understanding. Does this mean that after every provincial election in this province the people of Ontario will be dealing with a minister who has the power to completely change the scope of the WCB at the whim of the policies of the government that comes to power? In other words, we could have a new WCB every five years without input of the board of directors. At what expense to the stakeholders of Ontario, the injured workers?

Section 72: Prior to any proceeding, the injured worker must be provided a true copy of his or her file. Also, a subsection must be added that if mediation is not successful in resolving the matter, either party may refer the matter to the next level of appeal: hearings branch.

I forgot section 69 here: This again refers to vocational rehabilitation under section 53. This amendment of the act is prejudicial in its present form. Every injured employee must have the right to vocational rehabilitation, period.

Liability of the board: "No proceeding lies against any of the following persons for an act or omission by any person while discharging or purporting to discharge responsibilities of a judicial nature that the person has in connection with the execution of a judicial function under this act." Great work, if you can get it. The words "in good faith" must be added to this clause after the words "judicial nature." We are somewhat in awe that no explanation of any accountability has appeared in this Bill 165. What are the methods of accountability?

Subsection 95(6): This subsection must be removed as the Occupational Disease Standards Panel must have an arm's-length relationship with the Workers' Compensation Board. We feel it should not report to the Minister of Labour. As a primary function of the ODSP is related to health, it stands to reason from our perspective that it must report to the Minister of Health. Information required by the WCB can be accessed from the Minister of Health. We believe that, by being tied to the WCB, budget restraints may influence its effectiveness.

In conclusion, the fact that the Rae government has recognized the need to change the present WCB system is appreciated. However, as has been stated time and time again within this arena of public hearings, no one is appreciative of Bill 165. It falls far short of the goal of protecting injured workers. The government is again reminded that the purpose of the WCB was to provide injured workers and their families with full compensable wages and benefits tied to cost-of-living increases.

We are not politicians or lawyers; we are in most cases laypersons. We have a variety of knowledge collectively at our disposal. We are becoming more educated within the systems that we must deal with. WCB problems are also health, Canada pension plan, social assistance, depressions, labour relations and just being there for each other when we are needed. Perhaps in time we will be in the political arena and in the lawyer and physician realms. Until then, we do what we have to for life.

Thank you for this opportunity. We are now open for any questions from the panel.

Mrs Witmer: Thank you for your presentation, Dan. I did appreciate it very much. I think you've given us some very good insight as to what the injured workers do experience. You've indicated that this bill unfortunately just doesn't respond to the concerns you have.

Do you believe that if injured workers were added to the bipartite board there would be a significant difference, or what else is it that you really feel you need? What is the key?

Mr Jordan: I think the key for the WCB system -- you've hit it right on the nose -- is that without input from the injured workers' point of view, right from the board of directors on down through, no one knows the need of an injured worker more than an injured worker who has been through the system and has seen -- I just feel that no one knows what an injured worker needs. Who else could know more than an injured worker?

1640

Mrs Witmer: So it's absolutely essential that there be the representation.

Mr Jordan: It's absolutely essential. For anything in a bill that's going to improve the Workers' Compensation Board to work, more input from injured workers has to be there.

Mrs Witmer: Were you recommending two?

Mr Jordan: An equal amount of representation is what I'm looking for, whether it be two or three. As long as there's an equal amount of representation, that's fine.

Ms Murdock: Thank you very much. Just to continue on that thought then, in order to maintain it as bipartite, are you suggesting as well, for instance, as your opposite number that an equal number of small business reps should be on for the management side?

Mr Jordan: If small business has one rep or if they have two reps from small business and two from the larger employer community, then there should be two from the injured workers' side or two from the governmental side. I don't expect every small business to have their own representative in there and I don't expect every injured worker to be in there either, but if there are two from the small business community, two from the larger employers in the province, then there should be two from the injured workers.

Ms Murdock: And two from --

Mr Jordan: Two from government.

Ms Murdock: Now, just a minute. Hold it. You're saying that you would want government represented on the board of directors of the Workers' Compensation Board? Is that what I'm hearing you say?

Mr Jordan: No, I guess not. I'm not a politician. I guess what I'm trying to say is that I just think we deserve equal representation, is all.

Mr Mahoney: By the way, if you have an opportunity to read the report that I and my caucus put out entitled Back to the Future, you'll find that mirrors exactly what you're saying. In the hearings that I heard around the province it was very clear to me that injured workers must have a much stronger role right at the board level. But I went a little bit further and suggested including health care professionals specifically trained and oriented towards injured workers and the workplace and all of the health and safety issues, small business, the traditional labour-management makeup, but the expansion of the board to recognize that there are more than two stakeholders in workers' compensation in the whole system, more than just management and labour. Predominantly the injured workers, whom we heard from all over the province, are one I think could bring a wealth of experience and understanding to the system.

I concur with that. I guess it's not really a question; just to tell you that it's in the Liberal document, it's in the report that this be done. I congratulate you for this presentation.

Mr Jordan: I agree. That also fits into section 51, "With the consent of the worker, a physician who receives a request from the worker or the employer...." We know the employers like it. Why wouldn't they? We know the authors of this bill like it. You've heard how the injured workers feel about it. I'd like to hear about how the physicians would feel about handing over medical information without their patients knowing. I don't think you'd find too many who would like it.

Mr Mahoney: No, I agree with you.

The Vice-Chair: Thank you. On behalf of this committee, I'd like to thank the Grey-Bruce Injured Workers' Union for its presentation this afternoon.

Mr Winninger: On a point of order, Mr Chair: Earlier this afternoon when Graham Smith was presenting, he recommended that in establishing merit and rating programs for employers WCB should carefully consider the reduction in the size of the workforce. In my questioning I agreed with him.

I understand that later in the afternoon, when I was out of the room, Mr Tom Dool of the London and District Construction Association suggested that during my questioning I was taking a cheap shot at the efforts perhaps of the construction industry to reduce the frequency of workplace accidents.

Mr Dool advises me that frequency of workplace accidents is always measured in terms of accidents per 100 employees. If this is the case, then there wouldn't be any need for Mr Smith's recommendation. I'd like to indicate for the record that the question wasn't meant as a cheap shot; it was based on Mr Smith's representations to the committee. I certainly commend the construction industry for any reduction in workplace accidents that has occurred, but if we're measuring frequency in absolute numbers, that is, the number of workplace accidents year to year, regardless of the size of the workforce, certainly Mr Smith's recommendations were relevant.

The Vice-Chair: Thank you for that point of information.

Mr Mahoney: Was that an apology?

The Vice-Chair: This committee stands recessed till 7 pm this evening.

The committee recessed from 1646 to 1904.

UNITED STEELWORKERS OF AMERICA, LOCAL 8782

The Vice-Chair: I'd like to call our first presenters for the evening, the United Steelworkers of America, Local 8782. Good evening, and welcome.

Mr Ray Kitchen: Thank you. My name is Ray Kitchen from the United Steelworkers of America, Local 8782. I am a workers' compensation representative with that local. First of all, I would like to thank the committee for allowing me to present my brief on behalf of the United Steelworkers of Local 8782.

We'll start out with the United Steelworkers' position, Local 8782. We support Bill 165, with the amendments as suggested by the Ontario Federation of Labour. We believe that reflects the agreement that was reached by the Premier's Labour-Management Advisory Committee in March of this year. Although this bill does not address all of our concerns and we do call for some amendments, it's certainly a step in the right direction. It deals with the most important outstanding issue, that being the poverty of injured workers.

The other issues of concern to us will be addressed by the much-needed royal commission that will hopefully reshape our workers' compensation system to reflect the needs of today's society and of the future. The fact that over 700,000 workers in this province are denied compensation coverage and 20,000 employers are not required to pay into the system is a major issue to our union.

Another issue that must be addressed by the royal commission is the issue of occupational disease. The Weiler report estimates that as many as 6,000 workers die every year in our province of occupational disease, and only a fraction are compensated.

The royal commission must also look at a universal disability insurance system, or UDI. This could clear up the frustration that the workers face while waiting for the long appeal process to decide whether or not their disability is work-related. A case in point: There was a woman who made a presentation to this committee in Toronto last Thursday who indicated she was injured in 1987 and she did not file a claim until 1990, in fear of losing her job. To date, she is still not in receipt of any workers' compensation benefits, after spending $10,000 on legal fees. This is disgraceful in two ways; first, that a worker has to suffer this long, living in poverty, frustrated while waiting for a system to establish whether or not she is entitled to benefits. Second, it is disgraceful that workers must pay outlandish fees to lawyers and private consultants for representation.

Ms Witmer, you brought out through your questioning that the worker belonged to the United Steelworkers of America. I was personally quite distressed. According to our union's constitution, we must represent our workers in not just workers' compensation issues but all issues. So this prompted me to call our District 6 office. I found out that the worker was being represented by the United Steelworkers of America and she, on her own, chose to seek legal assistance. District 6 has since been in touch with this woman, offering her their services, as recently as three weeks ago. They sent a letter to confirm this, a letter dated August 12 of this year.

This leads me to the truth of the matter: Sometimes injured workers are not happy with the answer a representative must give them because they are bound by the act. The representatives are bound by the act and the policy of the Workers' Compensation Board. From my personal experience, injured workers get frustrated with the long delays during decision-making and often blame their representatives for the long process the Workers' Compensation Board takes. Our union is structured with an accountability process so that if members are dissatisfied with the representation they are receiving, they can file a complaint to a staff representative. These staff representatives are easily accessible to all members of the union, all members of the Steelworkers.

They also have the District 6 office, which is the district office for the United Steelworkers they can come in contact with and which is the author of the letter that was written to this injured worker in question. The District 6 office will ensure the members' fair representation.

1910

The next issue I want to talk about is the issue of unfunded liability. As a responsible stakeholder, we are concerned about the unfunded liability. Today, the workers' compensation condition is somewhat healthier than it was 10 years ago. It now has assets which will cover about 37% of its liabilities. This funding ratio has improved from 32% in 1984 and will continue on the trend if Bill 165 is implemented. It is projected that the funding ratio will rise to 55% by the year 2014, even though the unfunded liability is projected to rise to $13 billion in inflated 2014 dollars. We recognize that the only way to reduce this debt is through accident prevention and re-employment, and I'll repeat myself: accident prevention and re-employment.

Employers continue to refer to the system as being technically bankrupt. But if they are generally concerned about the unfunded liability and the welfare of injured workers, as they have claimed during some of the presentations of these hearings, why doesn't the government eliminate rebates all together? This would result in a saving of $528 million per year. Surcharges should be maintained for poor record performance, which results in additional savings, as well as being an incentive for good health and safety practices.

It is ridiculous that some employers can presently access 90% of their assessment as a rebate. In the Yukon, only 30% of assessments is obtained through a rebate, and 15% of that rebate is decided specifically by the occupational health and safety branch, based on the employer's health and safety practices.

No wonder employers are claiming the system is perfect. They are able to achieve rebates by hiding claims, challenging entitlement, appealing claims and coercing workers into not filing claims. Good employers with honest return-to-work programs and effective health and safety practices have nothing to fear and everything to gain by the amendments to the experience rating system.

Going back a few years ago, when the last bill came into play, which was Bill 162, I sat in front of a committee quite similar to this and gave a brief on Bill 162. We were fundamentally in disagreement with that bill. While Bill 162 set an obligation on employers to re-employ the workers they have injured, it has not worked. It has resulted in workers being deemed to be able to do phantom jobs and reduced their future economic loss awards, resulting in many workers living below the poverty line.

Bill 165, however, will make the re-employment provisions stronger by allowing the board to investigate the employer's re-employment behaviour without waiting for a worker to file a complaint. This, tied in with the new experience rating system, will allow for a co-operative approach to ensure that injured workers get back to work with dignity and job security. This in turn will have a significant impact on the financial situation of the Workers' Compensation Board.

An example of re-employment is that our local has negotiated with our employer a joint re-employment committee. This process has been proven successful time and time again by providing meaningful employment to our members, whether they were injured on the job or off the job. At the same time, it provides a significant cost-saving factor to our employer.

We have some great concerns with the current wording of section 53, which enables an employer to interfere in a worker's vocational rehabilitation program even though it has been deemed uncooperative. We do not believe that the employer who is unwilling to accommodate an injured worker should be allowed to participate in the vocational rehabilitation process in any way.

We are also concerned with the present wording of subsection 51(2) of the Workers' Compensation Act, which obligates the physician to provide medical information about a worker's physical abilities. We feel this information must be non-diagnostic in nature, but list the worker's physical restrictions. We believe the doctor must be satisfied that the information will be used to help the worker's recovery and to ensure their restrictions are accommodated. We do not believe that an employer who has not participated in a cooperative return-to-work program should have any access to the worker's medical information.

Suggested language changes for the two previous sections are contained in the appendix. The appendix is attached to the end of the brief, after page 11.

The United Steelworkers, Local 8782, is in full support of the proposed bipartite structure of the board of directors of the Workers' Compensation Board. This will give the two stakeholder groups equal say in the administration and policy direction of the board. Some employers, during these hearings, have stated that they believe the insurance industry and financial community should have representation on the board of directors. We believe that when their industries are included in the workers' compensation system, then they would become stakeholders. Until then, it serves no purpose to include these businesses and industries.

The chair and the CEO being hired, therefore responsible to the board of directors, will ensure a more responsible system and, more importantly, avoid political interference by the government of the day. While some employers cry loudly that bipartism doesn't work -- as you have agreed during these hearings, Mr Mahoney -- the history of the Workplace Health and Safety Agency created by the Liberal government under Bill 208 has proven very, very successful. I believe it is a question of power and the fact that the employer doesn't like to share the power. It brings to mind a quote from Clarence Darrow: "The employer puts his money into a business and a worker his life. One has as much right as the other to regulate that business."

The fact is, the agency has come to consensus over 300 decisions and only had to force one to a vote on one occasion, where some of the business representatives voted with worker representatives, and that was on certification training. Our local is in full support of the $200-a-month increase to the pension of unemployed injured workers who were injured prior to Bill 162.

Those workers who were over the age of 65 when Bill 162 was passed are excluded from receiving this increase. In the name of justice, we believe that this small group of injured workers, who are now over the age of 70, many living in poverty, must be included to receive this $200-a-month increase, and we encourage the government to make these amendments.

It is important that the government recognize the need for this group of older injured workers, along with survivors, dependants, those receiving 100% disability pension and 100% future economic loss, or FEL, awards, be indexed at 100% inflation.

Although we not endorse the Friedland formula, we respect that this was part of the original agreement that was reached by the PLMAC. However, the true Friedland formula designed for pension plans -- of course, pension plans begin a lot later in life -- has no cap. We encourage the government to remove that 4% cap. We hope the whole issue of indexing will be addressed by the royal commission. Again, we believe there are only two methods to control costs: prevention and re-employment.

Attached is an appendix which contains suggested language changes to the bill. Our local encourages the government to consider these changes, which we believe truly reflect the PLMAC agreement, and pass Bill 165 into law.

I'd like to thank the committee for giving me the opportunity to present the views of our local union. Thank you very much.

1920

The Vice-Chair: Thank you. We have just over a minute each for questions.

Mr Hope: I notice in your brief -- in some collective agreements, you have negotiated joint committees. So my question would be, have you had any experience where the employer has interfered with the vocational rehabilitation of an individual coming back to work? Have they ever abused a medical file?

Mr Kitchen: We have had experience but the experience is minimal, because we negotiate a joint committee for bringing injured workers back to work. The joint committee is working, where we have equal representation from the union and the company and we negotiate jobs that disabled workers can do with the disablement, with the restrictions and jobs. The workers are successfully returned through that committee to meaningful and gainful employment, in most cases. In some cases there are injuries that we could not accommodate, but then again we made a major attempt to accommodate those injured workers.

Mr Hope: My question would be, why did you negotiate the joint committees? Were there problems that arose prior to --

Mr Kitchen: Most definitely there was a problem prior to negotiating the joint committee. The joint committee is definitely working and there was a major problem prior to that. That's why we had to negotiate joint committees.

Mr Mahoney: Further to that -- the issue of the joint committees -- obviously you seem to have struck upon a successful arrangement with your employer, as I assume you're the negotiator for the local or involved in those negotiations. So you've set up joint committees on re-employment; you have an employer who's cooperative, from what you're saying here. In fact, you even say that it doesn't matter whether the injury occurred on the job or elsewhere. It could have occurred at home or it could have occurred on a sports field or in an automobile or anything.

Your employer is obviously being quite magnanimous in agreeing that, regardless of the fact that the injury didn't occur in the workplace, they're prepared to re-employ and adjust and that type of thing. That's part of the collective bargaining process that you were successful in negotiating with your employer. Is that not substantially different than an insurance policy where you pay a premium for specific accidents that occur on specific sites, ie, the job site, which is what WCB is supposed to be?

Mr Kitchen: A negotiating process is something you negotiate with your employer. I don't really understand the question, to be honest with you. Obviously we didn't negotiate an insurance policy with our employer.

Mr Mahoney: No, no, WCB is the insurance policy. The employer pays a premium; an accident occurs on the job site; it does not cover off-job-site accidents.

Mr Kitchen: Oh, no.

Mr Mahoney: You've gone further and negotiated in your collective bargaining process to really what amounts to universal accident coverage. I commend you for your success in that and I commend your employer for negotiating that with you. My question is, is there not a fundamentally substantial difference between an agreement collectively bargained between you and your employer to provide universal accident protection for all employees and members of your union, and a workers' compensation system which is simply insurance for an accident on the job site for which a premium is paid?

Mr Kitchen: I wouldn't say it's universal protection for the injured workers. The point I was trying to make is that we have a re-employment program. It saves the employer workers' compensation costing. It brings their injured workers back to work with dignity. It's something that we had to negotiate. Obviously, when you negotiate something, you give and you take a bit, right?

Mr Mahoney: Right.

Mr Kitchen: So we had to give something up to bring our injured workers back to work. But our injured workers in our workplace mean a lot to us.

Mrs Witmer: Thank you very much for your presentation. I'm pleased you did take the time to follow up on the woman last week who had indicated she wasn't satisfied with the employer and the union's help. Thank you for the presentation.

The Vice-Chair: On behalf of this committee, I'd like to thank the United Steelworkers of America, Local 8782, for their presentation this evening.

LONDON REGIONAL PSYCHOLOGICAL ASSOCIATION

Dr Tony Iezzi: My name is Tony Iezzi and I am the president of the London Regional Psychological Association. I would like to thank the committee for allowing me to speak tonight on behalf of the London Regional Psychological Association, which represents a group of about 100 clinical practitioners, academicians and students in the London and surrounding area.

The mission statement of our association is to facilitate the growth and development of psychology, to offer continuing education experiences to psychologists and to advocate on behalf of psychology to the public, media and the government.

Psychologists have long played an integral part of the health care system to injured workers. We make significant contributions in providing neuropsychological, psychovocational and psychological assessments of injured workers. These assessments provide statements of current and future occupational and rehabilitative status. Perhaps of greater value to the injured worker, psychologists have expertise in the management of psychosocial elaborations of injuries.

Regardless of the type of injury, there's a subgroup of injured workers that will experience a number of psychosocial elaborations which consist of marked functional and lifestyle impairment, marital and familial discord and high levels of emotional distress usually in the form of depression and anxiety. Psychologists have been particularly instrumental in the management of psychosocial elaborations of injuries in workers suffering from head injury, post-traumatic stress disorder and chronic pain. The conceptual framework for our comments on Bill 165 is based on our extensive experience in the assessment and management of injured workers.

Although we have had an extensive and long-standing involvement in the assessment and management of injured workers, neither the current act nor Bill 165 acknowledges the important role of psychologists. This is disturbing, given the significant changes included in the Regulated Health Professions Act, also known as RHPA. Three fundamental changes in health care service delivery were introduced in the RHPA: (1) to increase public accountability in health care service providers; (2) to recognize the unique expertise and competencies of a number of health professionals; and (3) to increase consumers' freedom to choose from among a number of regulated health professions.

RHPA was designed to create a more equal status among health professions and to reduce the medical monopoly of health care services. Given the spirit of RHPA and the health care needs of injured workers, we feel that the continuous and exclusive reference to physicians and to terms that reflect their activities and interests in Bill 165 and the Workers' Compensation Act is inappropriate.

There are multiple examples of exclusive references to physicians in several of the provisions throughout Bill 165 and the current act. Subsection 9(5) of Bill 165 stipulates that the worker's physician shall design and provide a vocational rehabilitation plan in consultation with the worker and the employer. This provision does not take into account that injured workers may have non-physicians participating in their care or acting as their primary care giver. Moreover, this provision does not acknowledge the particular expertise of psychologists and other rehabilitation specialists in designing and providing vocational rehabilitation plans.

Subsections 8(2) and (3) of Bill 165 state that medical information provided by physicians may be accessed with the consent of the worker by the board and that the board will determine the cost of these reports. Other health care providers, especially psychologists, are often asked to provide information pertaining to a respective injured worker. It is our contention that a consent should apply to all regulated health professionals and that regulated health professionals who provide such reports be similarly compensated.

Consistent with the Ontario Psychological Association's position on Bill 165, the London Regional Psychological Association would like to recommend that subsections 8(2) and 9(5) be amended by replacing the term "physician" with the term "appropriate health care practitioner." In line with this position, we recommend in section 14 that the terms "medical information" and "medical restrictions" be replaced by the terms "health information" and "health restrictions."

In the current act, subsection 50(2) defines "health care" as meaning "medical, surgical, optometrical and dental aid" etc. This provision should be amended to include services by psychologists. Thus, health care should read as "meaning medical, surgical, psychological" etc. Bill 165 and the Workers' Compensation Act also fail to include other amendments that appreciate the role and contribution of psychology and other health professions.

1930

For example, subsection 1(4) of the current act defines "impairment" as "any physical or functional abnormality or loss including disfigurement which results from an injury and any psychological damage arising from the abnormality or loss." We feel that psychologists are trained and qualified to evaluate psychological damage from any abnormality or loss. Unfortunately, several articles under section 42 of the current act stipulate that only medical practitioners conduct assessments of impairment, regardless of whether the consequences are physical, psychological or both.

Admittedly the term "medical practitioner" is not defined. However, the intent of the legislation has been to restrict assessment of impairment to physicians. Limiting the assessment of impairment to physicians is incompatible with the current Ontario motorist protection plan. Under this law, psychologists can assess impairment to an individual who has incurred an injury in a motor vehicle accident. Therefore, we recommend that Bill 165 further amend the current act under section 42 to include the assessment of impairment as falling within the scope and practice of psychology. In addition, all articles under section 42 related to medical practitioners should be changed to health practitioner.

There are other provisions in Bill 165 that concern us. The following sections provide examples of amendments that although they appear very positive in presentation, these amendments also raise more questions. We certainly approve of amendments in section 9 aimed at enhancing vocational rehabilitation services and early return to work. We have already made the point that psychologists should be an integral part of vocational rehabilitation plans. However, what is also of concern to us is how the board will be able to implement and enforce reasonable time limits and vocational rehabilitation plans. Subsection 12(1) and subsection 12(2) state that "the board of directors shall act in a financially responsible and accountable manner," and "act in good faith with a view to the best interests of the board." We feel that these amendments are important, but we are left with how will the board ensure that these provisions will be met.

Subsection 15(3.1) states that the board shall follow developments and understand the relation between work, injury, occupational disease and workers' compensation. We applaud this development within Bill 165. Unfortunately, it is not clear how this amendment will be reflected in actual practice. Will the board set up a committee or a panel to review recent clinical research development? Who will be on the committee or panel: medical practitioners; other health professionals; consumer groups etc? If a committee is not established then who on the board will be responsible for monitoring clinical and research development?

Finally, section 20, which covers the mediation process, we feel represents a major advancement from the Workers' Compensation Act. Given our experiences with the mediation process under the Ontario motorist protection plan, we have some concerns. Who will be the mediator? Will there be potential conflict of interest for the mediator? In other words, will the mediator be serving the board or the injured worker? What are the powers of the mediator? Is there potential for misuse of the mediation process by the board or the injured worker? Thank you.

Mr Mahoney: One of the differences, by the way, between the OMPP, I guess -- or an obvious problem is that the premiums are paid by the individual so you're not relying on somebody who pays a premium and somebody else who gets the benefit. I get in an accident, my insurance plan protects me. I paid the premiums. If my premiums go up, I pay them, so I'm sort of singularly responsible and there's a pretty clear difference in making the comparison between the OMPP and the workers' compensation system. The OMPP is clearly laid out with specific awards and is not income replacement in the same sense. There is a provision for that but I think they're kind of apples and oranges and --

Dr Iezzi: One reason I did bring up the OMPP is to basically indicate that OMPP at least recognizes the role of psychology and their expertise, and we see our role in assessment and the management of injured workers as possibly saving costs.

Mr Mahoney: I appreciate that. I've met with Dr Berman, actually, and we've talked at some length about this. She was upset with me at first because my report didn't include psychologists, but it didn't include a lot of other people. I think it's important that all health care professionals do get involved in finding a way to fix this, including the psychologists.

The great fear -- and I'd like your answer on this -- that the people who pay the costs of WCB directly have is that involving psychologists then is the first step towards broad-based stress being a compensable injury. Probably a lot of it is lack of understanding of the technologies. You know how to fix a broken arm and things like that, but the psychological aspects are very frightening to employers and to a number of other groups around the province.

If the psychologists are going to play a major role in this, presumably stress would then become a part of that role. How do we ensure we can define where the stress occurred, that it's not home related, it's not outside of job related entirely? Some stress claims are already covered if they relate specifically to an accident; there have been awards on that. It's such a grey area that many of us who would consider ourselves laypeople in comparison to you and your colleagues -- it's a very unclear, frightening scenario.

Dr Iezzi: I treat about 30 to 35 pain patients a week, whether they be motor vehicle accidents or injury related, and clearly that's always an issue; in other words, to treat the individual and to treat the psychosocial consequences of that injury and not some other problem, particularly problems that were present even before the injury. Our job is always essentially first and foremost to return that individual to work. Essentially, anything that prevents an individual from returning to work is something that we address and try to remedy.

It's a hard question to answer. I know I could myself -- it essentially comes down to responsibility. Are there other individuals who might abuse the system, either psychologists or other health professionals? There is that possibility. That's why I keep going back to appropriate health care practitioner. It should be someone who's recognized as having an expertise in that particular area. I wouldn't want to recommend that any psychologist who belongs to the Ontario Psychological Association could be considered as someone you could send an injured worker to.

Mr Mahoney: Oh, so it would have to be a specialist who has worked specifically --

Dr Iezzi: Someone who would be recognized, yes.

Mr Mahoney: -- in that area, because there are many medical practitioners who are very leery to accept the responsibility of return to work and who simply say: "Our job is" -- I don't mean to belittle it, but -- "we diagnose it. Take two aspirins; call me in the morning. Beyond that, we don't want to get involved." I understand that and there's reluctance on the part of the family doctor to get involved in a dispute between his patient, the injured worker and some huge organization like WCB. It's interesting, I hadn't heard the specialty side of the psychologist argument before.

Mrs Witmer: Thank you very much for your presentation. I think you're probably about the third presenter who has asked us to give consideration to including health care providers as part of the team that provides assistance to the injured workers. There was some concern about the fact that at the present time the medical doctor seems to be the gatekeeper and has access only.

You've indicated here that there are some questions, however. The bill is making some suggestions as to what's going to happen, but you've raised some questions on the last page. The question you've raised at the top of the page is, how is the board going to be able to implement and enforce reasonable time limits in vocational rehabilitation plans? What's your concern and how do you think it can be dealt with in order that it would be timely?

Dr Iezzi: I think, for example, as a psychologist, an individual would have to be ready to participate in a vocational plan, and a vocational plan that's administered in an untimely fashion ensures failure. You have to take that into consideration.

The other thing too that I would be really worried about is this sort of -- a vocational plan is being proposed and it might be six months or eight months before it finally goes into effect and then when it finally goes into effect you know that individual's physical or emotional status may have changed. So it should be something that would be fairly quick in implementing. For some reason, I have the worry that the WCB is not known for exactly being quick and efficient.

1940

Mrs Witmer: I guess that's it, probably. We're all aware of the track record and I guess our concern is that it might not happen in a timely fashion.

Dr Iezzi: And who's going to make sure that this will happen?

Mrs Witmer: Exactly, that's right.

The other thing is that you talk about the need for the board of directors to act in a financially responsible and accountable manner. You asked the question, how will the board ensure that these provisions will be met? The minister seems to think that's going to be taken care of, but I hear you say there's still a lot of concern.

Dr Iezzi: Yes, I find it hard to believe. That's not to say I think there won't be any efforts towards this, but there's nothing in Bill 165, other than taking their word on it, that ensures that this is in fact what will happen.

Mrs Witmer: How do you think that could be provided for?

Dr Iezzi: I have some sense that perhaps an external committee or an external body that is --

Mrs Witmer: Outside the board of directors?

Dr Iezzi: -- outside, that is impartial, that consists of a number of groups, could be involved in assessing performance and essentially whether they're meeting these standards.

Mr Klopp: Thank you for your comments. I think you bring out, from your field, some very good points.

Subsections 12(1) and 12(2): I think it's been quite clear since I've been around here for four years and been on a number of committees about workmen's comp and having people who have been in the system on both sides -- employers, employees -- that it hasn't been working very well. I guess you understand that this is in the act now; they're going to have to do it.

Wouldn't that be as the board of directors? But when I've heard the stories -- we had committees here. Obviously the board of directors, I guess, were just going to meetings and having a good time, because I heard things at a committee hearing, that they have computers that they got but they didn't bother training anybody. In my business as a farmer I know that you can sometimes make decisions which in hindsight you shouldn't have done, but it doesn't take a board of directors -- they should have known about that a long time before it got to a committee of government.

I guess this is how we're assuming that this will happen. It's also a bipartite board of directors, of employers and employees. I certainly hope the employers and the employees put people on there who really do go to work and ask the tough questions to their bureaucracy. In fact, it's in the act, as you pointed out: They have to do that. It's not up to you and me to decide; we just assume that they're going to do this, that they are going to ask the question, "Are our budgets on time?" When we build a building, we're going to assume that they'd look at it really tough, or even buying computers. I think that's how it's going to happen, and it's right in the act, as you pointed out.

Dr Iezzi: It's in the act, but I would have liked to have seen some statements that were stronger and directed in terms of -- I don't want to use the word "policing," but, you know, how this would be monitored.

Mr Klopp: We're open to suggestions. Do you have some better wording, short of, "I'm going to take you" --

Dr Iezzi: No, I wouldn't --

Mr Klopp: How do you make it stronger? You have to have a certain trust, but hopefully, when you have two groups of people --

Dr Iezzi: I was just asked earlier. You could essentially assign a committee or another body whose job is to basically --

Mr Klopp: -- police the police.

Dr Iezzi: No, but that's invested in turning out a good product, a product that works and is efficient and meets the needs of injured workers and society eventually.

The Vice-Chair: On behalf of this committee, I'd like to thank the London Regional Psychological Association for its presentation this evening.

The Chair would like to recognize a former member of the Ontario Legislature for Windsor-Sandwich and former Minister of Labour, Bill Wrye. Welcome to our proceedings.

MICHEL LACERTE

Dr Michel Lacerte: It is my pleasure to make a presentation to this committee, given my perspective as a rehabilitationist and rehabilitation advocate. My name is Michel Lacerte and I'm accompanied by my research assistant, Doug Folsetter.

I am a physician specialist in the field of physical medicine and rehabilitation. I'm also a certified rehabilitation counsellor and hold a master's degree in rehabilitation medicine. My present position is assistant professor, University of Western Ontario department of physical medicine and rehabilitation; associate director, UWO Faculty of Medicine continuing education on disability issues; and assistant director of the regional spinal cord injury rehabilitation program.

A good part of my time is spent in the clinic, struggling with injured workers for ways to improve their condition and hopefully returning them back to safe and meaningful work. It is from this latter experience that I owe it to my patients to comment on the sections of Bill 165 addressing rehabilitation services and programs to facilitate their return to work with dignity.

I intend to comment on the sections that deal with medical and vocational rehabilitation.

As a starting point, I would like to share with you my definition of rehabilitation: Rehabilitation is the optimization of ability and autonomy.

The purpose clause: Clause (c) states that one of the purposes of the act is "to provide for rehabilitation services and programs to facilitate the workers' return to work." When I chose Ontario as a residence, I had to familiarize myself with the terminology adopted by the act and the WCB. I must admit that definitions such as that for "disability" at first confused and disturbed me. The act defined "disability" in legalistic terms which did not correspond with the World Health Organization definition endorsed by the Ontario Medical Association and taught in most medical schools. With a clear definition of the term "disability" in section 1, and with time, I have adjusted.

More recently, I encountered truly bizarre new language and terminology which had absolutely no meaning in either the medical or vocational rehabilitation fields. The only persons who pretended to possess the key to the puzzle were a few bureaucrats with absolutely no knowledge or experience in rehabilitation or return-to-work. I am referring to the expensive and defunct rapid re-employment program initiative of the office of the employer adviser and the board's cooperative return to work program.

I hope this anecdote will make you understand my fears when expressions such as "rehabilitation services," "programs" or "return to work" are being introduced in a purpose clause without having been first clearly defined. In this case, "vocational rehabilitation" could be interpreted to mean employability, "return to work" to mean employment and so on. While it would respond to some of the needs recognized in the Premier's Council report on People and Skills in the New Global Economy, such lack of clear definitions has the potential to change drastically the role of the board, not to mention the cost to the system.

My first recommendation is therefore that definitions for "rehabilitation," "return to work" and so on be included in section 1 of the act. I do not think, based on my recent experiences, that we can afford the board, WCAT and other agencies the liberty to give new meanings to the purpose clause which were not intended by the legislators.

Sections 51 and 63, which address reports re return to work, state, "With the consent of the worker, a physician who receives a request from the worker or the employer shall provide each of them and the board with such medical information as may be prescribed."

In the current system, physicians are required by the rules of the College of Physicians and Surgeons of Ontario to have the consent of the worker in order to communicate with the employer. I am a strong supporter of obtaining workers' consent in all cases when divulging diagnostic information to a third party. My experience has taught me that in most situations consent is readily obtained from the worker but significant delays are frequent. These delays associated with securing the consent and completing the forms are the result of multiple factors including insufficient information, inability to contact the patient or patients holding on to the form until their next scheduled visit rather than dropping it at the office.

1950

Time is the enemy to successful rehab and work is often the best rehabilitation intervention. For these reasons, I believe it is in the interests of facilitating timely return to work that information regarding medical restrictions and fitness to work should be demedicalized and be referred to as work status information. Perhaps under clause 63(2)(h.1) a form could be developed by workers, employers and physicians on what constitutes work status information. Ability to provide work status information in a timely fashion is beneficial to all parties. Again, time is the enemy.

I now will address sections 53, 65(3.1) and (3.2), 69(2) and 103. It's kind of a combination of all of those which deal with employer participation in vocational rehabilitation programs. The numerous amendments to section 53 and related amendments require the employer to participate in the vocational rehabilitation process and give to the WCB the power to determine and impose vocational rehabilitation services. Whereas I am in support, in principle, of the various amendments to section 53, especially involving employers in the process, I do have serious reservations in regard to the board's present ability to provide these services with respect to the proposed amendments to section 65.

The rehabilitation counselling dilemma: Canada is lagging far behind other countries in regard to training of qualified rehabilitation counsellors. There are no Canadian rehabilitation counselling training programs, whereas in the United States, for example, there are approximately 88 programs leading to a master's degree or a PhD in rehabilitation counselling. Until three years ago there was no Canadian certification process for rehabilitation counsellors, and to this day this highly demanding profession remains totally unregulated. This means that the board must rely on individuals without the necessary and essential credentials. This has been a long-standing problem which must be immediately addressed. Ontarians deserve quality vocational rehabilitation services from all government agencies and private service providers. In view of this situation, I cannot see how the board will be capable of providing quality and timely services respecting the proposed provision contained in section 65.

The bill adds subsection 103(4.1) to allow the board to penalize employers for failing to cooperate with vocational rehabilitation services or rehabilitation programs provided by the board under section 53. I do believe, for the same reasons just mentioned, that if the board were to start penalizing the employer or worker for not participating in poorly designed programs, it would lead to a greater board allocation to fight penalties instead of facilitating timely return to work. What is needed are more qualified vocational counsellors who are encouraged to go with the worker to the work site to find realistic solutions.

Challenges linked to collective agreements: The bill makes no mention of how restrictive collective agreement clauses should be dealt with. Let's recall recommendation 52 of the June 1990 Ontario Advisory Council for Disabled Persons report entitled Workable: Fulfilling the Potential of People with Disabilities, which states, "That employers and representatives of organized labour ensure that clauses in collective agreements that discriminate against persons with disabilities be amended or eliminated." This is a recommendation I fully endorse.

In this regard, the Ontario labour organizations have made significant strides in improving treatment reserved for injured workers. However, there's still much work to do by labour organizations to change the attitudes of their members towards fellow workers.

"No matter how well-trained, sensitive, well-meaning or objective they may be, supervisory and managerial personnel, line workers are not immune to holding biases, beliefs, or prejudices about persons who are disabled. These feelings and thoughts, deeply and often subconsciously rooted, are carried into daily interactions with disabled employees and can have a profound effect on their social and vocational integration into the business community."

Transitional -- the word "transitional" is very important -- modified work programs should not be seen as preferential treatment or a threat to seniority; they should be embraced as a necessary step to recovery. A supportive work environment must be created by labour and management in collective agreements.

Section 65, new developments in health sciences: This section will require the WCB to ensure that developments in health sciences and related disciplines are reflected in benefits, services, programs and policies in a way that is consistent with the purposes of this act.

I am concerned that no reference has been made with respect to the Institute for Work and Health and the Occupational Disease Standards Panel in providing, in a timely fashion, the necessary information to the WCB to review the present medical strategy and future developments in health sciences. WCB must be able to provide direction to these agencies in order to formulate policies with respect to new developments in health sciences.

It is not the role of WCB to experiment with unproven developments in health sciences or related disciplines on the backs of injured workers and at the cost to employers. Only evidence-based treatment programs with proven efficiency and effectiveness should be approved.

Strict guidelines and monitoring systems will ensure that injured workers receive the best possible treatment. Similar guidelines should exist for vocational rehabilitation interventions. Providers of medical and vocational rehabilitation interventions should be closely monitored to ensure high-quality and appropriate service delivery. Compliance with the rehabilitation program by all parties must also be regularly monitored to ensure successful outcome.

Mediation Process: Amendments to section 72 will set out a mediation process to expedite return to work or vocational rehab. I have two recommendations to make to improve the system. The first one deals with rehabilitation counsellors as mediators. I would like to commend the legislators for introducing mediation services. Actually, mediation is probably one of the best forms of early intervention. I believe that in many cases it will facilitate rehabilitation and return to work. I am certain that qualified rehabilitation counsellors or modified-work specialists could also adequately perform this mediation role in the future. Unfortunately, as mentioned earlier, we desperately need more such qualified individuals at the WCB; as a matter of fact, in the whole system.

Roster of medical referees: In many instances, medical information is lacking in order to make adjudication decisions. I do not see how mediation will expedite return to work or rehabilitation interventions in the absence of this essential information. Work status information, when available, may be the source of dispute. The family physician's traditional role is as a patient's advocate. Family physicians do not wish to jeopardize the physician-patient relationship by making decisions which could affect the patient's benefit levels.

Given this situation, I propose that a roster of highly qualified medical referees -- and "medical referee" is defined in section 1 -- external to the WCB with liability protection under subsections 76(3) and 76(4) be developed. These medical referees could be selected by the worker and employer or decided upon by the WCB if no consensus is reached. The role of the medical referee would be to clarify, in a timely fashion, medical fitness to participate in a medical and/or vocational rehabilitation program or return to work. Strict guidelines and a monitoring system would have to be developed to ensure the highest level of quality and fairness.

In summary:

(1) Terms used in the purpose clause need clear definitions imbedded in section 1 of the act in order to reflect the meaning intended by the legislators.

(2) Demedicalize work status information to facilitate the worker's return to work.

(3) Effectiveness and efficiency of rehabilitation counselling services are jeopardized by the absence of adequate rehabilitation counselling training programs in Ontario.

(4) Encourage qualified rehabilitation counsellors to design, with workers and employers, realistic work-site-based solutions.

(5) To create a supportive environment, employers and labour must work together to eliminate or amend collective agreement clauses which discriminate against injured workers.

2000

(6) Nobody can provide better return-to-work solutions than the worker cooperating with the employer and the local union at the work site.

(7) WCB needs information from the Occupational Disease Standards Panel and the Institute for Work and Health and other agencies to develop policies regarding new developments in health sciences and related disciplines, as directed in section 65.

(8) Legislation is required to improve the controls by which medical and vocational rehabilitation services are selected and utilized.

(9) Return to work can be facilitated by the creation of a roster of medical referees external to the Workers' Compensation Board.

(10) Finally, If legislation does not encourage individual autonomy and independence, then it is not supporting rehab.

Thank you for your consideration.

Mrs Witmer: Thank you very much for a most refreshing and very professional presentation. I see coming through your presentation the need for the WCB to give very serious consideration to ensuring that the appropriately qualified individuals are in place at all stages to deal with the injured worker.

Dr Lacerte: That's correct. If you don't have the qualified people, then you'd better have a heck of a monitoring system and very clear policies.

Mrs Witmer: So no matter what this bill does, if we don't have the people with the expertise and the experience, it's not going to achieve any great gains?

Dr Lacerte: It's not as likely to achieve the same outcome. The vocational rehabilitation outcome at the board right now is not the greatest. Part of it is the fact that the people doing it are just not trained in doing rehabilitation counselling.

Ms Murdock: Hi. Good to see you again. I wanted to thank you, particularly too because speaking in your second language and making sure that we all understand is very important.

Number 8, for me in northern Ontario especially, "...to improve the controls by which medical and vocational rehabilitation services are selected and utilized" -- we hardly have any physiatrists in northern Ontario at all. So when you suggest in 8, and having an independent roster in 9, where do we get them? How are we going to do that in terms of monitoring, selection, providing that to the worker and to the employer?

Dr Lacerte: I believe that even though I like very much physiatrists, there are other physicians --

Ms Murdock: And rehab counsellors.

Dr Lacerte: No, there are also physicians who might benefit from education that relates to return-to-work matters. As a matter of fact, if you look in Quebec, there was a bill, Bill 35, I believe -- it was passed about two years ago -- that made sure deans of faculties of medicine provide some space in the curriculum for teaching medical students about work-related matters and work injury and so on, and that's a big lack. We're always fighting to have more time in the curriculum when we're on rehabilitation, but we're very few.

Ms Murdock: Yes.

Mr Mahoney: I want to particularly thank you for this, because without denigrating previous presenters, out of all the presentations I've seen here, this one provides more opportunities for solutions and I think you've really struck on some fundamental ideas.

I just have one concern. Number 2 says "demedicalize work status information," great idea, and 4 says encourage qualified rehab counsellors etc, 8 says legislation for improving controls, and 9 sets up a roster of medical referees, all excellent ideas. Number 6, however, says, "Nobody can provide better return-to-work solutions than the worker cooperating with both the employer and the local union at the work site." Why would you not include in 6 the medical referee or the rehab counsellors to work with the worker, the employer and the union at the work site and get them involved right on the site?

Dr Lacerte: If you read my book coming out in about two months --

Mr Mahoney: Just a minute. I'm into movies. Does it come with a movie?

Mr Lacerte: -- that's exactly what I'm saying, that the medical community is there to meet the needs of the work environment and not vice versa.

Mr Mahoney: I want to commend my book to you, by the way, which is already out, and says exactly that.

The Vice-Chair: Thank you for that unpaid political announcement.

Michel Lacerte, thank you for taking the time out this evening and giving us your presentation.

SARNIA LAMBTON CHAMBER OF COMMERCE

The Vice-Chair: I call our next presenters, from the Ontario -- the Sarnia Lambton Chamber of Commerce. Good evening and welcome to the committee.

Mr Gerry Macartney: Thank you. I know that was a Freudian slip, the Ontario chamber reference.

My name is Gerry Macartney, and I'm with the Sarnia Lambton Chamber of Commerce. I'm accompanied this evening by our president, Mr Lin Benway, and I do thank you for this opportunity. I don't have a book.

The Sarnia Lambton Chamber of Commerce, with its 965 member companies, is the recognized voice of business in Sarnia-Lambton. Our member companies employ over 26,000 workers and are comprised of both large manufacturers and small businesses.

Our recommendations reflect the general views and concerns of our members and are based on considerable expertise and experience. As such, they warrant serious consideration. We appreciate the opportunity provided through this process to comment on this important legislative initiative and welcome the opportunity to respond to any questions the committee may have.

The industries in Sarnia-Lambton are comprised mainly of petrochemical manufacturers and their related subindustries, and that's really the point I wanted to stress to you tonight, that we come here with a bit of a difference. We know you've heard from other business groups and the Ontario chamber and labour groups and so forth, but I really want you to understand that Sarnia and the petrochemical sector in particular across this province are different, and I'd like you to recognize that today. It's been estimated that over 80% of our area's economy relies on these petrochemical manufacturers in one way or another. It's also well documented that the manufacturing sector in Ontario provides over 75% of all WCB revenues. The petrochemical industry, you may know, is the third-largest manufacturing sector in the province of Ontario. It has some $12 billion in exports and employs over 55,000 people.

Having said that, the committee needs to appreciate how vitally important it is that these industries remain competitive, particularly in the face of shrinking domestic markets and increasingly difficult global conditions. In short, we think we have a stake.

These companies and their employees contribute very significantly to the provincial tax base in Ontario as well as providing the bulk of revenue for our municipal coffers. As well, these industries provide a critical and highly desirable value added contribution to our provincial economy. Examples of this include gasoline, lubricants, anti-freeze, carbon black and fertilizers. Also, many other industries, such as automotive, pharmaceuticals, textiles, steel, plastics and rubber, rely totally on feed stocks manufactured in the Sarnia-Lambton area. There is a clear and well documented history of job creation via the multiplier effect associated with these industries.

Most manufacturers in the Sarnia-Lambton area are, in the main, globally based. These industries traditionally attract highly desirable corporate citizens who contribute greatly to the economic and social fabric of our community. As with other globally based industries, these organizations can invest future capital, and its corresponding job creation, anywhere in the world. There is no inherent reason for them to invest in the province of Ontario. They can and do invest in those jurisdictions that will maximize their return on investment.

Let's look at Sarnia-Lambton's record for a moment.

Industries in Sarnia-Lambton have a long-standing and demonstrated focus on safety training and performance. This awareness has been brought about by a series of programs and practices, including the Responsible Care Codes of Practice. Industries in Sarnia-Lambton have for decades been recognized for having the best safety records of any of the manufacturing sectors throughout North America. In fact, their consistently high levels of safety, coupled with their low levels of injury, are the envy of the industrialized world. As well, the severity of injuries reported in this sector are significantly less than those reported in other sectors. This is not chance. It's a product of sound business practice.

2010

The excellent work that has been accomplished in this community, and in particular in the petrochemical sector, must not be overlooked or compromised. Bill 165, in our view, will in fact compromise this work and our future competitiveness.

Let's talk about WCB's fiscal accountability.

Through the Premier's Labour-Management Advisory Committee -- PLMAC, which you've heard a thousand times this past week -- the Ontario Chamber of Commerce urged the government to adopt the approaches and recommendations that were identified in that process. Clearly, Bill 165 does not do that.

Fiscal accountability and responsibility are essential to sustaining a workers' compensation system in Ontario. The government, through the introduction of Bill 165, has signalled that it is backing down from that challenge to significantly revamp the WCB system to have it become financially sustainable.

The purpose clause: Bill 165 proposes a purpose clause that outlines a blank-cheque provision of compensation and rehabilitation services. If a purpose clause is to be included, it must be balanced and complete, that is, the purpose of the act is to provide fair compensation in a financially sound manner -- ring a bell? -- with clearly articulated accountability; it should provide evaluation of proposed changes to benefits; and it will require ongoing monitoring of programs to realize better efficiencies while improving effectiveness. It is imperative, therefore, that the crown and its agencies be bound by the act to assure accountability.

As for experience ratings, this is the most sensitive area as far as the petrochemical sector is concerned. The employers and employees benefit from safe workplaces, I think we all agree. NEER -- you've heard this before -- the new experimental experience rating, and CAD-7 in the construction sector, have provided objective mechanisms for measuring and rewarding safety performance. The PLMAC had advised that NEER could be augmented by an incentive to encourage greater re-employment. In our view, the record on NEER speaks for itself. In short, it works.

The scheme being proposed under section 103.1 targets process and not results. In its attempt to address the original objectives of return to work, section 103.1 will in fact undermine the current success of the NEER program.

NEER has provided excellent incentives for good safety performance by reflecting that performance in the cost to business. Simply put, it's pure and it's simple. NEER cannot and should not be compromised. Any proposal to augment NEER in the area of re-employment must be objective, measurable and clearly designed to contribute to this focused agenda.

Further to our concerns on the experience ratings, it should be pointed out that industries have always been grouped together in accordance to sectoral definitions. These groupings are also regulated by experiential ratings. Such is the case with the petrochemical sector, where, as a result of excellent performance, this sector enjoys a substantially lower cost for WCB than the average, and the average we believe is about $3.24 per $100 of payroll.

In 1993, if you're interested in one statistic here, this sector, the petrochemical sector, reported a 0.9 lost-time injury per 200,000 person-hours work. That's less than one reported injury for 200,000 hours of work, and that's due in large part not only to the employers. I think some credit, a lot of credit, needs to go to the employees and the workforce, and I'm sure Ken Glassco of the Sarnia labour council will reflect on that after we're done. So it's a joint effort, and it's well deserved. It's one of the best records in the industrialized world.

Industry sectors that have consistently outperformed the average should not be forced to pay for the poor performance of other sectors or industries. Should Bill 165 be passed into law, this indirect form of subsidy for others will seriously impact the competitiveness of Ontario's manufacturers. In theory, a better option might be to have employers pay for the WCB services that they use, or the claims. It's a theory. One average industrial rate could destroy the promotion of workplace health and safety, and that's the greatest fear from the petrochemical sector.

In conclusion, it's critical to ensure that workers who are injured on the job in the province of Ontario receive fair and just treatment. Similarly, employers who place a high priority on safety in the workplace, with the accompanying demonstrable results, should also receive fair and just treatment along with the appropriate tangible incentives.

The Workers' Compensation Board, as the name indicates, is a workplace accident insurance plan. As such, it must be managed accordingly. It is not, nor was it ever intended to be, an employer-funded, universal safety net.

Bill 165 does not represent progress towards a framework for assuring the long-term viability of the workers' compensation system in Ontario. As presently constituted, we can see no winners coming out of this new legislation, not the employees, not the employers and not the province of Ontario. Sarnia Lambton is of course not alone in this assessment, since the business steering committee, as you already know, has withdrawn its support for the implementation of Bill 165 as well as the advent of the royal commission on the WCB.

I think it's worth repeating that the business steering committee consisted of the Council of Ontario Construction Associations, the Ontario Chamber of Commerce, the Canadian Chemical Producers' Association, the Canadian Manufacturers' Association, the Canadian Federation of Independent Business, the Employers' Advocacy Council, the Employers' Council on Workers' Compensation and the Retail Council of Canada, to name a few. In other words, 85% of Ontario's employer base is represented by the BSC.

Regrettably, this legislation condemns us to the errors of our past and will not significantly relieve the monumental debt burden that has been and continues to be accumulated by the board. New legislation must be drafted that takes into account our concerns and those of the manufacturers and businesses throughout Ontario. Only sound reasoning and effective consultation can produce those results that are required by all Ontarians.

I just wanted to add that our fear, and if there's a message that can be taken back to the government, is that we have once again asked business to consult with labour. There was a historic accord developed by consensus by those two parties and the government has chosen to ignore it. I'll let labour speak for itself. Apparently they're not all that pleased with the results either. But business is clearly not pleased: not pleased that every detail wasn't followed in the bill, but very displeased that the accord was not even understood. There were no checks and balances. There was no checklist offered back to business to say: "Well, we've made some changes. Do you agree with them?" That was never offered. So it's not surprising that that group has withdrawn its support for the bill and for the advent of the royal commission.

I worry about what will happen the next time the Premier, to quote him, looks for business and labour to work together to produce a new system. I worry about what happens the next time, the next initiative that comes along, legislative or otherwise, where business and labour are asked to sit down again. Where will the trust be? Has that been breached, and is it recoverable?

Thank you very much for your time.

Mr Hope: One of the questions I have, and it's just because you were talking on behalf of the chamber of commerce representing a number of businesses and you only spoke about the petrochemical industry in itself, so I have to ask you a question: Do you feel that cutting benefits and services is the only way to control the unfunded liability?

Mr Macartney: I don't think it's ever been suggested that it's the only way, Mr Hope. I understand where your question's coming from, but it is not the only method, and I don't think the Ontario chamber or our chamber has ever recommended that.

Mr Ferguson: Thank you for your presentation. You have suggested that "Bill 165 does not represent progress towards a framework for assuring the long-term viability" of the board. Can I ask you, do you think the PLMAC represented progress towards a framework for long-term viability?

Mr Macartney: I'll answer yes on behalf of both parties who negotiated the accord. It wasn't perfect, but I don't know that there has ever been a deal drafted in this province that's been perfect. But I think when you take organized labour and for all intents and purposes the largest group of business representatives ever collected under one roof and they arrive at an accord, it almost behooves the government to adopt those policies. But regrettably they were not.

Mr Ferguson: Yes, and it was unfortunate that business decided to walk away from the table and decided not to sign the agreement, but my follow-up question is, have you supported PLMAC? You said yes, that would move the board towards a sense of financial responsibility.

Under PLMAC, the unfunded liability by the year 2013 would be about 55% of the debt. Under Bill 165 -- and nobody has challenged this; nobody has said that in fact this is not the case -- the projected unfunded liability will be about 55%. So can I ask you to explain your position?

Mr Macartney: The numbers that you quote, from my understanding, have never been authenticated and are soft numbers at best. So if PLMAC agreed to those numbers, it was on a soft basis and not on a --

Mr Ferguson: They're conservative numbers, you're correct, and they're numbers that have come out of the Ministry of Labour as well as the Workers' Compensation Board, and they're numbers that have been used time and time again by people that you purport to represent.

Mr Macartney: If the financial accountability through the framework that has now been discounted from the accord -- and that was one of the premises of the accord, that there be a fiscal responsibility framework. Having removing that, the government is now no longer accountable for that fiscal accountability under this bill, which worries business, of course. So the only answer I can give you is, if you'd left it alone, according to the accord, although it wasn't unanimously agreed to, it was a consensus nevertheless.

2020

Mr Mahoney: The first thing I have to do is correct the record, because I think from time to time Mr Ferguson and others like to say things and get it on the record and then they're supposedly true.

Business did not walk away from the table under the PLMAC process. They made a deal. The deal was agreed to by all parties involved and they were betrayed by the government. It was after the announcement --

Interjections.

Mr Mahoney: It was after the announcement, very clearly, of appointing Lynn Williams --

Ms Murdock: That's absolutely garbage.

Mr Mahoney: -- or the leaked rumour of appointing Lynn Williams to chair the royal commission that business walked away from the table.

Interjections.

Mr Mahoney: There was an agreement. Let's just be clear about that. I want to assure you of one thing. The next time the Premier calls business and labour together, she will listen to them.

The question that I have, sir, and thank you for your presentation --

Mr Klopp: You forgot to clap.

Mr Mahoney: Believe me, that day will come.

You talk about how a better option might be having employers pay for the services they use. In essence, making everybody schedule 2, I guess, is what it would ultimately do. The concern that I would have about adopting a system like that would be, how do you ensure, in all fairness, equal protection for all injured workers across the province in dealing with employers if they're just left? Admittedly, there are good employers and bad employers. I don't think anybody can deny that, and it's the bad ones who drive up the costs for the good ones. So how do you ensure in fairness that an injured worker injured on a job site through no fault of their own -- under this system an injury occurs. How would they get treated fairly if we were just sort of to leave it up to the employers to pay?

Mr Macartney: I understand the question. We emphasize the words "in theory." It's only a theory and I don't think it's a workable one. Businesses like the petrochemical sector understand fully that not everyone can afford to pay the kinds of services that are required through injured workers on smaller companies etc. We understand that, and we understand that presently some sectors are paying part of the freight for others who might not be able to afford it. But the imbalance that will be created by Bill 165, if passed, will threaten that balance and it will also threaten the incentive for sectors like the petrochemical sector to execute good workplace safety. They've earned it and they'd like to keep it.

Mr Mahoney: Let me ask you to be very specific about your concerns about the purpose clause. If a statement around financial accountability is not included in the purpose clause, what can that lead to in the interpretation in the act, and do you have any specific sections of this bill identified?

Mr Macartney: Not specifically, but in a word, gridlock. If you have a government that is not made accountable by its own bill and yet has policy guidance over the WCB, how can you ever control expenditures? On one hand, you're asking a board, notwithstanding that the president wasn't invited, to control expenditures in a fiscally accountable manner, and yet the government will control policy for an extended period of time. I don't think they work hand in hand. In fact, they are contrary.

Mr Mahoney: Thank you.

Mrs Witmer: Thank you very much for your presentation. The one thing I've certainly learned today is that the petrochemical industry has an excellent safety record. We heard from Novacor this morning and they pointed out their record in the past few years.

The other thing they pointed out in talking to the issue of experience rating was the fact that at the present time obviously their assessment rate is very low because of the excellent safety record, and if we were to go to a uniform assessment rate, that would triple for them. It would mean an additional $1 million. Certainly they expressed the concern that when that is taken into consideration, companies such as Novacor, and obviously others in the province, would have to seriously consider whether they would make further investments.

I think that's one issue that has been totally overlooked by the government and also some of the unions that have appeared before us. If you drive up the cost of the system further for the employer community, you are also going to, in the end, eliminate jobs for employees. I don't know what discussions you've had in the Sarnia-Lambton area concerning that, but has there been discussion about the impact?

Mr Macartney: Quite clearly, the end result of disproportionate increases to those WCB premiums is lost jobs. Nobody likes to say it, but that's the sad truth. Every time there's a hit -- we like to refer to it as another rock in the knapsack of business. Every time there's one of those hits, the very people these pieces of legislation are allegedly designed to help are the ones who end up getting hurt.

I stated in my presentation that, by and large, petrochemical industries are globally based and, as such, they will invest their money in the most hospitable jurisdiction they can find. If Ontario is not perceived to be that way as a result of WCB costs etc, then it is defined as non-hospitable and they will move. That's not to sound threatening. I hope for our sake in Sarnia-Lambton they don't pick up their tent and move. But for new investment, particularly for new capital expenditures, why would they look to inherit the debt already incurred by WCB as a burden to their investment? Why wouldn't they look elsewhere? It's a question the government needs to ask itself.

Mrs Witmer: I know in another conversation I had with someone in the auto industry, that was an issue they were also looking at: Will you bring the contracts into Ontario or will you go elsewhere?

Mrs Cunningham: The only thing I'd like to add is that during the hearings today there have been a number of companies from southwest Ontario that have appeared before this committee and there's been so little recognition of the good work they have done in the area of rehabilitation and workers' compensation.

I wanted to ask you a question with regard to the present system now. When there are rates applied to companies for workers' compensation and those companies improve their track records when it comes to rehabilitation, getting people back to work, how do they go about having these rates reassessed and how long does it take to have them reassessed?

Mr Macartney: Under the present system?

Mrs Cunningham: Yes, right now.

Mr Macartney: Not as long as you might think. That's really the beauty of the NEER experiential rating system, that in the subsequent year it adjusts itself and your premiums are adjusted accordingly. But it takes a year of experience to determine that. If you throw NEER out, you jeopardize that balance and you jeopardize the incentive for any business, any sector, to want to improve itself. That was the whole idea behind the NEER system to begin with.

Mrs Cunningham: When was NEER introduced?

Mr Macartney: In 1987.

Mrs Cunningham: Mr Chairman, just a point for the committee: NEER was introduced in 1987 and the reassessments on behalf of the companies in this area have been done by this Labour minister of this government, sometimes waiting two, three, four years for this reassessment. Once NEER caught up and was given an opportunity to get in place after two or three years, we started to see the fruits of the labour of the system work.

I can tell you that the minister, Mr Mackenzie, in spite of Mr Hope shaking his head, has visited a number of companies, including Cuddy, which is here this afternoon and will be here in the next presentation. There ought to be some recognition for the expertise of those companies as in fact they advise this government on how we can make things even better, and there is none.

I just wanted to make that point on your behalf. No recognition for anything that's been worked out in the last five years; nothing.

The Vice-Chair: Thank you, Mrs Cunningham.

On behalf of this committee, I'd like to thank the Sarnia Lambton Chamber of Commerce for their presentation this evening.

JIM PATERSON
DAWN JANVEAUX

Mr Jim Paterson: My name is Jim Paterson. I'm presenting the presentation tonight. I'm from Champion Road Machinery. With me I have Dawn Janveaux from Cuddy Foods and Marianne Hoare from St Thomas-Elgin General Hospital. I'd like to comment that the previous two presentations are going to be tough to follow.

I'd like to begin by explaining who we represent. We represent 14 employers in this area, and this brief is the joint effort of those employers, representing an approximate employment level of 25,000 and a total assessment of approximately $27 million. These employers are not just from the London and Middlesex county area, but employers in Essex, Elgin, Huron and Kent counties. It represents our joint view. Employers from Essex and Kent counties may make some brief comments on these issues when they appear in front of the committee tomorrow afternoon.

2030

We intend to address a number of issues contained in Bill 165; namely, vocational rehabilitation, reinstatement, medical reports and permanent disability supplements. Other issues such as the purpose clause, experience rating and governance will be presented by employers representing the London, Middlesex, Essex, Elgin, Huron and Kent employer community during their time slots over the two days of committee hearings in London.

Vocational rehabilitation and reinstatement: We have decided to deal with these two issues as one, since the two are, in the case of many injured workers, completely intertwined. We are somewhat pleased with the additional rights given to employers, allowing their involvement in the delivery of vocational rehabilitation services, whether it be (1) to facilitate a return to work with an accident employer, or (2) a program designed to give the injured worker the skills to become employed with a new employer.

As well, we are not opposed to the principle of expansion of mediation services. In this regard, we would caution that mediation services can only be positive if they are voluntary and if they do not hinder the appeal process where one of the parties is opposed to mediation.

However, one specific subclause for mediation services is, in our judgement, quite improper. Paragraph 72.1(1)6 provides for mediation services after the board has determined, on its own application, that the employer has violated re-employment obligations contained in section 54 of the act. It seems to us that mediation is wholly inappropriate at that point and that the right given to a worker to object to a determination by the board is ludicrous. Workers have rights to bring their own complaints to the board under subsection 54(11). In effect, they are not, or at least ought not to be, a part of any so-called mediation under a determination made under the proposed amendment to subsection 54(11), giving the board a unilateral right to make a section 54 determination.

That said, our most serious objection is to the two new punitive aspects of vocational rehab and reinstatement; namely, sections 10 and 27 of the current bill. Section 10 allows the board, presumably adjudicators or case workers, on their own initiative, to determine that an employer has violated the re-employment provision of the act. Section 27 would allow case workers to determine that employers had failed to cooperate in the provision of vocational rehabilitation services to workers.

Both changes, in our submission, are ill-considered and will only add to the adversarial nature of a system which is already far too adversarial. There is already a near crisis at the hearings branch and at the appeals tribunal, with requests from both workers and employers flooding in at record pace. It is hard to imagine that these two sections will do anything but add to the problem. Certainly the employer community represented here warns the committee that findings under either section, if enacted, will result in a deluge of appeals to any negative decisions on reinstatement obligations and vocational rehabilitation cooperation.

Section 54 contains provisions allowing injured workers to bring a complaint where they believe their re-employment rights have been violated. These changes, which would allow the board to initiate such action, would inevitably create a hostility between case workers, adjudicators and employers far more serious than any remedy it would provide. It would throw a chill into the free flow of information exchanged by the parties. Finally, it would surely bring about a saturation where employers would want these case workers and adjudicators to be called as witnesses at the appeals to outline why they made the determination they did. Since these employees are not compellable, the frustration and anger at being unable to confront the accuser would only grow.

We believe the current complaints-based system contains more than adequate protection for workers. Moreover, if a worker does not believe his section 54 rights have been violated and if the worker does not complain, why should the board itself become an advocate?

The next sentence I'd like you to strike, at the bottom of that page.

Employers have for years complained that they often have little say in the provision of vocational rehabilitation services, particularly where the injured worker is unable to continue with the accident employer and the vocational rehabilitation services are aimed at securing new employment. Now that that problem has been overcome, the legislation provides penalties for lack of cooperation.

The section, as drafted, does not indicate the nature of the penalty or the basis on which it may be imposed. We do not know if a single incident would trigger a penalty. We do not know if there would be a series of warnings such as those given to injured workers before they are cut off vocational rehab benefits. We don't know if employers would receive the same treatment as workers when they demonstrated a new willingness to cooperate. We don't know if that cooperation would trigger a cancellation of the penalty. In short, we have no answers.

It is our submission that the committee should simply scrap the amendments to sections 10 and 27. They will create added hostility, particularly between employers and individual board employees, that could poison the working relationship. The system needs to be less, not more, adversarial. These two sections simply add to the problem, and both put board employees right in the middle of the difficulty.

Medical reports: Given the treatment of employers in terms of vocational rehabilitation and reinstatement, it is incomprehensible to us why the same legislation has chosen to tie the hands of the employer community in facilitating the most basic of all vocational rehabilitation plans and the most fundamental of all reinstatement provisions; namely, a return to work. But that is exactly what is contained in this legislation. The bill, for the first time, attempts to address the two questions at the very core of all return-to-work situations:

(1) Is the worker able to return to work?

(2) If the answer to this first questions is yes, what restrictions or precautions are necessary to ensure that the return to work can be done in a manner which respects the worker's compensable injury?

There are some who believe these matters are essentially non-medical in nature and others who believe they are medical. That is a debate for another day. What we find completely unacceptable is a provision that return-to-work information cannot be given to employers without the consent of the worker.

Employers are not asking questions about diagnosis. We're well aware that such information invades the worker's right to privacy. If some employer does ask such information because that employer is ignorant of the law, doctors not only have the right, but the obligation, to protect the confidentiality of the information. The appropriate method for release of diagnostic information is the one currently in use, through an objection to a decision of the board on an issue involving medical diagnosis.

Employers need to know what actions they need to take to facilitate the return to work of injured workers. There is no place in that equation for any worker to have the right to frustrate that process. I'd like to add at this point that it is our understanding that Mr Thomas, in his appearance last week, told the committee a worker would not be penalized for withdrawing his consent. That I find rather strange. Yet Bill 165 contains the words "with the consent of the worker." To be blunt, a worker who withholds his consent can completely frustrate the ability of an employer to determine whether a worker can return to work, and, if so, with what restrictions.

It is our submission that those words should simply be removed. The regulation-making powers of the cabinet contained in the bill give the government all the power necessary to define and limit the information to be provided. The addition of a consent provision serves no useful purpose whatsoever and can simply be used to frustrate the very return-to-work process which the government says it desires. It speaks to a co-called "right" which is present in no other insurance scheme simply because it is not a right but a roadblock. It is adversarial in nature and has no place in this legislation.

Permanent disability supplements: The committee is well aware of the thousands of injured workers in receipt of benefits under subsection 147(4) of the act who are now eligible for additional supplements of $200 a month under this legislation. We are not here to debate the propriety of the government's basic determination to give an additional amount of money to those supposedly in need.

I will say, however, that there are indications that little careful analysis of the requests by individual workers for entitlement under subsection 147(4) was ever undertaken. As a result, we believe many workers are in receipt of benefits who do not meet the criteria established under this subsection. This is particularly disturbing when one considers that the cost of the subsection 147(4) benefits, together with the additional $200 a month to be provided by the amendments, results in a total cost of more than a quarter of a billion dollars each year. At a very minimum, some review of decisions to pay the supplement is in order immediately.

2040

We want to make some comments on the new $200-a-month entitlement. We do not believe the additional moneys should be tied to the basic pension; rather, they should be tied to subsection 147(4) and should end at age 65. The section which triggers this additional payment now ends at age 65 and the financial support to injured workers is transferred to the Old Age Security Act. Those injured workers who can demonstrate the additional need will receive benefits through the guaranteed income supplement, which pays up to an additional $460 a month for a single and $300 a month for each if you're married, with no outside income. It simply makes no sense to add to the financial burden of a workers' compensation system whose liability is already approaching $12 billion when an alternate system already exists.

If the committee chooses not to follow that recommendation, may we at least suggest a further review of the injured worker's finances at age 65 to ensure that the $200-a-month supplement is required and that pension and other benefits payable at 65 are not sufficient. The current reviews at 24 and 60 months provided for in subsection 147(13) do not adequately recognize retirement income sources.

In conclusion, Mr Vice-Chair, we hope the committee will seriously consider our respectful submission to it. Both employers and workers have an important stake in ensuring that the workers' compensation system be as efficient and effective as possible. It is with that objective in mind that we make our submissions to you today. You'll note in the back of that section we have a summary for your later viewing.

Mr Mahoney: Thank you for the presentation. In a minute, let me just go to the medical issue. I'm not sure that it would even be legal to do what you're asking, that a doctor would have the right to give out information without the consent of the patient. Just forget whether or not it's an injured worker; think of your own situation. If your doctor gave information out to your employer because you had phoned in sick and weren't at work and your employer phoned the doctor and he or she just gave that information out, I think --

Mr Paterson: But I don't think we're suggesting that. We're suggesting that the doctors in here have the right and they are obliged to protect the confidentiality of that information. We're not suggesting that they do give it out. We're suggesting that there's a system already in place that protects the worker from that information being released and it makes no sense to build in another system that replaces one that's already in existence.

Mr Mahoney: There have been some suggestions by some people that a standard, pre-arranged, pre-agreed-to form by everybody involved be developed for providing the information that would limit the type of information -- in fact, one presenter whom you referred to -- to demedicalize that information and make it simply information that would help in facilitating return to work or alternative work. Rather than getting involved in the issue of deleting "with the consent of the worker" and all of that kind of stuff and everything that implies, would you support a standard, agreed-to form that would clearly spell out the type of information that would be released and what it could be used for?

Mr Paterson: I think our committee would be willing to take a look at that, yes, because if you demedicalize it, in essence, you're not handing over any medical information. One thing that has to be recognized in that is that the place where we employ people and the place where Marianne would employ people are two different types of work and therefore one form may not fit everyone, but you might be able to come up with sector-specific-type forms that would do exactly as you are describing.

Mrs Witmer: Thank you very much for your presentation. It's an interesting grouping there that you've put together, lots of different places.

Mr Paterson: I would like to comment on that. We put a lot of work into this and we were fortunate enough to have some assistance from the government. I won't say which department we were involved in, I think it's obvious, but at the same time we had orders from that particular department head that we had to withdraw, which is a discussion for another day. We went through four days -- and Tannis remembers my name, I think, very well. For four days we were in communication to make sure we could get our spot back, and we were very distraught about a government that represents employers forcing us to drop out. But fortunately we were able to gather that group together and continue.

Mrs Witmer: I'm quite impressed by the diversity of the group and I really do appreciate your presentation, I think, based on the fact that there is that type of diversity. Certainly you've identified some of the real problems with the bill.

You stressed a couple of times that you are very concerned about the punitive aspects of the legislation and also the very adversarial nature of some of the pieces of the legislation. It's already a very adversarial system to begin with and certainly there are components that now make it more so. Is there any one piece in particular that you think will make for more confrontation?

Mr Paterson: For more or for less?

Mrs Witmer: More confrontation between the employer and employee communities, or one particular part that stands out.

Ms Dawn Janveaux: If I could just answer that, I think the one thing that concerns myself and our employer is the advocate type of role that I understand the adjudicators are possibly going to take with making judgements on whether or not an employer has met its vocational rehabilitation or reinstatement obligations. I feel that's very unfair. They don't have the tools, as it was mentioned before, or the training in order to do that. We have enough advocate teams out there and there are different groups that you can go to to get assistance with that. So speaking personally, I think that's going to be our biggest hurdle.

Ms Murdock: Actually, I was going to ask a somewhat similar question to what Mr Mahoney was having, because Dr Lacerte had identified that and called it by a special name. The deputy, in his remarks on Monday, also referred to the committee that the board will be putting together of all of the stakeholders -- employers, workers, health care givers and so on -- to formulate how that forum is going to be and exactly what information will be in it.

The language during the discussions between labour and management and the PLMAC with regard to the $200-a-month entitlement is what I want to address my comments to. That was probably the one big bone of contention between both sides in all of those discussions, how you were going to address the needs. There was a recognition by everyone that there were vulnerable workers out there, pre-1990, who were significantly affected and had very low monthly incomes. Both sides agreed that they existed and that something should be done. The question then came down to, what are we going to do?

Labour said $200 a month, and the PLMAC accord, dated March, basically said: "We can't reach any agreement on this and we're leaving it to the government to make a decision. But labour wants the $200, and management recognizes the need but doesn't want to do that."

Mr Paterson: If I can --

Ms Murdock: No, go ahead.

Mr Paterson: My understanding is that they don't want to make it a blanket $200. We're talking 40,000 workers here, and my understanding is they wanted to take $200 and just send it out to 40,000 workers and not bother finding out if all 40,000 under this system --

Ms Murdock: No, that's what you're saying in your presentation.

Mr Paterson: Yes.

Ms Murdock: You're saying there's been no examination of those people who were eligible for subsection 147(4).

Mr Paterson: Yes.

Ms Murdock: Some haven't even applied for it.

The Vice-Chair: Your question, Ms Murdock?

Ms Murdock: I guess what I'm saying is that I'm surely not hearing you say that those people don't deserve that money. They have the injury, they can't work and they deserve something in recognition of that.

2050

Ms Janveaux: I guess I just have one comment regarding that. We look at the aged in general. If you look at the aged in general, I guess my question would go back to --

Interjection.

Mr Mahoney: People like us; old people.

Ms Janveaux: Aged. I'm sorry, the aging population. So my question would go back, I guess, to you --

Ms Murdock: That's a declining population.

Ms Janveaux: Yes, a declining population.

Interjections.

Ms Janveaux: What happens to them is another issue.

Ms Murdock: They die.

Ms Janveaux: Not when they're 65, they don't.

Ms Murdock: No.

Ms Janveaux: I guess I'm looking at it that there is a system to give all individuals at the age of 65 some kind of funding to help with the later years. So you're saying that the injured workers need more?

Ms Murdock: Did you read the Globe and Mail this morning, in terms of how that aged population is living?

Ms Janveaux: Oh, I know they are living terribly.

Mr Paterson: I have one closing thing I want to speak to.

The Vice-Chair: Very briefly.

Mr Paterson: Yes. Mr Mahoney made a statement on August 22 which I'd like to throw back at the committee.

Mr Mahoney: Oh, no.

Mr Paterson: I'll have you know I taped that and transcribed it, by the way. He made a good point.

Mr Mahoney: All right.

Mr Paterson: One of the points he made is: "The most important, the most significant decision in an entire file is generally made by the most inexperienced person in the system. That's not their fault. Take a look, and I would encourage you to look, at the British Columbia model."

Believe it or not -- and this is what really throws me; I didn't realize this until I heard you say it -- our own government is asking employers to do nothing but train, train, train, and yet we turn around and we give these adjudicators three weeks of training.

Ms Murdock: That's wrong.

Mr Mahoney: That is not wrong; trust me.

The Vice-Chair: Order, please.

Mr Paterson: Sharon, if I could just continue, I would like to point out --

Interjections.

The Vice-Chair: Order.

Mr Paterson: No. I thank you for the conversation.

The Vice-Chair: A quick point.

Mr Paterson: My point is that whether it's three weeks or 12 weeks, it's still not right. As far as I'm concerned, you have somebody there making a decision on an injured worker's future and you give them incidental information. You need to give them a one-year minimum amount of training in order for them to make a decision that is going to do that worker and employer justice. So if you're going to spend money, spend it on training.

Ms Murdock: I agree.

Mr Paterson: I'm reinforcing it.

The Vice-Chair: Order, please. On behalf of this committee, I'd like to thank Champion Road Machinery and your committee for your presentation this evening.

COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION, LOCAL 914
SARNIA AND DISTRICT LABOUR COUNCIL

The Vice-Chair: I'd like to call forward our next presenter, from the Sarnia and District Labour Council. Good evening, and welcome to the committee.

Mr Ken Glassco: Hi there. How is everybody? My name is Ken Glassco, of the Sarnia and District Labour Council and Local 914 of the Communications, Energy and Paperworkers Union.

The Workers' Compensation Act has been in place for about half a century and during that time it has been changed, altered, amended, rewritten, added to, deleted from and massaged to a point where today it is a very large bureaucracy in which a claimant sometimes gets the feeling that they are in the land of Oz and their only allies, if any, are the tin man, a lion and a scarecrow.

Mr Mahoney: Bob Rae, Bob Mackenzie and Floyd Laughren?

The Vice-Chair: In fairness to the presenter --

Mr Glassco: That's right, give me a break now. Come on, I know you've been here all day now.

Mr Mahoney: Fire away.

Mr Glassco: Okay. Good day. My name's Ken Glassco, president of Local 914 of the Communications, Energy and Paperworkers Union, representing workers at Polysar, Cabot carbon, BASF, Union Gas, Welland Chemical, Nova Petrochemical and our 1,400 members. In addition, I'm presenting this brief on behalf of the 5,500 members of unions of the Sarnia and Lambton area who are affiliated to the Sarnia and District Labour Council. I'm here to present a brief to you on the potential changes to the act and my beliefs on these changes or lack of change.

I'm going to preface this by saying I am not an expert on these changes. I don't know all your fancy numbers and sections and all the rest of it. I've gone through all the information and I've digested what I think is important, looking at briefs and newspaper articles and all the rest of it.

My first area of concern is subsection 51(2). I personally have some serious reservations with the sharing of personal medical information regarding an employee returning to work. Part of my job as president of my local is the handling of most of our WCB appeals and any problems associated with a claim or in return-to-work situations. There might be some circumstances where this procedure would be the only method of returning to work, but too many times this medical diagnosis will or could be used as a tool for the employer to circumvent its obligations and duties on a return to work.

In addition to this, this diagnosis could be used -- and I stress, could be used -- in the future to deny or prevent opportunities for the claimant in the normal course of work through job progressions. I believe that the employee's physician should have some very serious input into these placements, but a medical diagnosis is not required. This legislation has been very difficult enough in the past to develop a proper re-employment, without providing the employer with confidential medical records.

My next concern deals with the experience rating system. Now, I'm not really going to deal with the statistics that Gerry Macartney from the chamber of commerce related to. I'm going to tell you a little story here. It's close to it but it's not on the button for experience rating.

A well-known petrochemical company walked in and bought out a huge petrochemical operation in the Sarnia area and, in a couple of years, sold off a very large portion of that to another petrochemical company, keeping only a very small part. In addition to the property, the buildings and the people, the seller was outnegotiated -- now, those are my words -- with regard to all long-term disability claims and WCB claims of the past and was saddled with all the liabilities of past WCB claims for the last 45 years. This was in writing and part of the sale agreement, to the best of my knowledge. I've never seen it, but this is what I was told.

The sellee, now with about 100 active employees, was and still is accountable for the 45 years-plus of workers' compensation cases. Imagine the cost, imagine the bureaucracy and the confusion involved every time an old claim surfaces, even though the employee with an old injury is now working for the new company. This injury was part of the original operation before the first sale. I now have to deal in the claims process with the intermediate employer -- I'll call them "the seller" -- who had little or no involvement at the time and still doesn't, because they sold them off.

This problem might not be directly related to the legislation, but it does point out some of the inequities with regard to experience rating. What it does is lay all the financial responsibilities of an operation with regard to experience rating on to the small operation that can ill afford this type of overhead.

In some lost-time cases that I am aware of, to an employee, financially, it doesn't make any difference whether you're on WCB or a private insurance claim. So in some cases, why report it or claim lost time when it is less hassle to book yourself off sick and receive the same pay or, in some cases, more pay. The company usually does not mind, as it keeps their statistics proper and reportable lost time to a minimum. The peer pressure from your fellow workers is tolerable because you were not the one to destroy the safety record and reset the clock for the million man hours without a lost time.

Now, they're not all like that; everybody doesn't operate like that. But there are cases that I'm fully aware of, ones that I've had to deal with. Accidents, illnesses and lost times are hidden under pay codes, private insurance plans, ignorance of the laws by employees and straight coercion by some employers. They are also hidden under the guise of "return to modified duties," "light duties," and "partially disabled and cable of performing some work." As a union, we try very hard to ensure that our members are represented properly, and as such, all accidents and injuries, whether they be lost time or not, are recorded and reported, not only for the present but for the future.

What's been happening lately is that, with the problems with all the insurance companies -- and I think if you're around the London area, everybody's heard of Confederation Life -- we are now getting into hassles about who you belong to, because if you walk in and claim compensation, the insurance companies are trying to wipe their hands of you and say, "Forget it; we're not interested in you; you're a compensation."

Now, you have to go through and you have to prove that. So when you're trying to prove that, where are you? You're in limbo sometimes. So with the costing and all the costs associated with medical benefits, weekly indemnity and long-term disability, some of the employees and some of the claimants are just left out in the middle of nowhere.

With regard to the inflation, my information tells me that those who were injured prior to 1990 will be receiving an increase of $200 per month. I applaud that direction. I would hope that the government will not forget those who had retired prior to 1990 and to my knowledge will be missed by this increase. Many of them have had their personal pensions, company pensions or union pensions seriously eroded as a result of their accident, injury or illness at a time when they could ill afford it. If service was lost or broken or if payments into private/company plans were not allowed, the payout of pension to a victim of a workplace accident or illness would be seriously reduced.

2100

I think we all know how absence from work affects the pension payout, especially in the later years (58 to 65). The terminology in pension plans is fairly well known: "Best 36 months' continuous service in the last 10 years" is an example. Take a guess as to what happens if you miss the last two years because of an occupational disease. Your calculation will be based on what you were making prior to your leaving the workplace, you will have lost in all probability two years' service and your pension will be based on old wages. You are immediately behind before you start.

Another concern is the inflation protection formula. I believe that a cap of any amount would be detrimental to those on pensions and of serious consequences to the younger workers who have to stay unemployable for the remainder of their life. I believe that indexing should be full and those injured should not be penalized any more than they already have been, although the return-to-work and rehab process of the board is much better than in the past.

Inflation today is under control or, if not under control, at least minimal. To have a cap will only punish those who have been injured and over the years will slowly erode any gain they might have made in previous years. I do not feel that the removal of the cap will make or break the Workers' Compensation Board in Ontario and create any more liabilities than we already have.

I would like to take this opportunity to commend the government on the bipartite board of directors that will give those with the most at stake a direct input into decisions that will affect them in the upcoming years regarding the policy and administration of the board. Hopefully, with this arm's-length approach the board can get on with its real mandate as stated in clause 1.1(a) of the act, and I'm just reminding everybody, "to provide fair compensation to workers who sustain personal injury arising out of and in the course of their employment or who suffer from occupational disease and to their survivors and dependants."

In closing, I would like to leave all of you with a few thoughts. I think that in 1994 much more should be done to ensure that labour and management in all areas of mutual concern, through or with their government, should be mandated to address these same concerns in some form of bipartite type of resolution process. I don't know what that is exactly, but I do believe that these same parties, as in the board of directors, must deal with their concerns at the shop floor/local level. Whether it be similar to joint safety and health committees, joint environment committees, training boards, health councils, employment equity or whatever the topic of the day might be, that is where it counts in the final analysis.

I will ask this question of all of you at these hearings today: How many joint submissions have you heard from both a union and a company? I would suggest very few -- I don't know for sure -- and more than likely none. That's a shame because I do believe that there are parts of this legislation that are of benefit to all. But because of our boundaries, our sacred cows and fears we back off and approach our problems from opposite ends. To address our concerns with return to work, special placements, modified duties, they should be addressed by those who are affected, and that is the company and the union at the local level.

To rely on a third party, whether it be WCB, a government or whatever, is not to my liking. I firmly believe that our issues of the injured, sick, diseased and physically disadvantaged must be dealt with by the two abovementioned parties. When it's legislated or mandated it becomes bogged down in the land of Oz that I mentioned earlier and could take months or years to become unbogged. Our yellow brick road is not quite as clear as it may seem.

In addition, I would like to thank all those employees of the Workers' Compensation Board in Ontario for their attention and cooperation in dealing with the thousands and thousands of claims that cross their desks each day. I realize that it must be sometimes a very unrewarding and stressful situation to be dealing with another person's "claimants, union reps or company reps" and their problems each day. And I personally want to thank all those adjudicators, clerks and everybody else I've dealt with over the years.

I will try to answer any questions, but like I reminded you at the beginning, I am not an expert.

Mrs Witmer: Thank you very much for your presentation, Ken. I shall remember this even though you're at the end of the day and we've heard a lot. I do appreciate your comparison to the bureaucracy and the land of Oz and the claimant and the allies, the tin man, the lion and the scarecrow. It's quite an apt comparison and most appropriate.

I think you asked a question which is extremely important and that is, how many unions and employers did come before this committee? To my knowledge, I don't think we've had any and certainly, if we're going to resolve the issues that face the injured workers and the employees and the employers in this province, it will be absolutely essential that those parties do sit down and resolve the issues facing them. So, on behalf of our party I thank you for your presentation today.

Mr Hope: First of all, Ken, I want to congratulate you on your presentation, especially near the end, where you recognize the claims adjudicators. You know, especially if you deal with them on a regular basis, you understand the workload they have and stress relationship that is there about dealing with case loads.

One of the comments that keeps being brought up that I think is important to try to bring out in perspective is how frustrating it is for workers, and I know you and I have had conversations over the years about the issues of workers' compensation and trying to deal with it. You clearly indicated in your presentation today, why aren't there joint presentations being done when we know there's a common goal to resolve the problem; and I'm wondering, how do we then take it from this legislative body and into our workplaces where, for instance, workplaces might not have the strength of a strong union or even the strength of a union? They might have a union but it might be a weak one, in that sense.

Mr Glassco: I don't know. It just seems to be that there has to be a better mechanism to do it. I didn't lobby the employers as much this time around as I have in other submissions over other topics over the years. This particular case here -- summertime, vacation and I kind of wasn't around, so I didn't really do it. But I remember before with changes to the Labour Relations Act, whatever, there were a lot of points in there that we agreed on, even some of the ones that I worked very closely with. But do you think I could get them to a joint presentation with me? There was just no way. It seems like we polarize ourselves and, "If I sat up there with Glassco it's just not going to go right," or my union rep's going to say if I sat up there with Union Gas or whatever it's just not right, "We've got to have you there and you over there and everybody's going to kind of listen," you know.

There are problems with some of the weaker unions or no unions. Through the labour council I get numerous calls from people and they're needing assistance and they really get lost. We don't have a compensation office in Sarnia. We deal with London all the time and I'll tell you it is really a nightmare. I know they're trying because I've talked to them all. I talked to a couple of them today, in fact. You know, you phone down, you're trying to do something, they're trying to find out where their claim is and basically all you get is answering machines and whatever because everybody is just so busy. I just feel that there's got to be a lot more done somehow on the shop floor level, whether you're talking return-to-work or whatever.

We've got to deal with that problem there rather than letting governments try to do the work for us all the time. That is difficult in some cases because there are some irresponsible employers that don't care and there are some irresponsible unions that really don't want to get along that much either.

Mr Mahoney: Your point is a good one, by the way: Did we have any joint submissions? I can't think of any but I can think of numerous groups that agreed with the fundamental principle that the bill should be withdrawn. I've heard injured workers say it should be withdrawn; I've heard numerous business presenters say it should be withdrawn.

The other thing that's been fascinating is, I've sat here and listened to unions in some instances come forward -- one earlier today with 17 specific objections to the bill recommending 17 amendments to the legislation. I asked them, "If you disagree with 17 aspects of this bill and disagree so strongly with them and you're not successful in getting those 17 amendments through, would you want the bill withdrawn?" The answer was, "No, we think there are other things that" -- it's just mind-boggling. If you don't like it that much, why in God's name would you want it to pass? Why wouldn't you want some homework to be done to make it better?

Mr Glassco: You saw mine. I mean, I'm not totally ecstatic about everything but it's a middle-of-the-road-type thing. There are some good things and there are some maybe negative things in there. I'm not asking for it to be withdrawn. Somebody else might have, but that's up to them I guess.

Interjections.

The Vice-Chair: Order. It's Mr Mahoney's time.

Mr Mahoney: Oh, it's still my time. You've outlined a couple. The point is that I can understand someone who comes forward with a couple of things he disagrees with, but to have as many as 17 and then still, in a very obvious partisan way, pat all the government members on the back kind of makes me sick.

The issue of the medical reports: Would you support a common form maybe done on a sectoral basis -- the analogy was given earlier, a suggestion by an earlier presenter -- to de-medicalize that information and just give the stuff that specifically relates to return-to-work? Would you support something like that?

Mr Glassco: As the gentleman from Champion said, I'd have to have a look at it also. As long as it was used for what it was meant to be used for and not for something else. My problem is that sometimes, in some places, medical information is used on somebody's weekly indemnity claim somewhere or for some other case. But if it referred to "as it applies to this job" or whatever, then I don't think I would have a problem.

The Vice-Chair: On behalf of this committee, I'd like to thank the Sarnia and District Labour Council for its presentation this evening.

Mrs Joan M. Fawcett (Northumberland): Just a question to ministry staff or if someone has the answer: If older workers are on a permanent disability pension and when they turn 65, then they're eligible for CPP and the old age pension, do they then get all three pensions, is what I'm wondering. And so if the older injured workers now, who are let's say 70, would be eligible for this extra $200 then that would also -- I mean, if you passed this. I guess I'm wondering if anything is ever subtracted.

Ms Murdock: We don't know about the federal program and how that would work, whether or not there would be some clawback, but I think it's been stated that in terms of the social assistance program there would be no clawback.

Mrs Fawcett: So there would be no clawback from the WCB.

Ms Murdock: Right.

The Vice-Chair: Seeing no further business, this committee stands adjourned until 9 tomorrow morning.

The committee adjourned at 2113.