EMPLOYERS' ADVOCACY COUNCIL CENTRAL ONTARIO CHAPTER
INJURED WORKERS GROUP OF BRANT COUNTY
WATERLOO REGIONAL LABOUR COUNCIL
ONTARIO PHYSIOTHERAPY ASSOCIATION
AUTOMOTIVE PARTS MANUFACTURERS' ASSOCIATION
CANADIAN AUTO WORKERS LOCAL 636
RETAIL WHOLESALE
CANADA
UNITED STEELWORKERS OF AMERICA
CANADIAN ASSOCIATION OF REHABILITATION PROFESSIONALS, ONTARIO
ONTARIO HOTEL AND MOTEL ASSOCIATION
CHAMBER OF COMMMERCE OF KITCHENER AND WATERLOO
ONTARIO HOME BUILDERS' ASSOCIATION
WATERLOO REGIONAL LABOUR COUNCIL
KITCHENER-WATERLOO-CAMBRIDGE INJURED WORKERS GROUP
WATERLOO, WELLINGTON, DUFFERIN, GREY BUIDING AND CONSTRUCTION TRADES COUNCIL
UNITED STEELWORKERS OF AMERICA, SOUTH CENTRAL ONTARIO AREA COUNCIL
STRATFORD AND DISTRICT LABOUR COUNCIL
CONTENTS
Tuesday 12 August 1997
Workers' Compensation Reform Act, 1996, Bill 99, Mrs Witmer /
Loi de 1996 portant réforme de la Loi sur les accidents du travail,
projet de loi 99, Mme Witmer
Employers' Advocacy Council, Central Ontario Chapter
Mrs Sherri Helmka
Mrs Jane Adams
Injured Workers Group of Brant County
Mr Ian Aitken
Waterloo Regional Labour Council
Mr John Cunningham
Ontario Physiotherapy Association
Mrs Gloria Schmuck
Ms Dorothy Borovich
Automotive Parts Manufacturers' Association
Mr Ken MacDonald
Canadian Auto Workers, Local 636
Mr Jack Dunn
Mr Nick DeCarlo
Retail Wholesale Canada; United Steelworkers of America
Mr Dave McCormick
Canadian Association of Rehabilitation Professionals, Ontario
Ms Elaine Hobbs
Ontario Hotel and Motel Association
Ms Ellen Fegan
Chamber of Commerce of Kitchener and Waterloo
Mr Jim Berner
Ontario Trucking Association
Mr Michael Burke
Ontario Home Builders' Association
Mr Byron Scott
Mr Andy Manahan
Waterloo Regional Labour Council
Ms Denise Carter
Mr Tom Rooke
Mr Bob Cruickshank
Kitchener-Waterloo-Cambridge Injured Workers Group
Mr Karl Crevar
Mr John Sweeney
Mr Bill Stubbs
Waterloo, Wellington, Dufferin, Grey Building and Construction Trades Council
Mr Tom Oldham
Mr Alex Lolua
United Steelworkers of America, South Central Ontario Area Council
Mr Pat Monaghan
Stratford and District Labour Council
Ms Bonnie Henderson
STANDING COMMITTEE ON RESOURCES DEVELOPMENT
Chair / Présidente
Mrs Brenda Elliott (Guelph PC)
Vice-Chair / Vice-Président
Mr Jerry J. Ouellette (Oshawa PC)
Mr Dominic Agostino (Hamilton East / -Est L)
Mr David Christopherson (Hamilton Centre / -Centre ND)
Mr Ted Chudleigh (Halton North / -Nord PC)
Ms Marilyn Churley (Riverdale ND)
Mr Sean G. Conway (Renfrew North / -Nord L)
Mrs Brenda Elliott (Guelph PC)
Mr Doug Galt (Northumberland PC)
Mr John Hastings (Etobicoke-Rexdale PC)
Mr Pat Hoy (Essex-Kent L)
Mr W. Leo Jordan (Lanark-Renfrew PC)
Mr Bart Maves (Niagara Falls PC)
Mr John R. O'Toole (Durham East / -Est PC)
Mr Jerry J. Ouellette (Oshawa PC)
Mr Joseph Spina (Brampton North / -Nord PC)
Substitutions / Membres remplaçants
Mr Gilles Bisson (Cochrane South / -Sud ND)
Mr John L. Parker (York East / -Est PC)
Mr Richard Patten (Ottawa Centre / -Centre L)
Mr E. J. Douglas Rollins (Quinte PC)
Mr R. Gary Stewart (Peterborough PC)
Clerk / Greffière
Ms Donna Bryce
Staff / Personnel
Ms Lorraine Luski, research officer,
Legislative Research Service
The committee met at 0902 in the Holiday Inn, Cambridge.
WORKERS' COMPENSATION REFORM ACT, 1996 / LOI DE 1996 PORTANT RÉFORME DE LA LOI SUR LES ACCIDENTS DU TRAVAIL
Consideration of Bill 99, An Act to secure the financial stability of the compensation system for injured workers, to promote the prevention of injury and disease in Ontario workplaces and to revise the Workers' Compensation Act and make related amendments to other Acts / Projet de loi 99, Loi assurant la stabilité financière du régime d'indemnisation des travailleurs blessés, favorisant la prévention des lésions et des maladies dans les lieux de travail en Ontario et révisant la Loi sur les accidents du travail et apportant des modifications connexes à d'autres lois.
The Chair (Mrs Brenda Elliott): Good morning, everyone. Welcome to the standing committee on resources development conducting hearings on Bill 99. Just to let you know, we have requested more chairs to be brought in and they'll be arriving very shortly.
The committee is pleased to be here in Cambridge this morning and we welcome our first presenter, the employers' advisory council representative. Would you come forward, please.
Mr David Christopherson (Hamilton Centre): Point of order: Once again we are in one of the six days of hearings, totally inadequate to deal with a bill of this magnitude, and once again I move that this committee unanimously agree to recommend to the government and the other House leaders that these hearings be extended, that there be proper consultations and that injured workers across the province of Ontario be given an opportunity to be heard in all of the cities in which they're to be heard in.
Mr Richard Patten (Ottawa Centre): I'll second the motion, by the way.
The Chair: Thank you, Mr Patten. As you know, this committee operates under the agreement from the House leaders, but do I hear unanimous consent for such a motion? No, there is not unanimous consent.
EMPLOYERS' ADVOCACY COUNCIL CENTRAL ONTARIO CHAPTER
The Chair: We'll move forward then to our first presenters. Welcome. If you would introduce yourselves, please, for Hansard. You have 20 minutes in which to make your presentation and you may or may not allow time for questions in that time.
Mrs Sherri Helmka: Madam Chair, I would just like to correct you. It is the Employers' Advocacy Council, the central Ontario chapter.
The Chair: My apologies.
Mrs Helmka: My name is Sherri Helmka. I am the executive director of the Employer's Advocacy Council. With me today is Jane Adams, who is the provincial vice-chair and the central Ontario chapter chair as well.
The Employers' Advocacy Council appreciates the opportunity to participate in the discussions of Bill 99. It remains very evident to each and every one of us that the need for reform of the Ontario workers' compensation system has been generally accepted. Previous governments have undertaken initiatives of reform, but it is our view that this government is committed to restoring Ontario's workers' compensation system to an affordable and viable system that provides protection for employees and employers impacted by workplace accidents.
The EAC was founded in 1985. It is a non-profit volunteer organization of employers across Ontario. Our mission is very simple. It is to reduce employers' workers' compensation costs by influencing constructive change to workers' compensation in Ontario and we do that through the education of employers on all aspects of workers' compensation and workplace health and safety.
We have over 1,700 members in nine regional chapters across Ontario and the EAC represents a broad cross-section of Ontario's diverse economy. Our members include small businesses employing less than a handful of employees and large multinational organizations. We also have many public sector employer members and employers from schedule 2.
All of these employers have come together under the membership of the EAC to voice shared concerns about the financial viability and cost of the workers' compensation system, frustration and a lack of confidence in the system and a common desire to effect constructive and sustainable change.
The membership of the Employer's Advocacy Council welcomes reform in the area of workers' compensation financial accountability and endorses the government's foresight in recognizing the necessity for reform.
The EAC publicly affirms our commitment to work with this government and the Workers' Compensation Board to improve the workers' compensation system for the benefit of employers and their employees. It is the view of the EAC that Bill 99, with changes, offers a reasonable solution not only to the problems of the past but to the expectation of the future.
EAC is disappointed, however, by the obvious omission of a new definition of accident. It is our opinion that the government may lose the opportunity to fix the system if this basic issue is not addressed. The Common Sense Revolution's six steps to solvency for the WCB stated: "The definition of 'accident' will be redefined to ensure that injuries are directly traceable to the workplace," and the 12-point Witmer plan stated: "Redefine 'accident' to ensure that compensation is awarded for workplace injuries only."
We are aware of the government's concerns of uncertainty and the possibility of additional litigation. However, this has been a long-standing Progressive Conservative Party promise and we urge you to fulfil that commitment.
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EAC is also disappointed that the three-day waiting period appears to have been shelved. We understand the concerns of the minister and the government; however, this is common practice in any insured or self-insured short-term disability, sickness and accident or weekly indemnity plan. Most of these plans also include a provision to waive the waiting period if the individual is hospitalized the first day. The EAC suggests that all employees be treated equitably in any wage loss insurance scheme.
Mrs Jane Adams: The EAC supports the incorporation of prevention of injury and/or disease within the new act and we strongly endorse the establishment of a health and safety advisory council. We anticipate that the government will examine thoroughly and establish parameters of responsibility for enforcement and jurisdiction between the Ministry of Labour and the board in the area of prevention.
The EAC supports the exclusion of chronic occupational stress.
In regard to chronic pain, the EAC is still of the opinion that chronic pain should not be compensated. We believe that pain that persists beyond normal healing times or extends to other sites on the body without any apparent reason is difficult to link to a specific workplace incident due to its multicausal nature.
Having said that, if the government proceeds on this course, then the EAC proposes that chronic pain be defined under section 2 of the Workplace Safety and Insurance Act, and further proposes that the specified time restrictions be articulated within the act. Logic tells us that section 46(l), compensation for non-economic loss, would not be applicable, as there would be no permanent impairment.
The EAC resolutely supports section 21(5), consent re functional abilities. If employers are to be compliant with the act, then this information is critical in providing suitable employment so that the employee can return to their job and workplace.
Members of the EAC are concerned regarding the inclusion of non-regulated professions; for example, massage therapists, social workers etc. Some of these professions are not regulated by law, but many have voluntary professional bodies. Some voluntary bodies provide certification courses and registration, which may be valuable to get work in the profession, however membership in these professional bodies is not mandatory. The concern of the EAC is quality and accountability. EAC proposes that the WCB be required to establish policies that would assign limitations on unregulated health care practitioners.
The EAC supports section 36 and further proposes that subsections 36(1), (2) and (3) be included under section 117.
In reference to the labour market re-entry plan, membership of the EAC have described this as a black hole and just another name for vocational rehabilitation. It is our opinion that sections 40, 41 and 42 embody the integrity of the reform process and in order to achieve the desired outcomes all the major stakeholders must partner. It is our opinion that the board cannot have discretionary powers over whom it will consult with in the development of a labour market re-entry plan. Of further concern is the general vagueness, clarity and lack of consistency throughout these sections. These are outlined in our comprehensive brief.
The EAC supports the benefit reduction to 85% and concurs with the modified Friedland formula in regard to indexation. Bill 99 takes commendable steps to correct the unintended overcompensation problems within the current act, most notably the future economic loss awards. The removal of future economic loss awards is a welcomed change. It is our opinion that they were mismanaged from the beginning, with inconsistencies that often treated employers and workers unjustly. These awards were locked in for years and some workers ended up earning more than was anticipated at the time their FEL was calculated. In some cases these workers enjoyed a combination of earnings and benefits greater in total than their pre-injury earnings. Clearly this was not the purpose of the workers' compensation system, and the EAC endorses the right of the board to revisit the level of benefits being paid to a worker upon a material change in circumstances.
The EAC supports the establishment of a second injury and enhancement fund and a disaster fund to protect employers from events that are beyond their ability to either predict or financially manage. Section 95 of the bill is ambiguous on the particular issue of a second injury and enhancement fund. SIEF is synonymous with equity, and EAC proposes that the act specifically refer to the second injury and enhancement fund.
The EAC supports time limits for appeals.
EAC supports in principle the direction contained in Bill 99 for the WCB-WCAT relationship. It is our opinion that the WCB board of directors is responsible for running the Workers' Compensation Board and that it is essential to the successful running of the WCB that the board of directors make decisions with respect to policy.
While we agree that WCAT is bound by board policy, we are concerned that the employer and worker community may not have a mechanism available to request that the board of directors review a specific policy. The immediate problem that the stakeholder community faces is a lack of consultation with the Workers' Compensation Board.
It is the opinion of the EAC that WCAT's duty is to ensure fairness in the application of board policies. If there is doubt whether there is a board policy, then WCAT can request that WCB certify which policy applies in a particular appeal situation. If the WCB certifies that a policy exists, then WCAT will be bound to follow it in making its decision. If a matter is referred to WCAT and it is determined that there is no board policy, it is the position of the EAC that the tribunal should have every opportunity to decide the matter; however, the decision shall not stand as law unless it is specifically adopted as a board policy.
In the interests of time, we suggest that the members of this committee take the time to review the proposals contained in our provincial submission.
In conclusion, on behalf of the 1,700 members of the Employers' Advocacy Council, we commend this government for its vision and courage in reforming Ontario's workers' compensation system. We have carefully reviewed Bill 99 and what we see being reflected has been our philosophy since the beginning. We encourage the members of this committee to take the time to read our submission carefully, and if further clarification is required, we would be more than pleased to answer any questions.
The Chair: Thank you very much. We have about two minutes remaining for each caucus for questioning, so that's time for brief questions and answers. We'll begin with the government caucus.
Mr Bart Maves (Niagara Falls): Thank you for your presentation. There's been quite a bit of discussion about the return-to-work provisions and functional abilities forms. We heard from a kinesiologist yesterday that the functional abilities forms would be essential in an employee and employer having a safe return-to-work program. Do you share that opinion? Is it possible to have a return-to-work program without contact with an employee?
Mrs Helmka: Yes, we share that. In order to accommodate an injured worker, or any worker for that matter, who has maybe been out with even a non-work-related injury, it's very important that the employer be aware of that worker's abilities. I don't think you could have a successful return-to-work program if you didn't know what your workers were capable of doing.
Mr Maves: We had a discussion yesterday in Windsor about subsection 40(5). It that the board "may" contact the worker and the employer about their return to work, and some suggested it should say "shall" so that the board is involved in mediating. Also, subsections (6) and (7) talk about disputes. What role, in your view, should the board play in this return-to-work relationship?
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Mrs Helmka: Probably a role of support, in supporting both the injured worker and the employer to achieve the ultimate goal, which is to return them to the workplace.
Mr Maves: Are there times perhaps when the board being involved wouldn't be necessary -- for instance, a very short absence when the person goes back to their job right away -- or other times where they should indeed be involved?
Mrs Helmka: If an employer has a good return-to-work program and is proactive, I don't think there's any need for the board to participate. There may be other employers that are not as proactive and are dragging their feet a little bit, and that maybe the board needs to be involved there in encouraging.
Mr Patten: Good morning. Thank you for coming today. We heard from your sister organization yesterday in -- where were we yesterday? -- London, and I think in each community we've been to.
Yesterday, for example, the point about chronic occupational stress came up. What I'd like to ask you is, I gather you have some trouble with the identification of what you consider to be legitimate cases. Let's assume there is a legitimate case of chronic stress, or chronic pain rather. Do you feel it's important for the board to continue to work on finding ways to be more specific to authenticate cases, or do you feel it should be left out of the legislation completely?
Mrs Helmka: Are we talking stress or are we talking chronic pain?
Mr Patten: Actually, either one.
Mrs Helmka: We feel that the board needs to define what chronic pain is and include it in the definition section of the act and perhaps take a look at the Nova Scotia model, where there are some time restrictions, normal healing times etc.
Mr Patten: I've read it and it seems to me it's a contradiction. Chronic pain is something that is persistent. Normal healing time in a sense is an absurd concept because, as we've heard testimony here, it's abnormal pain. It's a disability that persists. As each person reacts to different circumstances, each person is of a different age, each person is of a different strength, people respond differently and therefore you can't categorize the whole thing and say, "All people will by six months be finished this particular injury."
Mrs Helmka: Then how can you categorize that chronic pain should be compensable? How do you know it's strictly arising out of and during the course of employment?
Mr Gilles Bisson (Cochrane South): How do you know it's not?
The Chair: Order, please, Mr Bisson.
Mr Patten: We had some suggestions yesterday by a couple of medical researchers. I grant that perhaps it has been difficult heretofore, but I suggest that more and more it's being demonstrated that it is clinically justifiable and that what we need to do is be far better at being able to identify medically and clinically the source and the nature of the particular pain and how it disables people. Anyway, I had one other -- do I have time?
The Chair: No. I'm sorry.
Mr Bisson: I'm most intrigued by your comments around WCAT and your suggestion that we should not allow WCAT to set board policy. I come from Timmins. Timmins is a mining community, pulp and paper area. There's a very large industrial base. Prior to my election in 1990 I was very involved in working to try to get justice for diseased miners who had contracted diseases from working underground, specifically lung cancer. What happens with these people is they die. This is not a joking matter. They just die. They go and work underground, they get diseased and they die. Often they leave families behind who don't have the economic means to be able to make ends meet. I can tell you story after story after story of mothers who had to raise families on their own with no assistance whatsoever.
In the end we won our fight with the Workers' Compensation Board to get lung cancer accepted as an industrial disease because WCAT had the ability to take a look at the issue from a scientific perspective and to make a decision and say, "Yes, there is a relationship between these people having worked underground and these people having contracted lung cancer."
I further suggest that if WCAT did not have the ability to do so, never in a dog's age would there have been any movement by the Workers' Compensation Board to accept lung cancer as an industrial disease, and all of these widows and some of the lucky survivors who haven't died yet would not be getting WCB benefits and their families would be without.
I want to have one question. I still have an ongoing relationship where I deal with the victims of the mining environment. I want to hear from you, because I'm going to go back and tell them: What do you want me to tell the widows who would not get WCB benefits as a result of your idea that we remove WCAT from making policy? What do you want me to tell the widows in Timmins?
Mrs Helmka: I don't think you understood what I said.
Mr Bisson: I understand very well. I fought this thing for five or six years, and I'll tell you, I will not stand back and watch you people railroad justice away from the victims of the mining environment in the city of Timmins. If I have to fight this thing, I will, let me tell you. I don't appreciate you saying you're going to take away justice from people who have been diseased because they only went to work in the morning and died because of their actions.
Mrs Helmka: What we said was that we agreed that WCAT should be bound by board policy, but if there is no board policy -- and come on, you know just as well as I do --
Mr Bisson: I know very well because these people died and we couldn't get justice. The only way we did is when WCAT was able to set policy when the board was unwilling to do so. That's how it works.
The Chair: Mr Bisson, kindly let the witness answer the question.
Mrs Helmka: You also know that WCAT can look at the real merits and justice of the case as well.
Mr Bisson: And if you don't have the policy, they can't rule in favour of the victim. That's the point. You have no idea. What am I going to tell the widows in Timmins? I want to know.
The Chair: Mr Bisson, do you want the witness to answer the question or not?
Mr Bisson: Yes. What am I going to tell the widows?
The Chair: Then please allow the time to answer the question.
Mr Bisson: I want to know what I'm going to tell the widows.
Mrs Helmka: It is the position of the Employers' Advocacy Council that the board --
Mr Bisson: We know the position of the employers: They wouldn't pay. They kept on barring justice from these people. What do I tell the widows?
The Chair: Thank you. We're going to conclude this presentation. Thank you very much for taking the time to come before us this morning with your advice. We appreciate it.
INJURED WORKERS GROUP OF BRANT COUNTY
The Chair: I'm now calling presenters representing the Injured Workers Group of Brant County.
Interjection: Perhaps, Madam Chair, we could get more chairs so the injured workers could sit down.
The Chair: Sorry. There have been more chairs ordered.
Good morning and welcome. If you would introduce yourself, please, for Hansard, you have 20 minutes in which to make a presentation.
Mr Ian Aitken: Good morning, Madam Chair. My name is Ian Aitken. I'm a lawyer at the Brant County Community Legal Clinic. I'm here on behalf of the Injured Workers Group of Brant County, based in Brantford, to present some of their concerns regarding Bill 99 based on our experience at the clinic and on their experience. I will comment briefly on three areas that they are particularly concerned with: de-indexation of benefits, return-to-work provisions under the bill, and the general appeal process and WCAT.
I don't think it should be a shock to anyone that injuries in the workplace cost money. There have to be benefits for workers while they recover, and vocational assistance to ensure they return to appropriate and sustainable work. Bill 99, in our view, will remove existing protections and force injured workers to make enormous sacrifices. The proper approach to reducing compensation costs is to reduce accidents and improve return-to-work opportunities and vocational rehabilitation. Instead, this bill reduces benefits and will increase the numbers of injured workers inappropriately forced off workers' compensation benefits.
The first concern is de-indexation. The bill is going to reduce cost-of-living adjustments to the majority of injured workers, including pre-Bill 99 workers. It is grossly unjust, in our view, to de-index existing benefits to permanently disabled workers, many of whom the board has agreed cannot return to work or cannot restore their pre-accident earnings.
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Return-to-work provisions are probably the most important issue to the majority of injured workers in our experience. In our view, one of the most disastrous proposals in the bill is the removal of vocational rehabilitation services. Although we will admit, having dealt with VR departments and case workers, it's not a perfect process, in our experience case workers and workers' compensation vocational rehabilitation have provided some protection during returns to work. With temporary benefits and vocational rehabilitation services eliminated, workers are going to be cut off benefits on the basis of work that is not suitable or even available even when the worker is involved in a medical rehabilitation program. If that seems unfair or inconceivable, it's happening now. We have a number of workers in our experience, whom we're dealing with and representing, who have been cut off benefits while they're involved in a medical rehabilitation program, and they have been cut off benefits on the basis of some illusionary work that even the employer agrees is not available.
What we're going to see more often are two outcomes. One of them will be that an employer will offer modified work to an employee and the worker will be cut off even while in a treatment program when the job is not suitable. Also, injured workers will be cut off benefits by the board even when a job is not available.
Let me give you an example. A client who was injured and received conservative treatment for six months was assessed at a regional evaluation centre which recommended that he enter a chronic pain management program and be assisted in returning to alternative different employment. At that point, the adjudicator determined that he was fit for the essential duties of his pre-accident employment and cut him off benefits and refused to provide him with vocational rehabilitation assistance on the basis that there was a job available and that he was able to go back to it. The employer confirmed that there was no job available, modified or otherwise.
At the same time, the board recommended and placed this worker in a chronic pain management program but refused to provide him with any assistance; they simply paid for the program. The adjudicator was not able to tell me how this worker could earn his pre-accident wages at a job that didn't exist while he was attending the pain management program on a full-time basis. This injured worker has been receiving welfare assistance for approximately nine months.
As I mentioned, several of our clinic's clients have been placed in this impossible situation. The important thing to remember is that injured workers do not disappear when they are wrongfully cut off workers' compensation. They're forced on to welfare, EIC, Canada pension plan disability. Their lives and the lives of their families are often irreparably damaged.
From our recent experience, the culture shift at the Workers' Compensation Board that Glen Wright has talked about is essentially a shift away from the basic principles of workers' compensation.
We have very clear concerns about the appeal system, the limitation periods and particularly the requirement that WCAT follow board policy. It seems clear that the limitation periods, particularly the 30-day limitation periods with respect to return to work, are going to increase litigation and appeals and will increase the pressure on an already backlogged appeal system. In particular, the requirement that WCAT follow board policy will remove WCAT's independence and destroy the credibility of the entire appeals system.
In the example I gave you earlier where the worker was cut off benefits, the board is following a board policy -- I haven't been able to find it, but some board policy. The remedy is to go to WCAT and ask WCAT to follow the act in this worker's situation. If WCAT no longer is able to do that and has to follow board policy, there's no remedy for this injured worker within the system. We'll have to go outside the system into judicial review, and that's going to increase costs and uncertainty of the system for all of the stakeholders.
In summary, Bill 99 disregards the contribution that injured workers have made to the economy of this province and will severely limit the opportunities for those same workers to continue to contribute. In our view, Bill 99 will doom another generation of injured workers to poverty and despair.
Mr Pat Hoy (Essex-Kent): Good morning and thank you for your presentation. We have heard during the hearings that most, if not all, employees would rather not be on workers' compensation and find it difficult to deal with; 100% of them would rather be working.
In your description of the particular case you were talking about where the person was on welfare for nine months, is this an aid to his or her mental state, to go from WCB to welfare?
Mr Aitken: It doesn't help his mental state; it doesn't help his physical rehabilitation. The constant concern and the constant lament of injured workers in our experience is: "Get me back to work. Give me a job where I can earn a decent wage, where I can contribute again."
I am always astounded. I have been, in my experience, in the unfortunate situation where workers have worked for 15 or 20 years for an employer, they don't miss time, they contribute, and then they become injured. In an instant they go from a productive, valuable employee to some sort of fraud artist who is trying to rip off the system. They just want to go back to work. Injured workers just want to get back to safe work so that they can contribute.
Mr Hoy: Believe me, I anticipated that your answer would be that people are not looking forward to moving on to the welfare system, particularly in light of the fact that welfare has been cut by 22%.
You talked about imagined employment in your presentation, and then you talked about imagined board policy. In this particular case you were talking about how you couldn't find any policy that had the client you were talking about not receiving benefits. This to me is extraordinary, that we have two imagined possibilities here: the imagined possibility of potential work and imagined board policy. It seems to me quite clearly that we have great difficulty in this case and others that would be similar. I find this extraordinary, and certainly your presentation will help us to improve workers' compensation. Clearly Bill 99, in your opinion, is not going to improve it in that regard.
Mr Aitken: Absolutely not. As lawyers, when a decision is made, we appeal it. That's what we're doing in that particular case and in other cases. But as an individual, I have concerns about the entire system, and with the changes that are proposed in this bill, particularly about return to work, I think we're going to see more and more of these instances.
Again, there has always been an understanding, I think, with all stakeholders, employer reps and injured workers' reps, that you can go to WCAT. Without that safety valve there the entire system is going to lose credibility, and that was one of the points I wanted to illustrate.
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Mr Hoy: In regard to the de-indexing of benefits, do you know of anyone in the country who can adequately predict what the inflation rate might be two years from now, six months from now, 10 years from now?
Mr Aitken: I'm not aware of anyone, no.
Mr Hoy: What I'm leading to here is that the possibility exists where inflation may become very much higher than it is today. Our inflation rates in the country are very low, so by de-indexing, would we not be putting injured workers in jeopardy, potentially, in the future?
Mr Aitken: Regardless of the inflation rate, some of the statistics I have seen, even with a 4% inflation rate over the next 17 years, show there's going to be a drastic reduction in the ability of injured workers to continue to live, a reduction of I believe 51% of their earning power. Whether there's a huge increase or just minimal inflation, this de-indexation is going to take a lot of money out of the pockets of injured workers and it's going to drastically affect their standard of living. These are people who the board has accepted are disabled. They are given benefits that in our view are just sufficient, or not sufficient, and yet we're going to see further de-indexation. These people, many of them, just can't go back to work, and that's been accepted by the board, so they're essentially defenceless. They can't go out and get another job. That's our concern.
Mr Christopherson: Thank you very much for your presentation. We've heard from other lawyers representing injured workers that the net effect of all the changes the government is making will indeed show down the road that statistically there are fewer injured workers. But the reality is that there will not only be just as many injured workers but more of them. They just won't be inside the WCB system. Would you agree with those other lawyers who have made those submissions, and if so, why?
Mr Aitken: Based on our experience and looking at the potential effects of these amendments, I think that's a likely outcome. What will happen is that workers who are injured on the job will be enticed not to report the injury to the board. In some cases that might work out, if it's a very minor injury, and they'll be able to return to work and everything will work out. Our concern is, following up the rest of your question, that will reduce the actual numbers of reported accidents, and I think that will be an illusory gain. The conclusion that this means there are fewer workplace accidents will probably not be correct.
Our concern is, and this was a discussion I had last evening with the injured workers' group I'm involved with, what happens if you get injured at work and you're enticed not to report it and then six or seven months later that injury that was not reported crops up again or becomes more serious for whatever reason? What do you do then? Some of these workers asked me, as a lawyer, and I said: "I think you're in a lot of trouble because the six-month limitation period, which we expect will be much more strictly enforced, will probably prevent you from getting any compensation for that injury. You may be out of luck."
Mr Christopherson: I would suggest to you -- and I don't know how comfortable you are saying this, but I am -- that this is all by design. The government knows very well what it's doing in terms of taking the $15 billion away from injured workers and giving $6 billion of it back to their corporate friends. But in addition, by making these other changes with the WCAT -- the time limits, those injuries that will no longer be compensable -- at the end of the day this government is going to run around in a couple of years saying, "See, we've made the workplace much safer because there are fewer injuries," and they're going to offer up those numbers. The reality is that because the penalties are not as strong and employers are not on the hook as much as they were before, there's an incentive for them to do exactly what you're suggesting, and at the end of the day there will be more injuries because our workplaces are going to be more dangerous, not less dangerous.
Mr R. Gary Stewart (Peterborough): Thank you, sir, for your presentation. I have just a couple of questions. I assume that your client base is all WCB workers whom you're involved with?
Mr Aitken: The majority of my work is, yes.
Mr Stewart: How long does it take the average claim to be looked into and clarified and come to fruition? Any idea how long?
Mr Aitken: The average claim?
Mr Stewart: Yes.
Mr Aitken: I would have difficulty speaking about the average claim. The people who end up coming to our clinic with workers' compensation matters often have already had a number of months without benefit.
Mr Stewart: In other words, the system is not working now is what I'm trying to suggest, and it hasn't worked for a long time.
Mr Aitken: I would agree that the system is far from perfect.
Mr Stewart: The other thing you said at the start was that the two keys to change were prevention and return to work. I assume you would agree with that?
Mr Aitken: Yes.
Mr Stewart: That's the priority and we believe that's the priority of this government as well. You made a comment that the particular client you had was cut off during the return-to-work phase and the labour market re-entry etc. I would say there are a lot of times when we have presenters and we don't get any recommendations, it's just, "No." But if you say no -- anybody can say no -- let's make some good, concrete recommendations and amendments might come out of that. What amendments would you suggest to clarify that injured workers will continue to get their full earnings during these particular phases? What types of amendments or recommendations would you suggest?
Mr Aitken: I think the current act is again far from perfect. The problem, and my particular concern and the concern of my constituents, is return to work. The important thing is to have the Workers' Compensation Board intervene and be required to intervene in return to work. That is the most important thing that should be in the act in terms of return to work.
As I said, it's far from perfect now, and anyone involved in the system will agree with that. But I remember reading the Cam Jackson report, and there is a statistic used in that report indicating that vocational rehabilitation services aren't working because only 50% of injured workers with permanent impairments return to work. But to me the reality is that that is an argument for more and more intervention through vocational rehabilitation services; that's not an argument to rip it out of the system, which is what we see happening here.
The argument that there are going to be better return-to-work outcomes by taking away vocational rehabilitation services is, in my mind, logically like saying, "We have many police officers in our community, and if we get rid of them maybe crime will go down." It just doesn't make any sense.
Mr Stewart: I think that's why we're concentrating on prevention. That's the priority and I think it has to be.
Interruption.
Mr Stewart: They can laugh all they want, but it happens to be a fact: We've got to prevent it before.
Mr Christopherson: Where is it in the bill?
Mr Aitken: I haven't seen --
The Chair: Sir, time has elapsed. I must interrupt; I'm sorry. We must call our next presenter to come forward.
Mr Aitken: I haven't seen anything in this bill and I haven't seen anything from this government that deals with prevention of workplace accidents. Show it to me.
The Chair: Mr Aitken, thank you very much for coming before the committee today. We appreciate it.
0950
WATERLOO REGIONAL LABOUR COUNCIL
The Chair: I'd like to call representatives from the Waterloo Regional Labour Council, please. Good morning. Would you please introduce yourself and your guest for Hansard.
Mr John Cunningham: Good morning. My name is John Cunningham. My guest is my daughter, Jessica Cunningham.
Thank you for the opportunity to speak one last time on any bill, and on this occasion Bill 99, the bill of death. I invite questions when I am done, but please resist political statements as you have your own TV channel for that purpose.
Ontario's people are unaware that within days the Legislature will sit again. The Conservative introduction of changes to standing orders and "We've got a majority, so pound salt" attitude at August's close will outlaw official opposition and public input. The government will move to open public sector contracts, decide on ownership and membership in bargaining units and ram standing orders through, to name a few. This is not about unions, this is about basic rights and freedoms. This is one more coffin nail in democracy from a government that openly hates its own people.
Each Conservative bill has its devastating and destabilizing effect, and I come to forewarn of the lasting and monumental damage this Bill 99 brings to injured workers.
So what is left, or should I say right, if we can't present our dissent, our petitions are ignored and demonstrations are seen as either unsightly or amusing? Conservative-appointed ombudsmen and watchdogs are decrying the boondoggles and enforced anarchy of their own government. Will the police in Ontario, in this growing pressure-cooker, be forced to act on dissent? Dissent then becomes civil disobedience, with hardworking, respectable people, in desperation over loss of rights, deemed as criminals.
Business people who are standing up and cheering should remember that governments are not forever, and this government will find itself on the opposite side of the House, probably without official party status, wailing away about how unfair things are. How will you react if bills are forced through and you are not heard?
This bill, we are told, will make Ontario the safest place on earth, statistically. The reality is similar to the unemployment figures which don't count in people who stop looking out of frustration or who live over heating ducts in the winter. In the end, you will still have larger numbers of unemployed than you statistically present. With this bill, you will have fewer reported accidents but more dishonoured, disabled, disillusioned unemployed who are injured.
Conservatives say this bill will simplify the act, and after 17 months of writing by young academic assistants with no work experience, the opposite is true. The bill is supposed to be plainspeak versus legalspeak. The existing act has 151 sections and Bill 99 has 178 sections, with 27 new sections with no regulations written yet. The legal challenges on the new language for all parties, including business, will be astronomical -- simplified, my foot.
I'm employed, with 1,100 others, at a tire manufacturing facility in Kitchener. My employer is very forward-thinking on most subjects of health and safety; they are backward on the subject of return-to-work, where we have tried unsuccessfully to negotiate joint return-to-work programs for more than a decade.
The Canadian Rubber/Plastics Industry Council health and safety committee has toured countless factories over the years and we have seen dramatic proof and despicable conditions proving that the majority of employers do not take safety to heart.
The year 1914 brought the historic compromise of no-fault compensation. Compensation was to replace a worker's wage when a accident or work-related disease befell a worker. Companies in return would not be held liable. Now ignoring that compromise, the government will insure us in case of an accident, not compensate us. "Compensate" is to make as whole as possible, or to quote the dictionary, "to recompense as equivalent for loss, injury, suffering etc."
The replacement of fair compensation and rehabilitation services by recovery and return to work is abhorrent. Bill 99's preamble to promote, educate, rain and foster commitment to health and safety shows that compensation is not a priority or commitment of the board. Under the Conservatives, injured people will be considered unsightly and the only concern is to rebate employers for transparent, flashy safety programs.
The point is that the only general mandated safety education in Ontario is WMHIS training. If you give workers continuing education and mandate joint health and safety committees, they will make Ontario the safest place in the world to work. Not all the bureaucrats or business mangers in the world can do that.
There is no representation from labour on the board of directors to champion those functions anyway. You can guarantee that non-experts from business, via the trough, will tell workers all they cannot begin to know -- statistically yes, but they don't have floor-level work experience.
In section 10, the board continues to refuse coverage to 700,000 currently uncovered workers who, if added, would help bear the cost as in British Columbia and dramatically reduce the premiums of those already paying. Those businesses now paying should insist on coverage for all, out of fairness and lower cost.
Section 12 retains the presumption that accidents arising out of employment are compensable, but in future, workers have a six-month deadline to file. Most diseases and many injuries are ignored by workers who try to work through the pain, or the original disease symptoms go away very quickly, only to return years later. Those injuries will not be recognized by Bill 99.
Section 13 excludes benefits for chronic pain except for levels of normal healing times. Mental stress and chronic pain will be a challenge of the charter on the basis of discrimination against workers.
Section 21 requires workers to file and copy employers, where it was mandatory for employers to file and copy the workers. In many cases a worker may be diagnosed with a disease, but only months or years later understand that the disease was due to the nature of the employment. Previously, failure to file was not to a bar benefits, unlike the proposed "shall not provide benefits" today.
The employer abuse will be monumental: 24% of Canadians do not read or write at a grade 9 proficiency level. My experience is that people are terrified of the prospect of filling out any government form. Is the form to be printed in the 14 most common, major languages of the workplace today?
The worker's physician is now compelled, with the worker's forced consent, to supply medical information to the employer on the supposition that this information will help the employer be supportive in returning the worker to the job. The reality is that most employers will use any means at their disposal to return the worker to any job, and the floor line supervisor has no training, nor any concern, other than getting the product out. The result is further injury in a majority of cases.
I speak in unionized terms and we know that the unorganized, who are in the majority, will suffer from greater indignities and unrealized claim compensation from bad employers.
Section 34 demands that workers cooperate in health care measures which the board considers appropriate or lose full benefits. Can you imagine being told that you must have a lower back operation that has a 50% chance at failure, and even if successful will result in 30% less range of motion, or you could suffer from chronic pain, which will be disallowed, and retain a fuller range of motion as your choice? What would you do? At any rate it is my body, and any board or government has no right to make that determination for me.
Sections 36 and 37 force workers to a medical examination on the employer's demand. Could workers without representation object effectively? Everyone knows they could not. Physicians will be forced to hand over information without the worker's consent.
Section 40 encourages return to work over prevention. If workers break down or reinjure or suffer other injuries while trying to guard the original injury, you will gain nothing but a great and delayed cost. Our workers are already too familiar with those friendly psychological phone calls with a subliminal message whose only purpose is to return you to work regardless of your medical or mental state. This disregards the worker's physician's directives and ignores the meaning of disability.
We are coming to the time when the logic of quick return becomes an administrative fast-track of return that stretches every sound medical rationale. At some point the worker is left by white-collars types and medical types to be placed in the hands of floor line supervision with no experience with medical restrictions. The most common thing that will be heard is, "I know you're hurting, but could you just do that?"
With doctors only receiving four hours of training in occupational medicine, what knowledge could supervisors have, or can we track the damage they'll do? Only mandated joint return to work, with the input of the worker's physician, has even a chance of succeeding.
Subsection 40(6) now involves the board in return-to-work disputes but leaves the non-unionized worker out in the cold. The free hand this gives to employers through punitive return-to-work programs will force many out the door, into unemployment and eventually welfare.
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In section 42 the labour market re-entry may be based on pre-accident earnings, and the good of the worker will not be recognized, nor his needs. More workers will be forced to cooperate in plans that will see thousands of workers deemed as parking lot attendants, regardless of their potential, drive, needs or feelings. Again, labour market re-entries are not meant to be motivational, only the cheapest Band-Aid remedy for today while ignoring tomorrow.
There is no mention of appeal or ability to renegotiate labour market re-entry. Old programs were designed to encourage the injured workers to be involved in their own future. While cost and expediency are always part of the decision, forcing people into job plans or medical operations is clearly the wrong direction in healing mind and body of their individual degrees of illness or injury. This bill is about money, not about compensation or reasonable compromise between the workplace parties.
In section 43 there is a direct loss of monetary benefit, 5%, to the injured worker. Looking through 19 pages of analysis of Bill 99 from the Office of the Employer Adviser did not show one single additional cost to the employer, only one mention of larger litigation.
In section 44 the worker was reviewed every two years. Now the demand will be every year for six years, with the obligation to report material change in that six years or face having your benefits cut off. What's a material change? Only your regulation writer knows, and they haven't written it yet. With the fraud provisions of Bill 99, the possibility of perpetual review is starkly present.
Section 45: Before the bill, 10% of every FEL award was set aside for purposes of pension. This government will cut this to 5%. These funds were for a time of life that is most vulnerable. Bill 99 is not about compensation. This is about poor insurance. This is a cheap, demeaning grab from the injured workers. This is theft, and you are bounders and rounders and a lot of dirty things.
You have left a provision for unionized to negotiate with the employer for top-up, leaving non-union workers out in the cold. Don't bother at the end of this brief to tell me the crimes of some past government. Stand and deliver on the effect of your own policies.
Section 48: Here comes the only compliment. The inclusion of bereavement counselling for the surviving spouse is a welcome addition and should include a timely explanation of benefits and time limits.
Section 49 contains a poorer indexing formula. This is not the meaning of compensation, when your benefits continually shrink.
In Bill 99, the templates of best practice have been removed while still reinforcing the experience/merit-rating programs. The regulation is not written and the giveaway continues. You have taken away 5% of the injured worker's temporary accident benefit, 5% of their FEL award for pension, reduced the indexing and slashed vocational rehabilitation to a "deemed" plan of smoke and mirrors. What did employers pay towards the big lie, the supposed unfunded liability?
The Conservatives are going to wipe out the unfunded liability, never to be seen again, right? Wrong. Subsection 93(2) states:
"Sufficiency of fund
"The board has a duty to maintain the insurance fund so that it is sufficient to make the required payments under the insurance plan as they become due."
There will continue to be an unfunded liability that you can fund when you need to pay it out. The Conservatives have skilfully used deception to appeal to that "Take a two by four and whack yourself in the head because it's good for you" mentality.
For the last time, the unfunded liability is a big lie to cement up the bill of death.
Section 114, the requirement of workplace parties to file a written notice of objection within 30 days on return-to-work and labour market re-entry plans is not reasonable for either party when all other appeals are six months. It's something like receiving notice to write this comprehensive brief in less than 11 days, interspersed with my normal duties and after my workday is done.
Section 123 offers mediation services where the board considers appropriate. Considering that the government has laid off all labour board mediators, this is inconsistent, and while somewhat desirable for the organized, it is very much another horror for the unrepresented.
Under section 171, the office of the worker adviser and the Office of the Employer Adviser will continue. The government reached out to say that the OWA could not represent unionized members but allowed the Office of the Employer Adviser to represent employers with a workforce of less than 100 with the added words of "primarily." Very few unionized workers have been represented by the OWA. In fairness, if the employer is a member of a trade or commerce agent, association or organization, the same restriction should apply. Employers then should not be represented. Are there no savings to be realized from employers, only workers?
We have seen the federal government moving to the privatization of food and drug testing, and now your government will disband the Occupational Disease Panel. We believe that business views this worldwide recognized authority as far too effective. This follows your government's aim far too successfully. By recognition of disease, you can then prevent disease.
With Bill 15 and Bill 99 restructuring and renaming and privatizing the board, you must be done the job, right? Wrong. The future holds reviews of funding, new methods of payment by employers, better, richer experience-rating programs, transition and new regulations from the old act to the massive new act and, oh, yes, who and what workforces are covered by the act. We are sure that the "ram it through in four days provision" will come in real handy.
To the horror of all Ontarians, we find that according to the statistics released by the companies themselves, Ontario is the third-largest polluter in North America, next to Tennessee and Texas. In light of this news, the Conservative government is stripping environmental and employment standards and health and safety laws, raping health care, and merging whole communities with little input, ignoring history and civility and bastardizing the word and meaning of compensation to injured workers.
History will not record this as the golden age of enlightenment. Explain to my family that what you do is for the good of humanity and not your wallet. If this is indeed your revolution, make no mistake: Social conscience will return from its holiday. The Ontario that I remember cares about its own people. Your children may hide in shame and denounce you, and you, like Brian Mulroney, will be outcasts in your own country, all in the name of money.
Bill 99 reviewers reserved interpretation on the ongoing basis, because of the change to supposed plain speak, on the interpretation of the legislation and future policy when regulations are finally added. This means huge legal costs to all. Governments are in business to govern, not to be a business club. Many laws took decades to refine and are in place to protect the public from very real conditions, such as the greed and the uncaring attitude of others. Govern or get out of the House.
Ontario, we mourn for thee. Thank you, and thank you to Joyce Cruickshank, John Sweeney and my union.
The Chair: Thank you very much. There's time only for questions from one caucus, and it will be from the NDP.
Mr Christopherson: John, what a fantastic presentation. I think you've done a real service to the people you represent here today in terms of the outline you've done of Bill 99. I could stand in the House and deliver this speech and feel real good about it. I love barn-burner speeches. You did a great job.
The only thing I can think to possibly add is that if anyone doubts whether or not John is speaking the truth, just take a look at the fact that the Minister of Labour consistently stands up and says they want to be fair. They always want to be fair, fair, fair. Yet "fair" is the word they took out of the new Ontario Labour Relations Act and "fair" is the word they took out of the WCB Act, their new bill. They took the word "fair" out.
John, I can't think of a question to ask you except maybe give you a last 30 seconds to wrap up if you want, but I want to tell you, you did a great job here today and I agree with every single word you said. Thank you so much for coming out today.
Mr Cunningham: The message I would give from my corner, which is organized labour, and for any workplace, and I deliver it to Mr Maves -- I see he's sitting there; good day to you -- is that if you do not have mandated powers on either side, whatever government sits, it's a pipe dream. You're only presenting your own opinion. It has to be mandated powers.
Again, if you do not educate through worker-designed training, it's a sham and a farce. Please return to that. Stop the short budgetary leashes that you have on the clinics and on the training delivery organizations. Stop that. Give them a future. Recognize the job they do. Don't disdain them. Let's get on with the job of being safe in Ontario
1010
ONTARIO PHYSIOTHERAPY ASSOCIATION
The Chair: Our next presenters are representatives of the Ontario Physiotherapy Association. Good morning and welcome. If you would be so kind as to introduce yourselves for the Hansard record.
Mrs Gloria Schmuck: I am Gloria Schmuck. I am director of Link With Work in Kitchener. Link With Work is approved by the WCB as a regional evaluation centre and community clinic. A majority of our patients are injured workers whom we assess or treat through the WCB or on a direct employer-pay basis.
With me is Dorothy Borovich. Dorothy is the owner of Burlington Rehab Services. Of the patients treated at Dorothy's clinic, approximately 75% are motor vehicle accident victims and individuals covered through their individual insurance plans; the remainder are WCB clients in the community clinic program. Dorothy is one of those physiotherapists who no longer treat WCB clients in the regular WCB program, for reasons described in our submission and in our remarks that follow. Dorothy is in a particularly good position to compare and contrast the WCB and motor vehicle accident systems and is here today to help me respond to any questions you might have.
Last month we provided to the committee clerk copies of our formal submission on Bill 99. We are not going to repeat that submission. Instead we'd like to summarize the main points and leave as much time for questions as possible. For ease of reference, our recommendations are listed in pages 17 through 20 of our submission.
As we stated in our submission, physiotherapy is the principal rehabilitation profession for injured workers in Ontario, second only to medicine. Last year we assessed and treated approximately 53,000 WCB clients in either the regular program or the community clinic program, yet every year more and more physiotherapists are refusing to treat WCB clients. The reasons for this situation spring from the way in which the WCB operates and deals with injured workers and their employers, and with treating health care practitioners. We recognize that legislation itself cannot change organizational behaviour, but we're very concerned not only that Bill 99 misses an opportunity to influence the WCB's behaviour but that Bill 99 may perpetuate or entrench past behaviour that has brought us to this situation.
The WCB is a monopoly, and acts like one. It dictates the fees that it will pay for treatments. It often overrules treating practitioners on the type or extent of treatment required to get an injured worker back to work. It is slow paying its bills to treating practitioners. It actively discourages communication among the treating practitioners and the employer that should actually be encouraged to expedite the injured worker's recovery and return to work, or at least return to modified work.
In our submission we have suggested you compare and contrast Bill 99 with legislation passed last year applying to the motor vehicle accident or MVA sector, Bill 59. Bill 59 seeks to regulate MVA insurers who function in a competitive market. The bill before you today relates not to a competitive market situation but to a monopoly. Yet Bill 59 provides more checks and balances to ensure fairness and equity in the treatment of motor vehicle accident victims than Bill 99 provides to injured workers. We ask why. Why does the government of Ontario think it more necessary to intervene in the private, competitive marketplace in the MVA sector than to put in place effective checks and balances to ensure that a monopoly, the WCB, handles injured workers fairly?
We also urge you to examine Bill 99 in the context of the privatization of some or many of the activities of the WCB. If, for example, case management is privatized by the WCB, is it right and proper to give private operators the power to dictate the level and type of care or to dictate the fees they would pay?
Our largest bone of contention with the WCB relates to subsection 50(l) of the current Workers' Compensation Act or subsection 33(l) of Bill 99. The two sections are essentially the same. I ask you to read subsections 50(l) and 33(l) and ask what they mean to you. What does it mean when section 33(l) says that the injured worker is entitled to make the initial choice of health professional? To us it means that if a worker is injured, that worker has the right to decide whether he goes first to his family doctor, his chiropractor, his physiotherapist or to another practitioner of his or her choice.
But that's not the way the WCB interprets either current section 50(l) or Bill 99's section 33(l). WCB policy says to the injured worker: "No. You may only go to a doctor or chiropractor in the first instance. If you wish to see a physiotherapist or another health care practitioner, you must get a doctor's or chiropractor's referral." If you've injured your back and choose to go straight to your physiotherapist, as subsection 50(l) appears to allow you to do, the WCB will refuse to pay for your treatment.
Aside from the legalities, the WCB policy makes no sense if the objective is to return the injured worker to work as quickly and effectively as possible. The requirement for a physician referral delays physiotherapy treatment by an average of about 20 days. By the time an injured worker gets to us, the injury is often already chronic.
The Rover group in Louthbridge, Birmingham, England, performed a study on the treatment processes for their injured workers. The results were published in the most recent edition of the British Journal of Rheumatology. We have a copy of the article with us if you'd like to review it. At the Rover plant, musculoskeletal problems are the largest type of injury or complaint in the workforce -- the workforce, by the way, numbering 17,500. The study found that quick referral to physiotherapy -- by "quick" they could mean within 24 hours -- usually led to faster and more complete recovery and return to work than for those who had been told by their doctors to follow a more passive course, usually bed rest.
Rover set up what they called a proactive physiotherapy clinic for their injured workers. To break even, the physiotherapy clinic would have had to reduce lost workdays by 2,000. In fact, it reduced lost workdays by 6,000 in one year, which generated total savings for Rover in lost time and treatment of about _200,000.
The WCB's current policy -- and we fear its policy under Bill 99 -- will not allow early, active intervention of this type.
We ask this committee to examine subsection 33(l) carefully. If your understanding of what 33(l) means is the same as ours, we urge you to admonish the WCB to respect the law and allow the injured worker to access the health practitioner of his or her choice in the first instance.
We also ask you to carefully examine the powers that Bill 99 would give to the WCB. We urge you not to give the WCB the power to impose fee schedules on health care practitioners, as subsection 33(4) does. The WCB has historically used this power to keep fees low. Currently, the WCB pays physiotherapists in the regular program $12.20. That is $12.20 for treatment that often takes between 30 and 60 minutes and includes assessments, as well as preparing reports to the WCB and the referring practitioners.
1020
Physiotherapists who continue to treat WCB patients are able to do so only if they have a substantial non-WCB client base, where under current practice fees for analogous treatments are in the $40 to $140 range. This allows them to cross-subsidize the WCB patient. We feel this situation can be corrected only if the WCB fee schedule is negotiated and subject to the forces of competition in the market.
As we say in our submission, we have a serious problem as a profession with WCB receivables. Our receivables experience is summarized on pages 9 and 10 of our submission. You'll see that 17% of our receivables either go unpaid or are clawed back by the WCB. We ask those of you here who are business people, how long could your business last with a 17% bad debt write-off?
Currently the WCB refuses to pay for treatment or will claw back payments for treatment given in good faith when the worker's claim is denied or abandoned. We think it wrong that the treating practitioner be left out of pocket and propose amendments to subsections 33(6) and 33(7) that would allow us to obtain payment from the patient directly in such circumstances.
You'll see that 80% of the bills that are paid by the WCB are paid after 60 days. We urge this committee to propose an amendment to section 33 to encourage the WCB to pay its bills on time. I might add that our receivables survey was done two years ago, but anecdotal evidence suggests that, if anything, the situation has become worse since then.
We find it remarkable that part V of Bill 99 largely overlooks the role of the treating practitioner in return to work and we urge this committee to endorse a new section in part V that corrects this oversight. You'll find our recommendations on page 20 of our submission.
This very briefly summarizes our position and our recommendations. If you have not already done so, we urge you to read our submission. Madam Chairman, we welcome your committee's comments and we thank you for the opportunity of appearing here this morning.
The Chair: Thank you very much. Colleagues, just so you know, that brief has been mailed to your offices so you will have it. The clerk would like to get the copy from you of that one report you mention, and it'll be distributed as well.
We have about two minutes per caucus for questions and we'll begin with the third party.
Mr Bisson: I have a couple of comments and a question: I'm a former business owner, and when you talk about receivables taking time to be paid by the WCB, I can tell you that in dealing with any large organization, a private sector company or government, it's very difficult to get bills paid on time. I had outstandings, when I was in business, by major employers that were slower than the government in some cases. I think that's a function of large companies, large entities, not just the WCB.
The other comment I want to make before I get to the question is that there's an assertion in your presentation that people who were injured in a motor vehicle seem to get treated better or there's a more efficient way of treating the injuries, because it's the private insurance companies. As a sitting member I have scads of claims of people in my constituency who never got any justice from motor vehicle accident companies and have no way of getting access to justice because there's really no good system to appeal the decision, such as you have in the Workers' Compensation Board. So I don't accept that that is any better. I think it's probably worse.
Now to the question: You talk about the ability for workers to choose the appropriate type of treatment. I agree with you. I'm a former injured worker. I have a back problem and I find chiropractors can't help me. What helps me is massage therapy. I agree with you and I think we need to look at that. We need to take a look at making sure that appropriate treatment can be given to the worker if that's what he or she thinks is better and can be backed up by medical advice as well.
I have a question for you in that regard. The government is saying to you directly as a physiotherapist that it's going to put a six-month time limitation, that if you don't file your claim within six months you're not going to get workers' compensation. Is that, in your view, going to exclude a number of workers from ever getting compensation? I know in my office I get a lot of people who work with an injury which gets progressively worse and finally they end up in your lap six, 12, 16 months later. Will that limitation exclude the possibility of getting benefits for injured workers?
Ms Dorothy Borovich: If I may respond to your first position regarding the accounts receivable, in our clinic we treat 75% who are covered through their extended health care, as well as our motor vehicle accidents, which are covered through insurance companies. The payments are received within three to four weeks, and these are usually larger companies. So definitely there is a difference in compensating for the treatments. In regard to our accounts receivables, as Gloria said, it's approximately 60 to 90 days for WCB. There is a big difference despite insurance companies also being large corporations.
In regard to situations where there are disputes -- again I come to the comparison with motor vehicle accidents -- if there is a dispute regarding treatment, regarding resolution of return to work, there is a system in place with the designated assessment centres which seems to --
Mr Bisson: But you know how friendly that is to the worker.
Ms Borovich: Absolutely, but there is a position there; with the WCB there isn't. Let me give you an example. With the regional evaluation centres, which are set up with the WCB, I'll give you an example which has worked in the opposite direction where I have recommended no further treatment. The reason for not recommending further treatment was that I did not feel it was appropriate; it would not benefit that patient. I made those recommendations. It went to the REC and it was overruled. The person continued on treatment for four weeks with no changes subsequent to the four weeks.
Mr Bisson: The question about the six-month limitation.
Mrs Schmuck: The six-month limitation, as far as affecting compensation, we as treating practitioners aren't influencing that. That's a WCB decision. But as far as affecting the outcome, if somebody is seeking intervention six months after the onset, yes, definitely. Treatment needs to happen early and that's why we gave the example of the Rover plant in England. The earlier the treatment the better. Some of that may be just advice as to how to help that person self-manage, but definitely early intervention is really important.
Mr John O'Toole (Durham East): Thank you very much for your presentation this morning. I very much appreciate it. We've heard from medical doctors and from chiropractors, kinesiologists, ergonomists, physiotherapists, massage therapists. We've heard from a number of the regulated health professions. There are ongoing attendant problems with that organization itself, as you know: who does what and who gets paid for what.
It's important in this bill to recognize that the nurse practitioner and other kinds of health care providers are included or expected to be involved as the delivery of health care unfolds. I think the physiotherapy group needs to be part of that. With the return to work and all of the proactive aspect of this, it's very important. I hear you very clearly and I don't want to become entangled with how long it takes the government to pay bills. It's clear the government is reasonably inefficient. That's not a party statement; that's a reality of governments needing to be more focused on results and the customer, whether it's an injured worker or whether it's a person in the legal system. I've made that kind of point.
I would request formally a copy of the Rover study. I think it's important because it supports the very nature of what the government is attempting to do on the proactive side. This is not against workers. In fact this is pro-worker, meaning prevention is the most important part in the workplace. The next part of this, as you said, is the quick return to work -- quick treatment, access to service instead of having a six-month response or delays in appeals and filing where the injured worker is subject to a high degree of anxiety in their lifestyle. I guess the point I'm trying to make is the return to work almost -- we heard very clearly, I could give you the presentations from the medical community, that the return to work is an important part of the recovery process; hanging out there is -- now, do you have suggestions for us specifically in the return to work that you would be able to speak about here now?
Ms Borovich: If I may respond to that, again, in comparison to the motor vehicle accident patient, a motor vehicle accident patient can access treatment to the clinics within 24 hours. I'm going to speak for my clinic, but this is occurring across the province certainly. The assessment is half an hour to 60 minutes, and the reason I'm saying that is, it's a comprehensive assessment; it's a musculoskeletal assessment that determines what functionally that worker is capable of doing quickly.
Under the current WCB act the way it is right now, the WCB patient or worker is not capable of accessing that quick treatment. We cannot treat a WCB injured worker for $12.20 with that. Give them the necessary quality treatment that includes suggestions regarding return to work that includes definitely communicating with the other health care practitioners, communicating with the employer, communicating with the patient via phone, via verbal reports. All this communication is essential for WCB to have earlier. This is what we are saying. What I'm saying also is that practitioners need to be compensated for that quality of service that is necessary for that injured worker.
Mr O'Toole: Yes, I would agree. The fee schedule --
The Chair: Mr O'Toole, we have to go to Mr Patten. I'm sorry.
Mr Patten: Good to see you today. I am empathetic totally with your case and I wonder why you bother even dealing with any WCB cases when it's obvious that you're being dealt with in a disrespectful manner.
Mrs Schmuck: We question as well. In many cases we are dealing directly with employers and it is more effective in all respects.
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Mr Patten: I think most of the practitioners in any field suggest what you do, and I agree with it, is that the earlier you can move on a situation the likelihood of better results occurs rather than deterioration. So I'm supportive of that.
By the way, the fee schedule sounds quite astounding. What's the fee schedule normally for you if you're on, let's say -- you have access to OHIP, right?
Ms Borovich: Not to OHIP, no.
Mr Patten: You don't, not at all.
Ms Borovich: In response to your question, with the people who are covered for the insurance motor vehicle accidents, as in the submission to you, the average treatment for a person covered through extended health care is $75 per assessment and approximately $30 to $45 on average per treatment.
Coming back to your position on why we continue to treat WCB patients, which we still do -- myself under the community clinic program -- and that was brought up at the accreditation through the WCB at my clinic very recently, I think it's very important that the system put in place be flexible, that all injured people should have the access to the care they require, that their needs be assessed early and this be taken care of, that it be a win-win situation for all parties. Employers have recognized the importance of the intervention early. They are now directly compensating clinics with that earlier because a worker is not covered between zero and 20 to 28 days for the community clinic program. At our clinic employers are actually stepping in and saying, "We'd like the treatment up front. It works," and most people are completed within 21 days.
The Chair: On behalf of the committee members, we thank you for bringing your presentation and your ideas before us today.
AUTOMOTIVE PARTS MANUFACTURERS' ASSOCIATION
The Chair: I'd like to now call representatives from the Automotive Parts Manufacturers' Association, please. Good morning and welcome. Please make yourself comfortable and introduce yourself for Hansard.
Mr Ken MacDonald: Good morning. My name is Ken MacDonald. The Automotive Parts Manufacturers' Association welcomes this opportunity to provide you with our two cents' worth on Bill 99. In fact, I promise you three or even four cents' worth, so important are the issues for our industry.
Who are we? We are the national association for suppliers of OEM parts and materials for the automakers. The industry employs about 90,000 Canadians, mostly in Ontario, and generated about $22 billion worth of GDP last year, most of which is exported.
The APMA has taken a keen interest in the WCB reforms from the outset. In the fall of 1995 we surveyed our members and prepared a detailed position paper that covered both Bill 15 and phase 2 issues. Numerous member companies of our association were represented at a consultation with Minister Cam Jackson hosted by us shortly thereafter. In December 1995 we made submissions on Bill 15 to this committee. When the minister's discussion paper came out the following month, we studied it and prepared further submissions, detailed ones for the formal consultations of that spring. We have also participated in the work of the Employers' Council on Workers' Compensation and have met several times with WCB chair Glen Wright. Throughout, our key message has been that the WCB system must and can be made more efficient.
Our concern stemmed from the fact that our member companies' biggest customers, the Big Three automakers and the Japanese automakers, have purchasing staff very adept at finding the most cost-effective sources of parts and materials. If the Ontario WCB were to fall behind its counterparts in other jurisdictions like Michigan in respect of rates or effective rehabilitation or return to work, then suppliers in those other jurisdictions would gain a cost advantage that these automakers would very quickly pick up on.
But enough of generalities about competitiveness. Instead, I'll let you in on some newly compiled numbers about where automakers are choosing to build their new facilities and factory expansions; important, because of course our auto parts manufacturers in Canada won't ever sell from Canada to a South American or a European or an Asian-based facility. The APMA tracked their announcements over the past 24 months, and out of a total of C$18.5 billion in total capital investment announced for North America, by all automakers, Canada accounts for $3.5 billion. We can do better than that. Of course, WCB is one factor in those decisions as to where to build those factories.
We have reviewed Bill 99 and were most pleased to see that most of our recommendations have been adopted. In particular we applaud the increased focus on safety, on return to work, on greater vigilance for fraud for all parties and on insurance principles and practices. More specifically, we welcome the tightened time frames for appeals, the obligation to consent to the release of medical information and the obligation of workers and employers to cooperate in planning return to work.
We are still deeply concerned about the fact that many of the health professionals, who serve as the gatekeepers to workers' compensation, have little or no background in OHS, occupational health and safety. There are still too many stories of doctors who, being uncertain about the extent of a worker's incapacity or the time necessary for convalescence, prefer to overstate it and perhaps sometimes overstate it significantly, perhaps so as to minimize any risk of liability. We strongly urge that OHS training be required for all those who would write medical reports or the return-to-work functional ability information forms.
There is also some room for improvement still on safety. We believe the NEER program is focused too much on the severity of claims, with not enough weight on the frequency of claims.
All in all, Bill 99 we believe is a step in the right direction of protecting industrial jobs.
Interruption.
Mr MacDonald: I was silent during other presentations.
We commend the government for its courage in tackling WCB reforms and administering some tough medicine. We believe, though, that some doctors need some medicine too. Do be sure to finish the job. Those are my comments.
The Chair: Thank you very much. We have approximately three minutes per caucus for questioning, beginning with the government caucus.
Mr Maves: Thank you very much for your presentation. Some questions around return to work: Are you aware of many of your members having return-to-work programs at present?
Mr MacDonald: Many, but not all, do. It's an area for improvement on our side, I admit.
Mr Maves: Do you think that the new obligation in section 40 is going to encourage your members to start to adopt return-to-work programs?
Mr MacDonald: I can't see that it wouldn't contribute.
Mr Maves: You've talked about the functional ability information forms, and where we've seen the existence of return-to-work programs -- the Paperworkers union up in Thunder Bay at Avenor had one, which was very effective. They had their own functional ability forms. Could a return-to-work program work without employee and employer cooperation and without those forms, without the knowledge of the functional abilities of that injured worker?
Mr MacDonald: Certainly you need to know the functional abilities of the worker. We're not convinced that forms as presently drafted are ideal and we have severally made submissions on the wording of the forms. Cooperation and appropriate information, I think it's clear, are both key.
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Mr Maves: Last, you talk about the NEER program. I've heard from different folks; sometimes some will say the NEER program has just pushed some claims under the carpet; other people, including some labour groups, have said that it's increased the attention that employers are paying to occupational health and safety because they understand it can have a positive impact all the way around, not only morally on their workforce but also on their bottom line. What's your view of the NEER program in general and how specifically do you think it can be adjusted?
Mr MacDonald: Overall it's useful, only, in conjunction with such things as appropriate enforcement of the Occupational Health and Safety Act, of course. No one incentive program can completely answer all the needs that there are concerning ensuring safety. Specifically on NEER, we've submitted elsewhere, but NEER has a place. We're suggesting some adjustments, but it has a place alongside, as I said, enforcement of safety laws.
Mr Maves: We've had a large increase -- our government has just hired and filled some empty positions for Ministry of Labour inspectors and we've increased by 40% total field visits and inspections. The levying of fines has increased substantially also in the past two years. I wonder, is the Ministry of Labour inspectors' role just as an enforcement mechanism? Is that the appropriate role, in your view?
Mr MacDonald: The ministry --
Mr Maves: The Ministry of Labour workplace inspectors, is that the appropriate role, just for them to enforce, or should there be an educative role also when they go to a workplace?
Mr MacDonald: Educative roles are being performed now and of course they're very helpful in the sense that they're preventive in their focus. Both have to continue. Whether they would be provided by one officer or another is not something I had developed thoughts upon. I want to see both roles performed by whomever.
Mr Dominic Agostino (Hamilton East): I have a couple of questions and concerns about the tone of the brief and a little bit of background into this. You state that if Ontario were to fall behind its counterparts, like Michigan, in regard to the WCB, somehow it would put you at an economic disadvantage and it would cause a problem. Are you suggesting through that statement that if states like Michigan continue to drop their rates, continue to drop the rates they pay workers, continue to make it much more difficult for injured workers, Ontario should follow suit in order to allow your industry to stay competitive?
Mr MacDonald: No one would ever say that any one factor should be sacrificed to such an extent that you're going to have those kinds of problems. The decision where to invest is a multifactored decision. I've only said that all these factors, including the WCB, are ones that you keep within your sights when you make decisions about investment choices, and therefore it's incumbent upon a public body like the government of Ontario to give some thought to that.
Mr Agostino: You've made what I think is a very serious accusation on page 3. I want to ask you about that. You said, "There are too many stories of doctors who, being uncertain about a worker's incapacity or time needed for convalescence, prefer to overstate it so as to please his/her patient or to minimize risk of liability." I would read this that you're suggesting family doctors in this province are lying when stating the injury, and I think that's a fairly serious accusation you're making about family doctors and physicians in Ontario. What evidence do you have to back that up?
Mr MacDonald: I think that you've levied just now a very serious accusation against me, because the wording doesn't state that anyone lies about anything. I've chosen the words carefully. Where there is uncertainty, a professional has to make a decision which side to come down on, whether to err on one side or the other. I'm using the word "stories" because my evidence is predominantly anecdotal. I agree therefore that there could be perhaps somewhere out there stronger evidence on the issue, but I'm speaking of anecdotal evidence right now. I would suggest that everything else being equal, you're going to err on the side of overstating rather than understating. The consequences for an erroneous understatement of the severity are more onerous than the opposite, than overstating, for the doctor.
Mr Agostino: With all due respect, sir, by suggesting that doctors overstate in order to please the patient, that would suggest to me you're questioning the integrity of physicians in this province, and I would think you should be careful of that.
Just one more: Can you point out anywhere in the brief here that you speak as to the protection of the rights of injured workers and how it would benefit your industry by having a good system in place to protect the rights of injured workers?
Mr MacDonald: I stressed at the outset the importance of safety and applauded the fact that there is some additional attention to safety, although more attention needs to be given.
Mr Christopherson: Thank you for your presentation. I have a number of responses to your submission and then perhaps a question. First of all, you state towards the end of your brief, "Bill 99 is a big step in the direction of protecting our industrial jobs." I would say to you, as someone whose background is the auto workers' union before I entered into politics, that in most cases the unions in industrial sectors care a hell of a lot more about maintaining jobs than a lot of employers do. Further, with auto workers in particular and in terms of the automotive industry, we've heard right from Buzz Hargrove on down through to local representatives, including Jack Dunn, the financial secretary of Local 636, who is the next speaker, condemning Bill 99. If they thought for one instant this was going to kill any of the jobs of the members they represent, they wouldn't hesitate to say so, and they don't. They're very much opposed to this bill.
I would also point out, when you talk about competitive rates, that the federal government just recently released their own study that showed that our WCB rates are indeed comparative, and they used that argument as part of their selling the argument that Ontario and Canada are a good place to do business. I heard the same argument, sir, when we passed Bill 40 and finally outlawed scabs again in Ontario, which this government has allowed to come back in, and I can tell you that I watched the third party and representatives of industry say that jobs by the thousands were going to leave. The reality is that in the first full year after that we had a record level of investment in the province of Ontario under Bill 40, so we've heard these scare arguments before.
The last point, and I'll put it by way of a question, is that you state in closing that you commend the government for their courage in administering some tough medicine. I would say to you, sir, that it doesn't take a whole lot of courage to go after injured workers. That's just a bully.
You said in your report that you're pleased that a lot of your recommendations were adopted. None of the recommendations of injured workers or the people who represent them were adopted, and I'd like to hear from you how you think in any way Bill 99 is fair. The people you represent, I'm sure, are very happy because they're getting a 5% cut in the premiums they pay, $6 billion worth that's coming off the backs of injured workers. Those injured workers are losing 5% of their income. What do you say to those injured workers who do not feel that this is fair, courageous nor tough medicine, but merely a bully government going after their rights? What do you say to those injured workers who are sitting right there behind you?
Mr MacDonald: You raised a number of points there. The first one you raised was a challenge as to whether or not we care about jobs, as others do. Needless to say, if jobs, ie, functions, manufacturing this, manufacturing that, don't happen in Canada, then Canadian companies operating here don't earn any income, so of course they do care. Their raison d'être disappears if there's no work being done here. The industry continues to be one which is relatively labour-intensive. There will continue to be concern about jobs to the extent that they continue to be concerned about the raison d'être for their factories in Canada. That's the first point.
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The second point was the suggestion that we're engaging in scare tactics. I have indicated here as clearly as I can some of the best information we have lately about decisions on where companies choose to establish their facilities and create employment. Those numbers are taken from the newspapers, magazines, trade journals etc. They're pretty much a number-crunching exercise. You can deal with them as you see fit. I haven't used scare terms; I've simply put together this information for you for your consideration.
As for the third point, you suggested the government could not be said to have exhibited courage in the sense that their target supposedly was injured workers. Whether or not there's a target, and whether or not that target is injured workers, is a political judgement call. My point is that the reforms would attract scrutiny from a variety of constituencies across the province. Reform to the WCB invariably will bring, from some side or another, some consternation, some objections. There is potentially a political price to pay for any reform to a law that has a wide range of constituencies and it is in that sense that I use the term "courage," courage to proceed even if there may be those who will speak vociferously against the reform.
Mr Christopherson: You didn't answer my question. What do you say to those injured workers? They got shafted.
The Chair: I'm sorry, time has expired. Thank you very much for taking the time to bring your suggestions before the committee today. It's appreciated.
CANADIAN AUTO WORKERS LOCAL 636
The Chair: I'd like to now call upon representatives from the Canadian Auto Workers, Local 636, please. Good morning, gentlemen. Would you would please introduce yourselves for Hansard. You have 20 minutes for presentation time, that may or may not include questions.
Mr Jack Dunn: Good morning. The gentleman in the middle is Rob Leeson and he's a member of our committee Local 636. On my extreme left is Nick De Carlo and he heads up compensation for the auto workers internationally.
Dear Panel Members: The workers' compensation and employment insurance committees of CAW Local 636 is pleased to be given the opportunity to express our views and relay our membership's concerns to the panel regarding Bill 99.
CAW Local 636 has a deep history of serving well its membership of 2,500 hardworking men and women for more than 50 years. Throughout this 50 years, the leadership of Local 636 has many times worked with, and at times lobbied for, progressive change with all three major parties in Ontario. Of course, we didn't agree on every issue, but we did take the necessary time to listen to each other.
As history clearly indicates, since being elected in 1995, the present government has never listened with an open mind to the concerns of working people. This committee believes Bill 99, in its present form, is by far the most anti-worker piece of legislation ever proposed by any Ontario government in over 80 years.
The committee has been tracking and actively responding to the Harris-Witmer WCB reform agenda since the fall of 1995. During this time frame of approximately 18 months, we have met and debated the ongoing changes to the WCB proposals with our local MPP, Mr Ernie Hardeman, Mr Cam Jackson, Minister without Portfolio responsible for Workers' Compensation Board, and of course Labour Minister Elizabeth Witmer, who introduced Bill 99 on November 26, 1996. We have tried to impress upon these government representatives not to allow their partisan feelings for the employers of this province to interfere with their responsibility to bring forth reforms that truly reflect the needs of workers in Ontario.
First on our report is the concern we have that changes to the WCB act of the magnitude the Harris government is bringing forth should have gone well beyond the public hearings format we see being allowed today. There are over 200,000 workplaces in the province of Ontario. Our committee does not believe the present format for public hearings will give everyone who wants to make a presentation before this. panel the opportunity to do so. Restricting input from the public, representatives and injured workers in our opinion will come back to haunt the Harris government.
Minor changes, we agree, do not require the amount of consultation we suggest, but certainly when a provincial government completely undertakes to rewrite the WCB act, workers, employers and the general public of Ontario deserve the right, and should be given the opportunity, for input on the final proposed legislation.
The Harris government, through Bill 99, also proposes that workers who are injured on the job will have to apply directly themselves to the WCB to begin their claims. We have a number of problems with this proposed approach as WCB representatives. If this proposal is implemented into the act, we believe many workers who are injured on the job will not apply for compensation. Many workers, especially non-union workers, will feel intimidated if they are required to ask their employers for the application forms.
This proposal begs the question to be asked: Is this simply a proposal suggested by someone who does not understand the pitfalls they're creating, or is it by someone who's trying to take advantage of those pitfalls at the expense of the injured worker?
These types of WCB application forms have proven in the past to pose serious problems for workers to understand. Presently in Canada, statistics indicate approximately 24% of all Canadians do not read and write at a grade 9 level. We are concerned a mistake made innocently on the application form could delay or deny an injured worker their benefits. It is also our understanding injured workers must also provide a copy of this WCB application form to their employer. Our committee suggests strongly to this panel that we believe a better way to enforce proper reporting of workplace injuries is to have the employer provide the forms, fill in the required information following consultation with the injured worker and require the employer to bear the cost of sending the report to the compensation board.
As you might be aware, this excellent idea is already enshrined in the present act. The suggestion we have regarding the present reporting concerns is that the Harris government allow the board to significantly increase the fines to employers who do not report workplace injuries as presently required by the act.
In our opinion, the WCB act presently does a fair job in balancing the rights of the injured worker and that of his employer to know their medical status when requests are being made to the injured worker's confidential medical file. In most workplaces in Ontario today, injured workers are required to return to their employers a detailed return-to-work information form that is filled out by the injured worker's doctor. The form requests the doctor to indicate if the injured worker is (1) able to return to regular duties immediately after treatment; (2) able to return to light duty -- the employer usually lists in this section a list of light duty work the employer can provide; or (3) unable to return for an estimated time frame.
There is also an area on the form requesting the doctor to indicate the nature of the disability. This information apparently does not satisfy many of the employers in Ontario, because it is our understanding that Bill 99 will force injured workers to authorize their doctors to release their personal confidential medical information regarding their injuries to the employer or face possible loss of WCB benefits if they object. If this format is allowed by the Harris government, we believe many employers will take advantage of the opportunity, using confidential medical information to have injured workers denied benefits.
Labour Minister Witmer indicates this approach is supposed to expedite a return-to-work process which obliges the employer to submit a return-to-work plan after an injured worker is absent from work for more than five days. It is our opinion that allowing the release of confidential medical information to an employer who has very little expertise in these matters will only encourage punitive return-to-work plans that will not benefit the injured worker. This approach being proposed by Labour Minister Witmer, we believe, creates a master-servant relationship. Stripping workers of their basic right of medical confidentiality certainly opens the door for abuse to occur.
Bill 99 also allows the Workers' Compensation Board additional powers to place injured workers into a labour market re-entry plan. The WCB committee of Local 636 agrees present programs offered through vocational rehab have not been successful enough in returning injured workers to their pre-injury employers, nor have workers been totally satisfied with many of the retraining programs vocational rehab has placed them in. We had hoped Bill 99 would have required the pre-injury employer to invest more effort, money and time in procedural and engineering changes to the work station of the injured worker, which would allow the injured worker to return to the pre-injury employer and become a valued employee again.
Unfortunately, it is our understanding this labour market re-entry plan could force an injured worker to be placed with another employer, without any consent requested from the worker. An injured worker placed into a plan with another employer, it appears under Bill 99, does not have a guarantee of a job and certainly no guarantee of a right to retraining. Bill 99, we believe, also gives the right to the WCB to outsource this plan to anyone it chooses, perhaps to a private insurance company or even to an agent of the injured worker's employer.
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Under this proposal, what rights does an injured worker have? Our committee believes the proposal favours the WCB and the employer. It does not favour the injured worker. The worker will have less rights to object, less rights to appeal and fewer organizations to represent their interests.
Bill 99 also indicates that Labour Minister Witmer is suggesting the Harris government create a new indexing formula for past and future benefits. The new formula that Labour Minister Witmer proposes, we understand, indicates the calculation of benefits will be one half of the consumer price index less 1%, with a maximum cap of 4%.
What do all these new math calculations mean to the injured worker? Most workers won't be aware of the financial changes to their benefit level right away unless they are members of a union.
Our committee's opinion is that Labour Minister Witmer's new indexing proposal is very unfair to the injured worker. Our math reveals this new formula will reduce purchasing power of an injured worker's pension by 60% in 20 years.
Of course, Labour Minister Witmer proudly tells her boss, Mike Harris, that this new indexing formula will save the WCB $9.3 billion. Unfortunately, what she conveniently forgets to tell workers is that this $9.3-billion saving for WCB will come from the lost benefit level occurred by injured workers in this province.
Labour Minister Witmer, also through Bill 99, promotes that payments for lost-time benefits be reduced by 5.6%, from the present 90% net to less than 85% of net pay. Remember, workers' compensation is based on a no-fault system, but under Witmer's proposal a worker is automatically penalized a reduction of 15% of their wages when they incur a workplace injury.
It is our belief that this calculation of average earnings basis -- your previous earnings on which the 85% payment is based -- is intentionally written very loosely. It seems these previous earnings can be reduced by such factors as periods of layoff in the previous year.
Again Labour Minister Witmer proudly states this will save the WCB $3.1 billion. This cut to injured workers' benefits is very unjust, certainly when she recommends through Bill 99 that employers of this province should receive back a 5% rebate on their WCB assessments, worth a cool $6 billion. When the total is added up for the employers, it amounts to more than $15.2 billion in savings.
Where is the common sense or fairness when injured workers' benefit levels are being gutted at the same time the WCB reports a profit of more than $500 million in 1995 and has more than $8 billion in assets?
The truth of the matter regarding the concerns that the WCB has with the unfunded liability is simple. Since 1983, the employers of Ontario have intentionally not funded this section properly. The employers owe this money, not the workers or the taxpayers of Ontario.
Under Bill 99, Labour Minister Witmer also proposes outlawing compensation for occupational stress and placing strict time limits on chronic pain. This proposal, in our opinion, again does not make any common sense to workers, for workers believe the impact of a work-related physical disability or psychological disability is the same.
The Harris government is making the workplace stress situation worse by its constant attacks on the working class. Negative changes to labour reform, health and safety, and now Bill 99 are enough to make any worker develop stress. At the same time, workers in many workplaces are telling us they are becoming very angry and resentful towards the Harris government's agenda of constantly attacking them.
If these proposals to outlaw compensation for occupational stress and placing strict time limits on chronic pain are passed into law, we feel this will allow unscrupulous employers the opportunity to freely harass and intimidate workers. Workers disabled with chronic pain fear they will be thrown on the scrap pile if their pain does not subside or if a strict time-limited treatment recommended by WCB does not cure their disability.
In Ontario, statistics indicate over 6,000 men and women die each year due to workplace disease. It is very unsettling when you compare the number of physical deaths to disease deaths in the workplace. It is estimated that 30 times more workers in Ontario die of workplace disease deaths than physical deaths. Our findings are not meant to minimize the terrible impact physical deaths have on our members, but to emphasize our frustration with Labour Minister Witmer, who proposes to eliminate the Occupational Disease Panel, ODP. This one-of-a-kind independent scientific body provides the research necessary to prove the link between chronic disease and the workplace.
The WCB committee of CAW Local 636 believes the independent scientific information which the Occupational Disease Panel provides is essential for recognizing and preventing occupational disease in the workplace. We stress to all Tory members on the panel that eliminating the Occupational Disease Panel is totally unnecessary and is one proposal the Harris government will come to regret.
As compensation representatives, we regularly represent injured workers at various levels of appeal as allowed by the Workers' Compensation Act. Presently, the final level of appeal is the Workers' Compensation Appeals Tribunal, WCAT. This is an independent body which both employers and workers can appeal to if they believe the Workers' Compensation Board did not treat them fairly.
The Workers' Compensation Appeals Tribunal is presently allowed to interpret law and can override WCB policy when it finds WCB policy does not reflect the meaning of the law. The new legislation being proposed in Bill 99 will prohibit WCAT from interpreting legislation, and WCAT will be strictly limited to ruling on WCB policy only. This approach by the labour minister is not fair to the injured worker. It upsets the level playing field between the WCB and WCAT and allows the board a free hand. This proposal will deny rightful benefits to injured workers and in our opinion should not be implemented.
The labour minister also proposes, through Bill 99, cutting the budget of the office of the worker adviser, OWA, by 30%. This office was originally established to represent all workers in dealing with a complex WCB system. It is a very anti-union move. Premier Harris and Minister Witmer suggest rescinding the right of unionized injured workers to seek assistance or representation help from the OWA. Is this the reason Premier Harris and Witmer are using to cut OWA's budget by 30%?
The WCB committee of Local 636 believes this proposal is very underhanded and once again reveals to the hundreds of thousands of hardworking unionized men and women the utter contempt that Premier Harris and many of his government colleagues hold for us. We firmly believe this proposal should be scrapped and that Premier Harris must finally understand he must represent all workers in Ontario fairly, including unionized workers.
There are many other areas of Bill 99 which we believe undermine workers' rights to fair compensation for work-related injuries.
Labour Minister Witmer's proposed reforms to the Workers' Compensation Act will not, we believe, resolve the real problems. In 1995, tens of thousands of working people were severely injured on the job and, regretfully, over 200 working men and women lost their lives in the performance of their jobs. For these working men and women of Ontario, there won't be any big writeups in the newspapers, nor will there be any parades in witness of their tragic deaths.
The Harris government, in our opinion, has approached the problem with workers' compensation from the wrong direction. It is not the injured workers of Ontario that his government should be attacking through Bill 99. Premier Harris and Labour Minister Witmer should be concentrating their efforts on charging the unscrupulous employers of this province who continually violate both the Occupational Health and Safety Act and the Workers' Compensation Act. These same employers continue to maim and kill innocent workers in Ontario. We request this panel to forward our concerns to Premier Harris and Labour Minister Witmer. Through you, we ask them to reconsider their negative proposals in Bill 99.
CAW Local 636 represents thousands of workers in Oxford county who expect and deserve fair compensation from this government when they are injured.
This is respectfully submitted by our committee chairman, Mr Gray, and the members are myself, Jim Farrell, Dennis Burleigh, Roy Clarke, Brian MacDonald and Rob Leeson. Thank you very much.
The Chair: Gentlemen, thank you very much. That's a very full presentation and it has completed the time allotted. We thank you for taking the time to come before us this morning and we appreciate your advice.
Mr O'Toole: Madam Chair, on a point of clarification if I may: There's one page here in your presentation, paragraph 7: "In Ontario, statistics indicate over 6,000 men and women die each year due to workplace disease." That number is incorrect. The number who died due to work-related injury was 247. For the record, I think we should be clarifying that.
The Chair: Perhaps these gentlemen would prefer to submit something to the entire committee to --
Mr Nick De Carlo: I'll answer the question.
The Chair: No, I'm sorry. I don't want to get into a question-and-answer.
Mr De Carlo: It's a simple answer and it's a simple clarification. Give me one minute to do it.
That's a study that was done by Dr Analee Yassi in the late 1980s; we'll provide it to you. Dr Analee Yassi is a well-respected occupational physician, an epidemiologist. That study indicates there are up to 6,000 deaths per year in Ontario. The numbers you're quoting might be the total number of deaths in Ontario under the Workers' Compensation Board which are recognized claims, but there are far more people than that who are dying of occupational disease who are unrecognized.
Mr Christopherson: I'd like a clarification.
The Chair: Hang on.
Mr Christopherson: Are we going to lose the thousands of jobs that the previous presenter said we're going to lose?
The Chair: Please, Mr Christopherson.
Mr De Carlo: No, we're not.
The Chair: I think the committee would be interested in receiving the material that you suggested from that doctor, and I'm sure the clerk will distribute it to all of us.
Mr De Carlo: We can give you a copy of that for sure.
The Chair: That would be helpful. Thank you very much, gentlemen. We appreciate it.
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RETAIL WHOLESALE CANADA
UNITED STEELWORKERS OF AMERICA
The Chair: Could I please call representatives from the United Steelworkers of America. Good morning, sir. Welcome to the committee. If you'd please introduce yourself for Hansard.
Mr Dave McCormick: My name is Dave McCormick and I'm with Retail Wholesale Canada, the Canadian service sector division of the United Steelworkers of America. I'm here on behalf of our organization to first of all say that I'm not here individually. The reason I'm here is because we have policies that are developed through convention. There are issues that our members talk about on the shop floor and at work. It's not just something that this organization comes out of the blue and says, "Oh, we don't like Bill 99." It's something from experience within our organization and within servicing our members.
On a personal note, for the last five years I've had the opportunity of representing workers who have been injured and diseased on the job throughout the different levels of the board, including the appeals tribunal. I'd like to thank Dave and Gilles for the opportunity to be here. After all, it is a New Democratic slot that I ended up getting on the committee.
I'm not overly surprised when I look at the fact that these hearings are cut short and there are some 1,000 deputations you're not going to hear from. I notice that the Minister of Labour isn't here. You also won't hear from the 300,000 workers who are probably going to be injured within the next year at work. These hearings, quite frankly, are a sham. That's evident simply by the denial of listening to the public. I want to hope that the public remembers the arrogance of this government. The recent polls, which now show that the Conservatives have 33% of the vote, would suggest that they are starting to listen. I can only hope you go the same way that Brian Mulroney did.
Interruption.
The Chair: Order, please.
Mr McCormick: As a representative, I'd like to talk to you as if we had this legislation in place, about some of the people I representand and in terms of what would happen to them under your damn legislation.
I'd like to talk to you about a young lady who can't lift a pot off the stove. Prior to her injury, she had two part-time jobs to make ends meet. Take a look at your new legislation. There's no provision in it for concurrent employment, so what happens to her is that her income is now going to be cut. This is a young girl, 23, barely a baby in the workforce, injured on the job, who now can't even take a pot off the stove, and this government doesn't give a damn.
I'd like to talk to you about a young lady who has been advised by her doctors not to have children. Under your legislation, with the time limits, she wouldn't even have an appeal because three years ago, when her case was originally denied at decision review branch, she didn't know enough to go forward and do an appeal.
Let's talk about employer interference, of a young women who received a medical report from an employer's doctor. The employer's doctor did not examine her. Their opinion was based on a conversation with her family doctor, and the family doctor responded at that time: "I have not yet seen this patient. She's been seen in emergency. I don't have the reports. I'm not prepared to make a comment on it." Based on that information, the employer's doctor wrote to the employer and said, "I don't think it's work-related." Since then, she goes back to work, she's fired. She's fired on the day she comes back because her claim has been denied and is under the appeal process. She's had a job offer in a massage parlour.
These are the type of people that your government is saying don't deserve fairness, don't deserve justice.
Let me talk to you about a young woman. Every night her child rubs the back of her neck while she throws up. She's up every night, in pain, yet your government says that chronic pain is the usual healing time. You tell me how that's just, how that's fair.
There's a gentle family man whose children won't speak to him any more. Why? Because of the pain he's going through. But this pain should have resolved; that's your determination on chronic pain.
Or let's talk about how we're going to fill out the forms. Let me talk to you about a young man, back in 1992, who ended up going to his employer and saying to his employer, "I've hurt myself." The employer responds, "I think that maybe if you went off on group insurance benefits, you'd get paid faster, you wouldn't have problems getting your money, and then you'll make sure everything is fine," which he does. Three years later he ends up with a recurrence, he files for compensation and he ends up in a long process. This is not the first time that's happened with that employer.
Let's talk to you about board policy and what the WCAT is going to do. Right now I am going to the appeals tribunal for a woman who the board determined was capable of making $600 a month, so she got a $600-a-month future economic loss. She subsequently applied for Canada pension disability benefits. When her FEL review come about, she was getting $600 a month from Canada pension disability and she was deemed capable of making $600 a month, so now she gets a zero FEL. That's based on board policy. If you want to take a look at what you're saying, that you can only interrupt board policy, then this woman gets nothing. It doesn't matter that in order to receive Canada pension disability benefits, she has to be declared incapable of working. That doesn't matter. Board policy says one and one is two, and that's what you get. The government's proposal is going to deny that woman the opportunity to have her case fairly and justly heard.
Or a man who took two Tylenol 2 to walk his daughter up the aisle to give away her hand in marriage. What about him? He ends up getting a FEL pension. Again, the same process happened to him with the Canada pension disability benefits. He's now in the appeals process, but again, not according to your government.
I'd like to talk to you about a grandfather who recently has gone through the system and has received a substantial award from workers' compensation dating back to 1975. When he got that money, he turned around and said to me: "The money's fine. I like the money but, my God, I'd give it all back to pick up my grandchildren." How do you look at justice there?
I look at the legislation and I refer to another young woman I have who, according to the board, is suitable to go out and get another job. It doesn't matter the fact that she's 55, that she walks with a limp, that every day she can hardly move around; there is suitable work that she can do out there. But that work will never be available for her, never be available because she's disabled, and severely disabled. When you look at your legislation and you look at the labour market re-entry programs, why do you just talk about job suitability? What about the availability of the work? Before this accident, that lady worked. It's because of a workplace accident that she can't work.
The people I represent don't abuse the system. They are forced on to workers' compensation because of a no-fault accident. The statistics verify it: 50% of all claims are no-lost-time claims; 20% to 25% of injured workers return within two to three weeks. The reason injured workers don't return to work is because they are denied meaningful re-employment, because employers in this province are not providing the work; they're not modifying the jobs. That's the reason there is a problem within the system. Don't penalize those who are already penalized.
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You talked about removal of chronic stress. What about sexual harassment? Is that not relevant? To 50% of my members it is. Within the labour movement we're doing our part to address that. Part of every educational program I deliver on behalf of the Ontario Federation of Labour deals with the problems of sexual harassment, it deals with racial harassment and it deals with these issues. But now we have a government that's turning around and saying it doesn't really matter if you're damn well harassed at work, "We don't give a damn because you're not going to make the employers pay." Well, the only way it's going to stop is when they've got to pay for it.
When you cut benefits to 85%, you're not hurting the 50% of people with no-lost-time claims; the people who return in two to three weeks aren't going to feel a lot. But persons who end up with a permanent disability are going to find their life even further destroyed. These people don't receive now the benefits they received before. They're not receiving the pension plans. They're not receiving the family coverage for their drugs. They're not receiving their dental plans. That's not covered. A lot of them, if they make over the cap, don't even receive 85%. What you are saying is that they deserve less because they're second-class citizens and because they're not worthy. I say that's wrong.
Labour-management re-entry program, control to employers, and who gives a damn how much they abuse the system? Just like that young lady who now can only find a job in a massage parlour, you just go ahead and give that employer more power, because I know that's a damn good employer. They won't do anything wrong. The reason they do it, the reason they force workers off and they fight their claims and they turn around and say, "We won't allow you to go on sick benefits if you file for compensation," is because for every worker who fights it, 10 more are going to say, "I can't afford to." They're going to say, "I'll go on your company benefits," and "We'll make your job safer and we'll make it a little bit better because you're not recognizing workplace accidents." So for every employer fighting it, 10 workers can't afford to. They can't afford to take the fight on; they can't afford to go through the system.
Where in here are we talking about employer abuse of the system? I don't see it. The recent article from Glen Wright is in an issue of Abilities, summer 1997. For those who don't know, he's the CEO of the compensation board. He refers in the article to the complexity of the system, yet you are turning around and adding a third set of major legislation. We already deal with pre-1990, we deal with post-1990 and now we're going to deal with the -- I believe it was referred to as the bill of death of 1997. Three major pieces of legislation and you talk about making a system simple? My God, injured workers are going to have to go out and get representation to find out what other piece of legislation they fall under.
I understand why you're restricting WCAT to board policy: because you have to rewrite the legislation, and WCAT right now has past practice that they rely upon so that there is consistency within the system. It doesn't matter, the fact that the majority of WCAT decisions that are released are unanimously agreed upon by the employer representative, by the labour representative and by the neutral vice-chair. That doesn't matter. What matters is that you've got a government that's so damn concerned about destroying injured workers even further by attacking the most vulnerable in our society that they'll rewrite the legislation so there's no past practice to go on. You don't talk about the impact on health and safety, because if you did, you would never have gotten rid of the Occupational Disease Panel.
You heard from Nicky Carlan, who said that if the Occupational Disease Panel saved only three lives per year it would pay for the cost of the panel. I don't know what price you put on a human life, but I hope like hell that the people of Ontario do and remember that at the next election.
The Chair: All right, we have time for very brief questions and answers from each caucus. We'll begin with the Liberal caucus, please.
Mr Patten: Thank you for your presentation. It was very moving and articulate. It sounds to me, by what you say, that this legislation has really tipped the balance of attempting to provide a fund and has forgotten the original purpose of the mission of the board, which was to provide an effective and significant support to people who are injured in workplaces. So I ask you if in your many of the functions, the research functions, the appeal process, the rights, the eligibilities -- it sounds to me as if a lot of people who will be injured just won't be in the program, that they'll be in other programs. They may not show up as a statistic for WCB, but they will be on welfare or social assistance or in other programs out of the board program. Is that your view as well?
Mr McCormick: I would agree it's strictly a downloading of costs on to the taxpayer. The WCB is employer-funded. It will be downloaded on to the taxpayer and we're going to pick it up in terms of welfare. They've already done their part by reducing welfare benefits by 21%. I guess that's how they're going to reduce their cost: at the taxpayers' cost.
Mr Christopherson: Dave, thank you for an excellent presentation. My question to you would be this: You've listed a litany of changes that are going to affect your members in a negative way. I think your members are lucky to be served by people like you who are there to fight for their rights regardless of how few of them are left after Bill 99. They are indeed very fortunate to have you to do that for them.
Can you give us some sense of what it might be like for people who don't have the benefit of you and your union and what they're going to face under Bill 99?
Mr McCormick: They may as well not bother filing a claim, because it's going to be denied. Unless you end up with the slip, trip and fall at work, anything to deal with repetitive strain injury, chronic stress, chronic pain, anything where you end up with a permanent disability, you're going to have problems. Those people may as well just get ready to go on welfare.
Mr Maves: Thank you very much for your presentation. There are subsections of sections 130 and 138 that are new, that allow the board to go after employers who owe premiums. I just wanted to point that out.
You made a point about one of the ladies you represent. You said she was permanently disabled and the board had said she wasn't and that she could make a certain amount of money. Under Bill 99, section 47 basically adopts the old section dealing with how the board decides the level of impairment. I wonder if you have some advice on how the board should better do that than under the system that is presently in place.
Mr McCormick: If you look at page 26 in my document, there's a study that was done by Sandra Sinclair and John F. Borton Jr, Measuring Non-Economic Loss: Quality of Life Values Versus Impairment Ratings, which involved 12,000 injured workers and 300 individuals matched against the general population. They found that your NEL awards are generally undervalued. In terms of the new legislation, there's nothing in place that even says what guidelines they're going to use in terms of what an impairment is and what the measurement is.
The Chair: That concludes the time for your presentation. On behalf of the members of the committee, we thank you for bringing your advice and your brief before us.
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CANADIAN ASSOCIATION OF REHABILITATION PROFESSIONALS, ONTARIO
The Chair: I'd like to call upon representatives from the Canadian Association of Rehabilitation Professionals, please. Good morning and welcome; if you would please introduce yourselves for the Hansard record.
Ms Elaine Hobbs: I'm Elaine Hobbs and I'm president of the Canadian Association of Rehabilitation Professionals, Ontario. To my left I have Judy Marshall, the executive director of the national Canadian Association of Rehabilitation Professionals, and Katie Parkin, the vice-president of the Ontario corporation. I'd like to thank you for inviting us to speak today.
I'd like to start off by telling you a little bit about the Canadian Association of Rehabilitation Professionals, also known as CARP. CARP was established in 1970 as a national organization to train and promote rehabilitation counselling as a profession, and to set up safeguards for the public to protect them from unscrupulous practice. I'm speaking today on behalf of the Ontario corporation, which is a society of the national organization, and we have 1,400 members here in Ontario.
We have two major types of members in our association: professional members and associate members. The professional members make up about 70% of our organization and are accredited rehabilitation professionals or certified rehabilitation counsellors. These people practise as case managers, vocational counsellors, rehabilitation counsellors or consultants, vocational evaluators and job placement specialists. Our associate members are made up of allied health professionals. We have members who are occupational therapists, physicians, a lot of health professionals who have a stake in rehabilitation. We also have interns, students and consumers as our associate members, who again have a stake in rehabilitation counselling.
Rehabilitation counselling is a systematic process which assists persons who have limitations in life functioning as a result of conditions such as physical impairments, sensory impairments, mental illness, developmental disabilities and chemical dependencies to achieve, promote, and/or restore independence and productivity. Today we're talking about injured workers or workers with occupational disease.
Vocational rehabilitation involves counselling, communication, goal-setting and case management, which has two components, both medical and vocational case management. We do this through psychological, vocational, social and behavioural interventions and advocacy.
There are many special techniques and modalities used within this profession. We've listed some of them in our presentation today: assessment and evaluation; diagnosis and treatment planning; vocational or career counselling; individual and group counselling interventions focused on facilitating adjustments to the medical and psychosocial impacts of disability; case management, referral and service coordination; program evaluation and research, looking at a lot of community programs, community rehabilitation facilities, educational programs and even the written rehabilitation plan, for that matter; other techniques or interventions to remove environmental, employment and attitudinal barriers; consultation services among multiple parties and regulatory systems; job analysis, job development and placement services, including assistance with employment and job accommodations; and the provision of consultation about and access to rehabilitation technology.
Rehabilitation counsellors are professionals qualified to provide varied and specialized rehabilitation services for persons with disabilities, and we have a very distinct and unique body of knowledge. The essential knowledge and performance areas for rehabilitation counsellors who obtain certification or accreditation are as follows: medical, psychological and economic aspects of disabling conditions; legal, societal and technological influences on rehabilitation; rehabilitation services and service delivery systems; principles of human behaviour; occupational counselling and job placement; coordination of vocational rehabilitation services; and client assessment and counselling techniques.
There are established skills and competencies for rehabilitation counselling. The Canadian Association of Rehabilitation Professionals is a self-regulating body that follows a clear set of guidelines, standards and ethics. The accredited rehabilitation professionals who receive this designation are bound by these guideline standards and ethics. CARP also promotes a certification process through the United States through the Commission of Rehabilitation Counselor Certification. This designation is the Canadian certified rehabilitation counsellor, also known as the CCRC. CARP Ontario is investigating government regulation at this time in order to enhance public protection and professional accountability of our members.
I hope I've described CARP and our organization as well as our specific requirements very well. I'd now like to move on to what we think of Bill 99.
We applaud the government's efforts to reform the workers' compensation system in a fair and cost-effective manner. We are particularly pleased to see the continuation of the loss-of-earnings benefit, which ensures that workers injured on the job will not face financial penalties for injuries or illnesses beyond their control. It also encourages employers to re-employ injured workers to their best potential. We all realize that the best method of rehabilitation is to try to get the worker back to the pre-injury position. We are also very pleased to see the promotion of health and safety in the workplace and the prevention and reduction of the occurrence of workplace injuries as mandates of the Workplace Safety and Insurance Board.
We have some concerns with Bill 99 and we've included them on an individual basis in appendix 1 of our submission. I will go through the summary of our concerns, which are basically with the areas of access of health care, return to work and labour market re-entry.
CARP Ontario believes that accredited or certified rehabilitation professionals are uniquely equipped to ensure that workers receive appropriate health care, return-to-work and labour market re-entry assistance based on our professionals' demonstrated education, experience, skills, competencies and body of knowledge, which we've gone over earlier in this presentation. Both CARP and the CCRC regulate the accredited rehabilitation professional and certified rehabilitation counsellor designations, ensuring that workers and the public are protected from unprofessional practice while promoting the safe and early return to work of all rehabilitation recipients.
The first area of concern was access to health care. We have some concerns with the wording of the legislation regarding the individual's choice of health professional. We fear that the wording as set in this particular draft could be misinterpreted. We would just like to ensure that the government takes another look at these areas so that the individual maintains the choice of health professional as outlined in the Regulated Health Professions Act, 1991.
Another concern is with the change from the term "reasonable and necessary" to "necessary, appropriate and sufficient." This concern is that the new terminology could be much more restrictive than in the current terminology. Again the board staff must have the necessary knowledge and experience to appropriately determine what is required to return a person with a physical or psychological disability to work. For this reason we strongly recommend that professionals involved in this decision-making at the board level be accredited or certified in rehabilitation.
The limitations on mental stress and chronic pain entitlement as they are set out are another area of concern to CARP. As rehabilitation counsellors, we have extensive experience working with workers with mental stress and chronic pain. Based on our experiences, we implore the government to further consult with medical and psychological experts in the development of appropriate, comprehensive and fair regulations to ensure that workers experiencing chronic pain or mental stress receive appropriate care based on individual needs so that they may successfully return to work. I think a real concern here is that the regulations protect the individual adjudication of each and every policy rather than setting out very strict guidelines or policy at the board level.
Another concern with access to health care is the definition of "health care practitioner." Here we ask that the government incorporate rehabilitation counsellors into this definition. We've gone over our body of knowledge, where we talk about the rehabilitation counsellors requiring essential knowledge of medical, psychological and economic aspects of disabling conditions; occupational counselling, job placement skills, client assessment and counselling techniques; as well as the coordination of vocational rehabilitation services. Inexperienced or unqualified rehabilitation counsellors may further complicate the return to work or labour market re-entry process, which would in turn increase the claim costs and emotional or psychological costs of disability to the worker.
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Ontario rehabilitation counsellors currently have two bodies through which they may pursue accreditation or certification, both CARP and the CRCC, and both of these bodies are self-regulating.
Our other concern is with return to work and labour market re-entry. Again, we strongly endorse the legislated use of certified rehabilitation counsellors or accredited rehabilitation professionals to ensure that workers obtain the highest-quality service in the return-to-work and labour market re-entry process. Both designations are regulated by professional bodies. CARP is at this point in time actively pursuing regulation through the government of Ontario because of the risk to our clients, the injured workers, and the public.
Enclosed as well in your submission today are some excerpts from the Commission on Rehabilitation Counselor Certification regarding the Canadian certified rehabilitation counsellor designation. We also have enclosed our code of ethics, which does indeed address our standards of practice. We've enclosed the national accreditation information as well as the draft revised accreditation policies and procedures, which will hopefully be used by the Ontario College of Rehabilitation Counsellors.
That's pretty much it for our presentation.
The Chair: Thank you very much. We have about two minutes for questioning per caucus, beginning with the NDP caucus.
Mr Christopherson: Thank you for your presentation. I appreciate it. Three points I'd like to raise with you, and I'll raise each and then ask you to respond, if you can.
The first one is that you make a very strong statement, and your organization is respected, so it carries weight, when you say in your presentation that you're applauding the government for reform that you state is fair. Given the fact, as I'm sure you know, that employers are receiving a 5% reduction in the premiums they pay while injured workers receive 5% less income, I'd like to know how you square what's happening to injured workers with your use of the word "fair."
Second, you state that you're pleased to see the promotion of workplace injury and occupational disease prevention in the legislation. I wonder if you could point out to me specifically where you see that happening.
Third, you mention specifically that occupational disease is a particular concern of yours and you're supporting the legislation in that context, yet I'm sure you know that the Occupational Disease Panel is a world-renowned organization in terms of its ability to find causal links between the workplace and injury and disease and even death that workers face. How would you square this government's move to fold that up, which has also been criticized worldwide, with your support of this bill?
Ms Hobbs: I think those are very difficult questions and I'll do my best to answer them. We're speaking in a very generic form when we applaud many of the initiatives that are introduced in the new legislation. We've not commented on a lot of the issues that you've raised specifically because we believe that they are beyond our scope of practice or our area of expertise.
The clients we deal with are workers who are injured. When we talked about the mandate to prevent occupational injury and disease, although we did not necessarily see it in the act -- sorry, it was in the preface to the act -- we would like to see more concentration to prevent workplace injuries so that we do not have to then work with the workers; it's prevented altogether.
We did not comment on the benefits. We feel there are other groups in a better position to comment, although financial counselling is indeed a component of rehabilitation counselling. We would just have to work to ensure that our members are better equipped to deal with the reduction in benefits the workers receive.
As for the Occupational Disease Panel, there again we would defer that to the occupational disease experts.
Mr Christopherson: Can I just say to you in closing, because I'm out of time, I had a feeling your remarks would be somewhat like that. I think most injured workers, given the professional field that you're in, would have seen you as allies of theirs, and I want to tell you that if that were your intent, you've done a disservice to yourselves because the way you've presented this and what you've said in here gives them support. They can quote it and use that as part of their argument that, "See, this was fair." In reality, there's not an injured workers' group or a union organization or anyone who cares about working people who believes for one second that Bill 99 does anything other than hurt injured workers.
Ms Hobbs: I would care to make a brief rebuttal in that we do believe we are servicing the workers in requesting that they have access to regulated professionals to ensure that they're getting the best quality of service out there and to ensure that they are safeguarded from bad practices on the part of the employer, for instance. We did not go beyond our scope of practice and we feel that was the best method of servicing the workers.
Mr O'Toole: Thank you very much for your presentation. I won't try to polarize the input. We receive and listen to all input; hopefully, on the other side, they do. We've heard from those who have different opinions. That's what the public process is all about. It would appear, if you don't accept Mr Christopherson's view of the world, then you're wrong. But there are those who see the world as a fair, balanced and reasonable place.
Mr Christopherson: Sure, from where you sit.
Mr O'Toole: As far as I'm concerned, we've had input from employer advisory groups and from the medical professions, and for the most part they have suggestions and they have criticisms as well as encouragement of the prevention and early return-to-work aspect of this legislation.
I won't go on because I've made this little pitch before, but I believe those are proactive parts of helping the injured worker and encouraging the employer group to get with the game, to modify the workplace, to accommodate the worker and to move forward progressively. That being said, I recognize that the issue of stress and chronic pain has come up a couple of times. You've dealt with it in the health section of your presentation and you've dealt with it very tastefully, I think.
Recognizing your group represents both personnel types and health care professional types -- right? In the section, if I could quote, it says here, "For this reason we defer the issue of the medical-psychological to those experts, but state that in our experience" -- and you work directly every day, you're not a politician, with these people, real clients, real individuals, real people, you're not --
Interjection: A bureaucrat.
Mr O'Toole: Exactly. Real people -- "chronic pain is influenced by social, emotional, cultural, motivational and many other factors."
Do you have any kind of guideline, because this is contentious, if it's admitted or not admitted. No one wants to deny what's real. What's not real is what you want to deny.
Mr Christopherson: You ought to get real.
Mr O'Toole: Mr Christopherson has demonstrated once again that if it isn't his way, it's wrong. You see, that's where they lose. I'm asking you, not Mr Christopherson. He has his time in the House, as is appropriate.
Mr Christopherson: And you cut that back too.
Mr O'Toole: I'm asking if you have any specific guidelines or other comments that you'd like to make with respect to that very sensitive area of stress and chronic pain.
Ms Hobbs: We've specifically deferred to the experts in this area. We are rehabilitation counsellors. We work with the end product, once chronic pain or mental stress have been diagnosed.
Mr O'Toole: How about the early return to work? Is that really something --
Ms Hobbs: Absolutely. It's been proven many times that expedient return to work will help you --
Interjection: Psychologically get a sense of self?
Ms Hobbs: Yes, you will avoid many of the chronic pain and mental stress problems through an early return to work, where it's handled appropriately. The studies show that the longer a worker is off work the more you start getting these other factors: psychological disabilities and chronic --
Mr O'Toole: Do small employers come to you for that kind of advice?
The Chair: Sorry, I think we should move to the Liberal caucus, please.
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Mr Patten: Thank you for your presentation today. The list of the modalities and techniques that your profession is involved with is quite extensive. This was raised a number of times by employer groups. They were saying that when you go beyond doctors and chiropractors, they are fearful for self-governing, self-regulated associations, because some practitioners are not members and they may not be bound by the ethics of the associations. What is your reaction to that?
Ms Hobbs: At this point there is nothing we could do, but that is why we are pursuing government regulation at this point in time.
Mr Patten: I noticed in your brief that you were pursuing that. Where is that at the moment?
Ms Hobbs: We're at the final stages of preparing the government submission and we're hoping that over the next six months to one year we will have an idea of whether we will be able to achieve regulation under the Ministry of Health.
Mr Patten: Of all the functions that you perform -- assessment and evaluation, diagnosis and treatment planning, vocational career counselling, individual and group counselling etc -- could you take one of those and elaborate a little bit in human terms about your case management functions? What would you be doing with an injured worker?
Ms Hobbs: The first step is the assessment and evaluation, looking at the worker's medical condition as well as medical restrictions and functional abilities, the job description, and identifying the best method of returning the worker to that particular pre-accident work if possible, or accommodating or finding alternative employment with the employer. When that's ruled out, then we start looking through the hierarchy of objectives that CARP has endorsed, which is similar to the previous workers' compensation hierarchy of objectives, in an effort to return the worker to the best work for them, looking at their medical restrictions and their work history. It's a long process and, again, it's done on an individual basis, but we always start with the initial assessment, looking at the worker's work characteristics, their medical condition and their abilities.
Mr Patten: You're all working through referrals from either the WCB or from a doctor. A patient can't come to you directly.
Ms Hobbs: A patient can come to us directly, but the practice is normally that --
Mr Patten: It's a referral.
Ms Hobbs: -- insurance companies pay for our services, as we do expedite the whole rehabilitation process and ultimately bring down their costs.
Mr Patten: Do you think Bill 99 places a greater emphasis on vocational training and rehabilitation than is there now?
Ms Hobbs: The way we see it they've taken vocational rehabilitation and broken it into two components, one being the return to work and one being the labour market re-entry. They are both components that we normally work through in the rehabilitation process. I hope that by placing the onus of return to work on the employer, it would expedite that return-to-work process, but there again, I would caution that certified professionals or accredited professionals be involved, because it is such a complicated process.
As far as training -- I believe you asked about training -- I'm confident that it will still be looked at on an individual, as-needed basis, because it's not required in the majority of rehabilitation case management.
The Chair: Thank you very much on behalf of the members of the committee. We appreciate your bringing your perspective from your association here today.
ONTARIO HOTEL AND MOTEL ASSOCIATION
The Chair: Our last presenter this mprning is from the Ontario Hotel and Motel Association. Would you come forward, please. Welcome. Please introduce yourself for the Hansard record.
Ms Ellen Fegan: Good day. My name is Ellen Fegan and I am the human resource manager for the Waterloo Inn, representing the Ontario Hotel and Motel Association. I want to take this time and opportunity to thank you for the invitation to appear before you today.
The Ontario Hotel and Motel Association members have supported and continue to support the workers' compensation system, but in doing so have recognized the need to correct a system that is badly in need of repair. The case for reform is undeniable. The WCB's unfunded liability has increased by 470% between 1983 and 1994. In dollar terms, it has gone from $2 billion to $11.4 billion. In the interim it has dropped slightly but not enough to give any comfort that the crisis has passed. Correspondingly, accident rates dropped 33%, while employer assessment rates rose 46%.
Over the past 10 years, each political party has attempted WCB reform on the basis that the system was in need of major repair. Despite these reforms -- the Tories in 1984, the Liberals in 1989 and the NDP in 1994 -- the unfunded liability continued to expand. This phenomenon has had the effect of putting at risk Ontario's workers' compensation system and with it the future wellbeing of injured workers.
It is perhaps worthwhile to look back to see why Ontario's workers' compensation system has come off the rails. One has only to look at the royal commission reports of 1950 issued by Justice Roach and of 1967 by Justice McGillivray.
Justice Roach said: "This act should be considered for what it is and was originally intended to be, a scheme by which compensation is provided in respect of injuries to workers in industry. It is not a system for dispensing charity. It is not special legislation for the purpose of elevating the standard of a group in society at the expense of another."
He went on to say: "I will have occasion to point out later that certain amendments which have been introduced into the act since it originally passed are really in the nature of social legislation and a departure from the original scheme and purpose of the act. The effect of the amendments has been to impose upon industry burdens which should be borne by society generally."
It is interesting to note that Justice McGillivray reiterated in his royal commission report that Justice Roach's comments were still valid. Bills 101, 162 and 165 have only continued to distort the system.
Our criteria for supporting the workers' compensation system have been and continue to be that it is affordable, sustainable and competitive. The current system failed on all three counts. We believe Bill 15 with respect to system governance and administration is now in hand. Uncosted and poorly conceived government amendments and expanded entitlements are being addressed in this legislation and, with certain amendments, we believe will meet the objectives.
Bill 99 is about restoring fairness and equity to the workers' compensation system. It is also about ensuring the system is sustainable into the future without jeopardizing the ability of the system to adequately deal with workers' injuries and employers' ability to contribute.
This legislation is more of an evolution and could best be described as the result of past governments' attempts to correct a system that everyone agreed was in dire need of fixing. Despite the rhetoric which seems to accompany every change in the system, I suggest you will agree the changes are better, or should I say fairer, for both employees and employers.
To truly achieve this notion of real fairness, Bill 99 needs some changes. They are not major but they are critical in our view to having the new legislation meet the test of fairness. I would be remiss in not mentioning our disappointment in the legislation not including the three-day waiting period, as New Brunswick has successfully introduced.
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Employers advocate rewriting the definition of "accident," specifying that "accident means" rather than "includes" and adding dominant causation language to strengthen the link between the disability and employment. Employers further recommended deleting the presumption clause, and replacing the "benefit of the doubt" principle with "balance of probabilities" and "real merits and justice."
The following proposed amendments are offered as a guide.
Definition of accident: "In this act, 'accident' means
"(a)a wilful and intentional act, not being the act of the worker,
"(b)a chance event occasioned by a physical or natural cause external to the worker, and
"(c) a disablement caused by the performance of work."
The areas that require amending are as follows:
(1) Wage loss, section 43: Bill 99 calibrates many of the shortcomings of the wage loss process, requiring benefits to be adjusted as the worker's circumstances adjust, a simple principle yet lacking, since wage loss was introduced seven years ago. However, Bill 99 confers extraordinary powers on to the board which may lead to a proliferation of appeals. For example, the bill allows the board to "deem a worker's earnings if" a labour market re-entry plan for the worker has been fully implemented, without defining what is meant by "fully implemented." The government's intentions are lost in this vague language.
(2) Duty to cooperate, section 40: A duty to cooperate for the worker and the employer is a positive innovation; however, much of this section is redundant and already covered under sections 41 and 43. We also cannot agree with the emphasis on fines which, it should be noted, runs counter to the government's own pre-election commitments in this area. The need for employment searches also cannot be supported, as this area is well covered under section 41. Section 40 creates additional and unending legal exposures for employers and needs to be rethought.
(3) Assessment rates, section 80: Bill 99 provides a very broad discretion to the board in setting individual company assessment rates. However, individual disputes are not allowed to proceed to the tribunal. Mistakes will occur in board judgement and therefore disputes must be allowed to proceed to the tribunal.
(4) Stress, section 12: Bill 99 removes the board's jurisdiction to consider claims for chronic occupational stress, which will open the doors for needless courtroom action. It would be better to set out, in very strict language, what the entitlement criteria are and have the board determine these cases.
(5) Appeals tribunal, sections 117 and 118: The appeals process needs reform. The method set out in Bill 99 is not appropriate, as it curtails the policy audit function of the board, for which we believe there is a need. We do agree their board should have control over the entire matter of making policy.
We suggest that where a decision of the tribunal turns upon an interpretation of policy and general law, and the tribunal is of the view that the present policy or the board's interpretation of the policy is incorrect, rather than have the tribunal apply what may be an incorrect or inappropriate policy, the tribunal must be required to bring the matter to the attention of the board of directors. The board would then be required to review the matter of policy and law within a certain time and advise the tribunal of the results of the review.
(6) Non-economic loss, sections 46 and 47: The simplification of the NEL process is appreciated. The drafting error in section 46(2) regarding maximum and minimum payments: As it now reads, the minimum for even a 1% NEL will result in a $28,545 payment. It is also suggested to extend the prescribed time for reassessment from 12 to 36 months.
(7) Special reserve fund, section 95: The second injury and enhancement fund has a very long and important history in the workers' compensation system in Ontario. Unfortunately, it has never been explicitly written into law and we believe now is the time and opportunity to do so.
With these amendments, we support the passage of Bill 99. They are required to ensure the successful implementation of the new act. We believe the package can then meet the objectives mentioned earlier: affordable, sustainable and competitive. More money is not the answer, as it has been tried and has failed. The best way to ensure that injured workers have a system in place that will provide the assistance they need is to ensure the passage of Bill 99.
The Chair: Thank you very much. We have about three minutes per caucus and we'll begin with the government caucus, Mr Ouellette.
Mr Jerry J. Ouellette (Oshawa): Thank you very much for your presentation. Have you had an opportunity to review the functional abilities form?
Ms Fegan: No, sir.
Mr Ouellette: It is a medical form that's filled out by a doctor which is supposed to aid in the placement of a worker. It gives the limitations of what the person can and cannot do. Do you have any problem with an employer receiving this medical information?
Ms Fegan: No. Indeed, I agree that the focus should be on what they can do.
Mr Ouellette: On the same basis, as MPPs we receive, or at least I know I do, a lot of individuals coming in with WCB claims and problems. One of the areas is the transfer of information where there seems to be some area of difficulty. On the same premise that the employer receives the information of the employee, do you think then it's only fair that the employee would receive a copy of the information or the form 7 that's being filled out and submitted from the employer?
Ms Fegan: Yes, I do agree. In fact, they do now receive a copy. The employee receives a copy of the form 7.
Mr Ouellette: It's just a matter of bringing all the information together, because that's one of the biggest problems we find. There's so much information about what's being said about the claim and by the time it comes forward, what one party has said is not clarified. If it had been clarified at the beginning, I think there would be a reduction in the number of appeals that come forward.
Ms Fegan: If the employee fully understands what is required of them -- I think sometimes the employer is sort of left with the burden of the process. Perhaps the employee needs also to understand that their input and their follow-up and their information and their visits are a necessary part of the process.
Mr John L. Parker (York East): How much time have I got?
The Chair: You have about a minute and a half.
Mr Parker: I wanted to reflect just briefly on your comment off the top that previous governments have also attempted reforms of the legislation. I think that's a point that's somehow gotten lost in some of the discussion we've heard already today, that this is a challenge that other governments have faced and have tried to grapple with.
I'll give you a quote: "We have to get the unfunded liability under control because it threatens the whole system." That is from the NDP labour minister in December 1994.
She also said, "I have to take my responsibility as minister seriously and keep the interests not only of injured workers but of businesses which fund the system in consideration." So it's a balance that must be struck whenever a government deals with this legislation, and it's a balance that this government is trying to strike.
We've heard already this morning that some people on one side of the question are dissatisfied with the reforms that are brought forward in this piece of legislation. I'm interested that you have made quite a strong case that there are other opinions on the other side of the spectrum, as it were, which are also dissatisfied with this legislation. You've put forward something of a wish list from the standpoint of the employers and indicated that you are dissatisfied that this legislation doesn't reflect many of the features that you would like to see in a perfect bill.
I guess my only comment to you is that it is the role of this government to listen to all sides of the debate and to try to find the right balance in establishing the final bill. I thank you for your contribution to that process today.
Ms Fegan: We appreciate the opportunity to do so.
Mr Patten: I have one comment and a question, related somewhat to Mr Parker's remarks. I think the objective is to provide balance, but it's also to provide fairness and it's also to provide support for people who are injured from working.
My question to you is, when you talk about fairness, and let's put it in the context of employers and workers, most employer groups come in and they say: "We're great. It's terrific." Why not? This legislation favours employers, and much of that is at the expense of injured workers.
For example, they have less benefits now, a 5% loss in benefits for short-term disabilities. Long-term disabilities as well, there's economic loss there. They have less benefits and over time would be considerably poorer. We're not talking about big pensions here. We're talking about very humble pensions; less opportunity for appeal; less eligibility for workplace injuries because they're not easy to identify, so, "Just throw them out"; no representation of workers in terms of labour being represented on the board; and less independent research concerning workplace diseases or workplace injury situations.
So I ask you, when you talk about restoring fairness, where?
Ms Fegan: I think that when you have balance, what you determine to be fair is exactly that. I don't think it's been unfair to the worker. I'm not going to respond --
Interruption.
Ms Fegan: I'll go back to the group that I represent and I'll have them address the issue more specifically to you.
Mr Patten: Thank you.
Mr Christopherson: I want to tell you, I just seethed through this whole presentation. This is outrageous, and it's outrageous that Mr Parker would continue along the theme of this and talk about fairness and balance. What did he say? "We want to hear from everybody." You're the people who won't let anybody speak, for God's sake. You're the one who shut down the process.
I've just had it up to here with people who come in and refuse to offer up their point of view and leave it at that. If they disagree with me and the others who are here, that's fine, but to come in here as you have done -- I'm just so outraged at this, that you mention on one page alone -- you talk about fairness --
Interjection.
Mr Christopherson: Shut up and let me speak.
In this document you've talked about fairness. At least three different times you said, "Bill 99 restores fairness." Then you say, "It's fairer for both employees and employers." Then you said, "To truly achieve the notion of real fairness, Bill 99 needs more changes." You want to give a three-day penalty. That's going to make it even more fair for injured workers.
Then you go on at the very end and say, "The best thing that can happen to injured workers is to pass Bill 99." That's outrageous. If you want to come in and say, "Yeah, injured workers need to be shafted" because you buy the big lie about the unfunded liability, that's fair game. But to come in here and say that this is fair and balanced is bullshit and I just resent the fact that you would say this to these people.
The Chair: Mr Christopherson, please. Please, your language.
Mr Christopherson: I do not have a question. I will certainly listen to the presenter's opportunity to respond to my comments.
The Chair: Mr Christopherson, please, I ask you to think about the language used in this committee hearing.
I thank you very much for your presentation today. It is appreciated.
Ladies and gentlemen, that concludes our presenters for this morning. We will reconvene this afternoon at 1:30.
The committee recessed from 1214 to 1334.
CHAMBER OF COMMMERCE OF KITCHENER AND WATERLOO
The Chair: Our first presenters this afternoon are representatives from the Kitchener-Waterloo chamber of commerce. Welcome; if you would introduce yourself for Hansard.
Mr Jim Berner: The Chamber of Commerce of Kitchener and Waterloo has over 1,300 member firms and 2,000 reps and would like to thank you for inviting us to address you today. I am Jim Berner and I am the chair of the federal and provincial affairs labour subcommittee.
The chamber supports the thrust and direction of Bill 99 to promote economic growth and job creation in Ontario by reducing the social and economic cost of workplace injury and illness.
Health and safety in the workplace by the prevention and reduction of workplace injuries and occupational diseases must be the major thrust of the bill. One thing that should be made clear is who will have responsibility for enforcement; who will be responsible for safety audits; how duplication will be avoided between the Ministry of Labour and the board; and who is to be charged with the overall jurisdiction in health and safety.
The definition of the term "accident" should be defined. It needs to address a clear, decisive relationship between an accident or condition and work before compensation is to be issued. If it is not dealt with in the regulations, it should be an item to be considered for future reform.
We support the changes requiring both workplace parties to file claims with the board, limiting claim filing to six months and requiring worker consent for release of functional abilities information. Return to work holds the key to future workplace organization and must become a more common practice in any employment relationship.
The chamber believes no final compensation decision should be awarded until all relevant information from the workplace parties and health care practitioners has been received and considered by the board decision-maker. Also, "relevant information" should be defined to avoid potential conflicts.
Functional abilities information for return to work is necessary for work planning and actual job accommodation. We feel the board, the legislation or the regulations should address several issues to do with functional abilities, including timeliness, penalties for delaying authorizations or the release of the functional abilities information, certification and standards for providers of the information.
Bill 99 has taken positive action by prohibiting compensation for mental stress except for traumatic and acute events, limiting compensation for chronic pain and reducing benefit levels. Lower benefit levels, a reduction in the indexation formula and cost-sharing for the retirement income loss award are appropriate to assure future benefits for injured workers and financial viability of the system.
Consideration should be given to lowering the level to 80%, which runs in tandem with the thinking of employment income legislative changes in the lowering of EI benefits.
We wish to emphasize our belief that Bill 99 should include an explicit provision which indicates that pre-injury income should not be exceeded by compensation benefit awards, including CPP disability allowance, and that economic circumstances alone should not allow compensation to be extended.
Return to work is an obligation and an opportunity for both workplace parties to cooperate and work together to accomplish this goal, However, possibly through the regulations, this issue of cooperation must be extended to cover all stakeholders including unions, the board and the medical community.
The matter of "contact" should be broadly interpreted. Contact is required to determine both fitness and a timetable for the return to work and it must ensure that it does not constitute harassment.
Subsection 40(5) "may" authorize the board to contact the workplace parties, and no time frame is specified. It is suggested that this intervention or contact should be reviewed and clarified as to intention and time frame, again possibly through the regulations.
Loss-of-earnings and benefit awards: We're concerned by changes that Bill 99 would make to NEL, the non-economic loss procedure. We suggest that the employer participate in the selection of the medical assessor or in the request for a second assessment.
The Workers' Compensation Appeals Tribunal: It is necessary to address the relationship between the board and the tribunal, which have been in conflict since section 86(n) was enacted with the birth of the WCAT.
The chamber believes that the tribunal must continue to be allowed to hear all issues of dispute for appeal purposes. However, policymaking should be under the exclusive jurisdiction of the board. Policy must be the basis upon which all decisions are made for compensation. How can a decision be made if no policy exists? How can consistent decision-making be assured in the absence of clearly written policy? The tribunal must apply and be bound by board policy. Where no policy exists, the issue must be returned to the board for adequate consideration, with the board of directors being charged with overall policy development and dispute resolution authority. The jurisdiction of the tribunal should not allow for the establishment of a separate workers' compensation regime.
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Bill 99 provides for performance-based experience rating, which we hope will focus on claim cost issues and cost and frequency issues. The government's and workplace parties' commitment to health and safety and return to work will ensure the continued success of experience ratings.
We noted that Bill 99 is silent on issues to do with a second injury fund, a statutory inclusion we have supported for some time as a fundamental principle of an insurance-based compensation program. The second injury and enhancement fund, SIEF, used by the board is essential in distributing the real cost of a claim and for ensuring equity in experience ratings. We continue to believe that SIEF should be codified in the statute or addressed in the regulations.
As a postscript, we would like you to know that we have reviewed the comprehensive submission of the Employers' Advocacy Council. Rather than plagiarize their comments, we'd like you to know that we support the recommendations they have put forth. Thank you. Questions?
The Chair: Thank you very much. You've given us about four minutes per caucus for questioning and we'll begin with the Liberals.
Mr Hoy: I have one question I'd like to ask you. At the very beginning, when you were talking about injury and illness prevention and that duplication should be avoided between the Ministry of Labour and the board and who is to be charged with the overall jurisdiction in the health and safety area, what is your opinion of who should have that authority?
Mr Berner: I think that's for you guys to decide. I don't care who has it just so long as one party looks after it. If the Workers' Compensation Board looks after it, they shouldn't have another appeal field back to the ministry, and vice versa; if the ministry looks after it, then it's out of the board's hands. Someone should look after workplace health and safety and it shouldn't be split between the two is what we're trying to say. It should be one group.
Mr Patten: I have a couple of questions. We had, over the course of the hearings, various people testify or share their views: medical practitioners, researchers, different practitioners. It seems that most employer groups or chambers are happy that the compensation for mental stress, except in a very limited way, is done away with. I gather people feel there was abuse of that in some manner.
Mr Berner: Abuses of what, sir?
Mr Patten: Of claims for mental stress.
Mr Berner: I see, yes. Go ahead.
Mr Patten: We had two research doctors here yesterday who I thought were quite illuminating in their presentation, which suggests that we're probably in a better position today to be able to pin down the justifiable cases that really warrant support. We also had testimony from some legal counsel that the removal or limitation of mental stress and chronic pain was probably going to place the new board in a position of being challenged by the court or taken to court under the Human Rights Code. I wondered if you were aware of that, and if you are, what your response would be.
Mr Berner: You said they'd take them to court under the Human Rights Code.
Mr Patten: For being discriminatory when in fact --
Mr Berner: Are they discriminatory unless it's work-related? If it's work-related, yes, but that has to be proven. We've addressed that somewhat. I think it's here somewhere.
Mr Patten: It's on the top of page 2.
Mr Berner: It's limiting compensation for chronic pain, so chronic pain isn't out, and mental stress except for traumatic and acute events. I would think that would prove it's work-related. Workers' compensation is a work-related fund. It's not for anything that you might be --
Mr Patten: I'm not challenging that. I'm assuming everything is work-related. I make that assumption about the justification of any claim. I'm saying that the definition as proposed under the bill, I'm advised, is weak and it won't stand up because there are many situations where people suffer. We had, for example, the registered nurses' association. You can imagine registered nurses -- and I know this from personal experience -- working in intensive care in the children's hospital, for example. They circulate those nurses because the tragedies they experience with children and infants and babies who die and this kind of thing is so stressful --
Mr Berner: I'm not arguing that. If it's work-related -- you're saying, "How do you determine whether it's work-related?"
Mr Patten: I'm challenging that it's limited to "a traumatic event." In fact, many situations are a series of events that happen, so you can't necessarily pin it down to any one single event. It may be the situation overall or it may be a series of events and not simply --
Mr Berner: It's your call; just as long as it's work-related is what we're concerned about.
Mr Patten: I agree.
Mr Bisson: A couple of questions: I'm intrigued yet again by your position on the removal of the ability of WCAT to address issues of policy. Do you do a lot of work with the compensation board in the sense of bringing cases through the board either for employers or injured workers?
Mr Berner: No, I'm with the chamber of commerce.
Mr Bisson: I'm just wondering. You have members in your chamber of commerce. As an MPP I represent employers of the province with WCB as well.
Just so that you understand, the problem I have is with what people seem to be missing on the question of WCAT. The number of claims I as a member will bring to WCAT in a period of a year is very small. Very few claims actually go to WCAT. The ones we bring to WCAT are brought before the tribunal for one of two reasons: One is because there's been an inability of the board to interpret or a mistake by the board in interpreting policy, so you go to WCAT if you can't win it at the appeals level. But I would suggest to you that it's the minority of cases I'll bring to WCAT. More times than not I'll go to WCAT because the policy is unclear on an issue and the adjudicator or the appeals officer cannot make a decision in favour of what is clearly a workplace incident because the policy doesn't quite address it. It's like you have to meet four criteria and you only meet three, or whatever the situation might be.
When I hear the chamber of commerce and other employer representatives coming before us and saying we should take away the ability of WCAT to make decisions on questions of policy, you're really taking away the ability of the system to react to what's going on in the workplace. If you have a lot of people upset with this provision, I need you to understand that you're saying the politicians will decide what's compensable -- in this case the Tories, the next time us or the Liberals -- and then workers, or you as an employer, will have absolutely no say about what happens. I'm not prepared to give the NDP, the Liberals or the Tories that kind of power. That's my basic problem, so that you understand where we're coming from.
I want to get to the second point, which is the question of limiting compensation for chronic pain. Again there seems to be a lack of information here. The number of people who are receiving chronic pain in the community of Timmins, the injured workers I represent, are few and far between. I can tell you in the last seven years I've probably dealt with a total of five claims that dealt with chronic pain, of which only one has ever been awarded. What people fail to realize is that the threshold for getting a chronic pain entitlement is quite high and that there are criteria you need to meet. It is difficult enough as it is to get, and the board does not give it frivolously, let me tell you.
The reason for the policy is that in some cases the injury is incompatible with the organic finding. In cases like that, the board sets policy through WCAT to recognize that sometimes you just can't explain what's wrong with somebody. All you know is that the symptoms demonstrate that there is a relationship between the pain and the workplace but you can't explain it by an organic means. So chronic pain was established.
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When the chamber of commerce and other employers come before us and say, "Get away from chronic pain," you're again telling me, put the power in the hands of the politicians to decide who gets compensated for what. Leave all common sense out of it. Leave the doctors out of it. Leave the specialists out of it. Leave the employers out of it. Leave the injured workers out of it. Let the politicians make the decision.
Mr Berner: That may be your view; it's not mine. I think you should have a ruling that somebody's got to be responsible for policy.
Mr Bisson: That's what WCAT is.
Mr Berner: You can't have WCAT and the board responsible for policy.
Mr Bisson: No, no. You have to understand how the process works. WCAT makes the recommendation to the board based on their finding, and then it's up to the board to decide in the end if they're going to implement. If not, you have judicial review. There are checks and balances in the system, and I put to you that it is not frivolously used. The board and WCAT take their responsibility quite seriously, and you don't win a WCAT decision out of thin air. You really have to have the evidence to win. You need to understand.
Mr O'Toole: Thank you very much, Mr Berner, for bringing the point of view of the chamber to our attention. You, along with many other presenters today, have seen that there are changes, and changes are needed. That's the history we've heard from almost all presenters. All presenters, including you, have recognized the need for change, right from 1984 through the previous governments' two attempts and our attempt as well. We're here to listen, and your input is important and valuable.
We've heard on a couple of occasions -- I'm referring to part I, the definition section. The whole purpose, the philosophy of the bill, is the prevention section and the promotion of prevention, and also the return to work: early intervention, the return to work, ameliorating the workplace to meet the needs of the worker.
I've heard repeatedly the need to redefine the "accident" definition. Of course you know that in the reform attempted by the Liberals in 1989, and in Bill 162 and Bill 165, they did not deal with the definition of "accident." I've heard repeatedly that there's a need to redefine the definition of "accident." Perhaps you could give me your impression, knowing this is a double-edged sword: "work-related" and "accident"? Could you give me a couple of response lines on that, please?
Mr Berner: My response to that is basically what we say here, that "accident" should be defined so that everyone realizes it has to be work-related. You can't trip at the cottage or something like that and claim a back injury that didn't happen at work. It has to be work-related.
Mr O'Toole: This is unresolved. That's why it hasn't been defined, because first of all it must be clear that workers are entitled to work-related accident compensation. No one here in the government would dispute that. But there is a concern, and I'll just relinquish the rest of my time to Mr Maves. He may have a further question along that line.
Mr Maves: On subsection 118(2) with regard to the WCAT and the board policy, Mr Bisson I think just said that the majority of the cases he takes to WCAT are where there are no board policies. The act says at 118(2) that if there is no board policy in existence, "the tribunal shall hear and decide the appeal without considering a board policy." I think that still gives the WCAT quite a bit of leeway to decide cases where no policy exists, which he said the majority of his cases were.
What I wanted to get to you about, though, is that you have said on return to work, "This issue of cooperation must be extended to cover all stakeholders, including unions, the board and the medical community." Subsection 40(5) says the board may become involved with the return to work. You think as an employer that it's also quite important that the board be involved in some manner with the employer and the employee on return to work?
Mr Berner: Only if they have to. Who wants the board sticking their nose in if you can get that worker back to work? The main thing is to get the worker back to work. But the board may authorize contact, and if so, there should be a time frame, is what we're saying. It's got to be within, what, six months, say, a year.
Mr Maves: With injuries where people are back to work the next day or in a few weeks, which are very common, I can understand why the board wouldn't necessarily have to be involved in that.
Mr Berner: I think what they had in mind here is return to work where someone was injured and has to come back into a different job, probably. That's probably the concept we're trying to get here. If that's the case, if there is to be contact it should be within a certain time frame after the accident, I suggest.
Mr Maves: Last, in terms of the second injury and enhancement fund that the board has been using, you feel that's worked well in encouraging employers to hire previously injured workers? Do you think that's been successful?
Mr Berner: I think it's worked, but we feel it should be codified or put into the regulations.
Mr Maves: If it's not codified now and the board uses this fund, what makes you think the board will no longer adopt the use of the fund?
Mr Berner: I don't think they won't. It's just that Bill 99 is silent on the issue.
The Chair: Thank you very much, sir, for coming before us this afternoon with your presentation. It is appreciated.
ONTARIO TRUCKING ASSOCIATION
The Chair: I now call representatives from the Ontario Trucking Association. Good afternoon, gentlemen, and welcome.
Mr Michael Burke: Thank you, Madam Chair and members of the Legislature. My name is Michael Burke, and I am the manager of government relations with the Ontario Trucking Association. With me today I have Mr Paul McNamara, president of Transfreight McNamara, a for-hire trucking company based in Ayr, Ontario, and a local employer. Also with me is Mr Michael Mitchell, vice-president, consulting services, L.A. Liversidge and Associates, a management consulting firm specializing in workers' compensation issues and also a member of the Ontario Trucking Association.
I'd like to provide you today with OTA's perspective regarding Bill 99. We appreciate the opportunity to appear before you.
The perspective OTA has taken reflects the fact that Bill 99 itself is not radical, as its opponents like to suggest. Rather, it reflects a responsible and effective maturing of the last three somewhat incomplete attempts by each of the previous three governments at reform of the Workers' Compensation Act.
Moreover, Bill 99 does reflect a change in direction and provides the foundation for long-term and meaningful reform of the workers' compensation system. One of its strengths is that it will result in increased employer and worker accountability, coupled with a higher expectation for worker-employer-board cooperation.
Bill 99 effectively calibrates many of the shortcomings of the existing wage-loss model, requiring benefits to be adjusted as the worker's circumstances adjust. While this may sound like a simple principle, it has been lacking since the wage-loss model was introduced seven years ago. In addition, OTA is encouraged by the changes to the benefit delivery model, which addressed many of the shortcomings of the present future economic loss process.
However, this does not mean that Bill 99, as it is currently drafted, is without problems. The OTA committee looking at Bill 99 has identified some drafting errors that if not addressed could have the potential to undermine the government's reform goals as well as underline some existing inequities. Moreover, we are concerned with the longer-term impacts that Bill 99, as currently drafted, would provide the WCB.
I'd like to talk, before I go into the detail, a little about the organization I belong to and the importance our members place on the issue of workers' compensation. I feel it's relevant to this discussion. The Ontario Trucking Association is a founding member of the Employers' Council on Workers' Compensation, which has been extremely active with respect to workers' compensation reform for over two decades, and we're very pleased to provide our comments and suggestions for improvement to Bill 99, the workplace safety and insurance reform act.
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The effective functioning of the Workers' Compensation Board and issues relating directly to that agency are of primary importance to OTA, a trade association that represents approximately 800 trucking and trucking-related companies, Mr McNamara's company among them.
The association maintains a committee that deals exclusively with workers' compensation matters. It is through the efforts of that committee that OTA strives to ensure that injured workers receive effective treatment, rehabilitation and eventual reinstatement through workers' compensation programs. In addition, it is equally important to OTA that the workers' compensation system is sustainable from an economic perspective and does not place an unfair burden on the employers, who are ultimately responsible for sustaining it. In essence, what we support and what we would like to see maintained, that we're hopeful Bill 99 will eventually ensure, is a balance of interests.
Without far-reaching fundamental reform, that objective clearly will not be met and is in jeopardy. With an overall unfunded liability in excess of $10 billion, with the prospect within the trucking industry of higher assessment rates in spite of a declining accident rate, which I'll speak to later, we have been pessimistic in the past that real reform, designed to ensure the sustainability of the system, will emerge. In a labour-intensive industry such as ours, facing increased international competition, workers' compensation is a critical factor in the survivability of many of our members. Ultimately, jobs are at stake.
Where are we at and where are we going? OTA is very encouraged with the commitment this government has shown so far with the desire to deal with the crisis in workers' compensation as a priority early in the mandate. With the passage of Bill 15, the first small steps were taken. However, unless assessment rates continue to fall and the upward pressure that's been on them the last few years is reversed and the drain on the system is abated, workers' compensation will continue to be a negative economic influence, and that ultimately means jobs will be in jeopardy. Those jurisdictions with a lower cost base will have a significant competitive advantage, and this is particularly true in a labour-intensive industry such as trucking, and might I add, an industry that operates across borders.
Trucking is a labour-intensive industry. When you look at information provided by Statistics Canada, they'll tell you that wages account for --
Mr Bisson: Very low-paid.
Mr Burke: Very low-paid but very high-wage. We've got to do something about the rates. We're looking at about a 32.5% total operating cost for Canadian motor carriers. It's the single largest component of cost. For some carriers the share of wages can reach as high as 50% of total costs. That being the case, payroll taxes, including workers' compensation premiums, impact labour-intensive industries such as trucking much more harshly than capital-intensive industries.
Let's have a look at the cost implications. In 1996 the trucking industry rate group was the largest single-industry rate group contributor in terms of total assessment dollars paid to the WCB, accounting for over $144 million in 1996. Significantly, the lion's share of that assessment, $80.4 million, or 56% of the total assessment, was received from only 241 trucking companies out of a total population of 7,165 trucking firms that report to the Workers' Compensation Board.
For 1997 the average assessment rate applied to business in Ontario was approximately $2.85 per $100 of payroll. However, for the trucking industry, the 1997 assessment rate is over two and a half times that average: $7.16 per $100 of payroll. It is a big and significant cost of doing business.
Also, the assessment paid per worker has risen equally dramatically over the last decade. For 1997, at the maximum assessable earnings ceiling, every trucker would account for about roughly $4,000 in assessment, up from approximately $2,100 in 1987.
Obviously, a big part of keeping costs down is keeping accidents down and operating in a safe environment.
Interjection.
Mr Burke: There's are lot of different aspects to safety. We'll stick with health and safety today, but I appreciate your interjection and I appreciate the plug.
Throughout the years, the trucking industry has worked diligently to improve worker safety, inspired in part by the new experimental experience rating program. The results speak for themselves. Between 1988 and 1995, the trucking rate group saw its lost-time injury rate decline from 11.8% to 5.69%, a 52.8% reduction. Moreover, the number of lost-time accident claims in the same rate group were reduced by a full 53.4% during that same period, or from 7,555 down to 3,509.
What's been occurring while this has been happening? In Ontario, until the last two years, the trucking industry and other industries have experienced rather significant rate increases. In 1983 Ontario employers accepted a 15% rate increase, followed by 10% rate increases for another three years. At the time, the board informed employers that these efforts would retire the unfunded liability by the year 2014. In 1989 the WCB stated in its annual report that "if the 1989 accident performance is maintained over the long term" it could result in the elimination of the unfunded liability seven years earlier, by the year 2007.
Not only has the 1989 accident performance been maintained, but as demonstrated a little earlier and in much more detail in our submission, you will see that certainly from the trucking perspective, that accident performance has improved significantly. However, as we commonly understand the situation now, the status quo would ensure that the unfunded liability could rise to between $14 billion and $18 billion by the year 2014, when we were assured back in the early 1980s that it would drop to zero or be retired at that point.
All Ontario businesses, including trucking, feel a little wary. We're a little concerned. We don't feel it's an overstatement to say that we could very well likely be facing a financial crisis. As is blatantly clear, we certainly don't feel this is the result of a lack of funding.
The situation is critical. The cost of workers' compensation cannot simply be passed on to employers through ever-increasing assessment rates. Corporate competitiveness is critical to maintaining jobs and our standard of living. This is one program that is in urgent need of reform. The WCB cannot rely on assessment rate increases to resolve its financial difficulties.
This takes us to Bill 99. It takes us to our potential solutions and change in direction, so let's look at where we're going from here.
Overall, as I indicated earlier, we support Bill 99 -- there are some changes needed -- provided that those changes occur. We view Bill 99 as an intelligent refinement of the last three major legislative reforms and find the themes we introduced over the last decade or more to be respected but improved upon.
We are disappointed by some of what was not in Bill 99. We are disturbed that the three-day waiting period was not introduced and that those appropriate changes were not made to the definition of "accident." Both of these were long-standing Progressive Conservative Party commitments, and we encourage the government to honour those commitments. I would also add that those provisions have been enacted in other Canadian jurisdictions as well. We certainly wouldn't be blazing a trail in this respect.
With respect to the bill itself and what changes we'd like to see and what we'd like to see implemented:
Section 40, duty to cooperate, on pages 22 to 25 of our submission: While OTA supports the emphasis on cooperation, much of section 40 is redundant and is already covered under sections 41 and 43. The OTA rejects the emphasis on fines, which runs counter to the Progressive Conservative Party of Ontario pre-election commitment. We do not support the need for employment searches, as this is well covered under section 41. Section 40 creates additional and unneeded legal exposures for employers.
Section 42, labour market re-entry plans, our page 28: The labour market re-entry process will work for larger employers; however, we are concerned that time on claims may actually increase for medium and smaller employers unless the need for board resources is defined early.
Section 43, wage loss benefits, pages 29 to 43: While we support this intelligent refinement of the benefit model that addresses many of the shortcomings of the present FEL process, new pitfalls are introduced. Most important, the meaning of "fully implemented" under subsection 43(3) must be defined. It is suggested that "fully implemented" be defined as meaning once it can be considered that an "impairment of earnings capacity is no longer significantly greater than is usual for the nature and degree of the injury."
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In addition, either in the act, regulations or in the memorandum of understanding between the board and the minister, an incrementally progressive management authority must be called upon as duration in benefits increases.
Sections 46 and 47, non-economic loss, pages 47 to 50: OTA appreciates the simplification of the NEL process. It is necessary to correct the drafting errors in section 46(2) regarding maximum and minimum payments. As it now reads, the minimum for even a 1% NEL would result in a $28,500 payment. In addition, we recommend extending the prescribed time for reassessment from 12 months to 36 months.
Section 80, employer assessment rates: As I alluded to earlier, this is obviously something that is of great concern to us and our membership. Section 80, subsections (4), (5) and (6), provides a very broad discretion to the board in setting what would appear to be prospective assessment rates. Disturbingly, individual disputes are not allowed to proceed to the tribunal as the lawful jurisdiction of the tribunal is, in our view, inappropriately curtailed. Inevitably, errors in board judgement will occur. The tribunal must be provided with the legal jurisdiction to consider disputes arising from the application of these sections. To ensure government control and authority over the board's employer taxing methods, the methods for section 80(4), (5) and (6) must be prescribed in regulations.
Section 95, special reserve fund: The Ontario second injury and enhancement fund has a very long and important history in the Ontario workers' compensation system. Though it has never explicitly been written into law, we feel that it should be.
Section 118, tribunal jurisdiction: We cover that on pages 64 and 68. While OTA agrees that reform of the appeals process is called for, we disagree with the Bill 99 changes and offer a more appropriate model. Specifically, we disagree with the manner in which the tribunal's powers have been curtailed and we wish to see the tribunal continue with a policy audit function, while still ensuring board of director control over policy.
We recommend that where a decision of the tribunal turns upon an interpretation of policy and general law, and the tribunal is of the view that the present policy or the board's interpretation of the policy is incorrect, rather than have the tribunal apply what may be an incorrect or inappropriate policy, the tribunal must be required to bring the matter to the attention of the board of directors. The board would then be required to review the matter of policy in law within a certain time, perhaps 60 days, and advise the tribunal of the results of the review. The tribunal would be bound to follow the board's direction.
This model ensures that the tribunal plays an important role in auditing board policy over the board of directors' routines, total control over the workers' compensation policy. Again, we spell that out in some detail in our submission.
Jurisdictional considerations for the Workers' Compensation Board, section 4: It's important that the WCB remain mindful of its reach with respect to the exercise of all the powers prescribed in section 4. In the event that the WCB attempts to apply that section in its entirety, the federally regulated undertakings, it could face a jurisdictional challenge. In the past the Supreme Court of Canada has issued a decision confirming what provincial boards do not have the legal jurisdiction to exercise the same authority over federally regulated employers. Consequently, to avoid any potential confusion, section 4 should be amended to reflect the true mandate and powers of the WCB.
The last point I'd like to speak of specifically deals with the whole issue of owner-operator status determination. The issue of owner-operator status determination for the purposes of workers' compensation is something to which the trucking industry has devoted much time and energy. Quite frankly, it's an issue that's very near and dear to our hearts.
OTA has worked diligently to ensure that the basic principle of owner-operator, that being independence, be recognized and respected by the WCB. This was not always the case. OTA would wish to ensure that any amendments to the Workers' Compensation Act respect the fact that owner-operators in the trucking industry are independent from the carriers and should be regarded as such for the purposes of workers' compensation.
OTA is of the view that any requirement for a year's advance payment should not be left to the sole discretion of the board and should not apply to independent operators and companies that are both paying and playing by the rules. Legitimate clients of the WCB should not be hindered or disadvantaged in the board's efforts to collect assessment.
In the event that assessment payment methods were to become unfair or excessive, the result could be to discourage owner-operators from participating in the workers' compensation program. This work would be counter to the objectives of the board and certainly to our association.
If I could just elaborate briefly on that -- I don't know how much time I have. One minute? All right. This is something that the OTA has negotiated and dealt with the board on for a number of years, and that was the whole issue of owner-operator status. For many, many years, it was very subjective and up to the interpretation of board adjudicators. Finally, in 1993, we were able to come up with an agreement whereby there was a common understanding of what constitutes independence. Since then, independent operators have been allowed to seek their own file number and individually cover themselves within the board.
It was our intention at the time that, once the rules were clearly understood, more people would be brought into the process. We understand the board has a problem with independent contractors, but if you're going to start to make these people pay up front for everybody, you have the potential to drive them out of the system, which is counter to both the board's ultimate objective and desire and ours.
With these changes, the Ontario Trucking Association provides its full support to Bill 99 along with its commitment to ensure the successful implementation of what we consider to be pivotal legislation. Without these changes, Bill 99 may actually impair the government's ability to attain its workers' compensation reform objectives.
Thank you for your time and your indulgence. Everything we have to say is spelt out in some detail in our submission. I encourage you to have a look at it. Thank you once again.
The Chair: Thank you very much. You have give us some homework and we will diligently take careful note of these suggestions. Thank you for your contribution this afternoon.
ONTARIO HOME BUILDERS' ASSOCIATION
The Chair: Our next presenters represent the Ontario Home Builders' Association. Good afternoon, gentleman, and welcome. Be so kind as to introduce yourselves for the Hansard record.
Mr Byron Scott: Good afternoon, ladies and gentlemen. My name is Byron Scott, and I'm chair of the Ontario Home Builders' Association health and safety committee and also safety manager for a large diversified building company based in Toronto. With me today is OHBA staff member Mr Andy Manahan, who is director of industry relations.
I should note that OHBA is an active participant in the Employers' Council on Workers' Compensation and we support the remarks that ECWC made to this committee in mid-June. We believe that the proposed reform package will benefit both workers and employers and that some of the rhetoric surrounding this topic has not been helpful in implementing the necessary changes. We support the direction enunciated by the minister to focus on accident prevention, to enhance workplace self-reliance and to improve return-to-work performance.
The Ontario Home Builders' Association represents over 3,400 member companies which are organized into 34 local associations across Ontario. Our members produce over 80% of new housing in the province.
The residential construction industry has made great strides in improving its safety performance. The Construction Safety Association of Ontario reported at its spring annual meeting that despite the regrettable increase in fatalities, a record low lost-time injury frequency was established in 1996, In fact, the LTI frequency has been reduced 11 years in a row.
Ontario also continues to outperform every other province in construction safety. Unfortunately, however, our industry is saddled with a much higher assessment rates than all other provinces except for Quebec, and, in fact, the home building rate group witnessed a 22% annual increase in its standard assessment rate for 1997 to $9.56 per $100 of assessable payroll. The median across Canada is $5.77 for 1997. Target rate predictions for 1998 indicate low-rise residential rates may increase an additional 21%.
Benefit levels: There are a number of reasons for this anomaly, including a benefits system which typically provides compensation as high, if not higher, than the worker's pre-injury take-home earnings because of the current practice of 90% net replacement rate. We believe that the proposal to reduce benefit levels should be modified somewhat so that for short-term disablements, the worker receives 80% of net average earnings. This would not be an unreasonable return-to-work incentive and would be an appropriate way to reduce overall duration and cost of claims. However, longer-term disablements should be compensated at 85% of net, as Bill 99 proposes.
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Future economic loss and non-economic loss: The benefits structure was amended in 1990 under Bill 162 when the dual award system was introduced. While we have no major qualms with the concept, there are cases where FEL pension payments continue to be made even when the material circumstances of the worker have improved. What I mean is the worker has returned to work and has suffered minimal wage loss. Situations like this invite other workers to abuse the system.
A few cases of unwarranted compensation might not result in a major financial burden, but when there is a systemic overcompensation, this creates a tremendous burden for the WCB and the supporting employers. Since these FEL pensions are locked in after a final review five years after the date of initial determination, we are only beginning to feel the true impact of FEL. The first wave of these FEL pensions became locked in last year, and eligible workers will continue to be paid until age 65.
Between 1990 and 1996, construction was essentially in a market trough, and one of the characteristics is high unemployment. Workers who were physically able to return to productive work did not have this opportunity. This is a major reason why the proportion of costs which are attributable to FEL are much higher in construction than other industry sectors. We predict that these costs will continue to grow, even with the positive changes which are being contemplated under Bill 99.
It should be added that when benefits are so generous, there is little incentive for workers to return to work even if work is available. We understand that early return to work is one of the major objectives of Bill 99 and we fully support it.
Return to work: As previously indicated, when construction activity was at a depressed level during the early 1990s, there was less opportunity for gainful employment so that workers remained on compensation longer than they normally might have, whether it was in a union environment or an open shop. This obviously increased overall system costs and resulted in injured workers being on compensation longer than they should have been.
We have reviewed the brief submitted to this committee by the Council of Ontario Construction Associations and the Provincial Building Trades Council on developing a return-to-work regulation for the construction industry and agree with the thrust of their proposals. In construction, return to work is problematic because projects and specific tasks performed by subcontractors and their trades are short in duration. We have, in the past, suggested that a credit, through our experience rating program, be given to a non-accident employer who offers modified work to an injured worker. While this may add a small degree of complexity to the CAD-7 program, it would encourage return to work in our cyclical residential construction industry.
In addition to encouraging greater cooperation in return to work between employers and workers, there needs to be a stronger link with, and perhaps incentives for, the medical-rehabilitation professions to facilitate timely return to work.
I will now turn the balance of the presentation over to Mr Manahan.
Mr Andy Manahan: I'm going to talk about the three-day waiting period now. OHBA has been advocating the implementation of a three-day waiting period in Ontario for a number of years. For example, in March 1995 we told the Royal Commission on Workers' Compensation that this approach should be investigated: "There needs to be more time to assess moderate injuries and arrange modified work in consultation with the medical practitioner before the case becomes a lost-time injury and the experience rating incentive is lost." When there are relatively minor circumstances that may require medical attention, the possibility of a lost-time injury diminishes the frequency incentive that is part of CAD-7.
Unfortunately, we understand that the Minister of Labour has rejected the notion of a three-day waiting period for three reasons. We will cite the comments made by the minister at the ECWC conference almost two months ago and then provide what we believe are logical answers and/or solutions to the minister's concerns.
First, the minister stated that, "There is no compelling evidence that a waiting period by itself has any significant impact on workers' compensation systems."
OHBA's response is that while the statement by itself may be true, OHBA received correspondence from the chair of the New Brunswick Health, Safety and Compensation Commission, which is appended to this brief, and the letter states, "The impact of the waiting period has been significant, but cannot be examined independently from the other legislative changes which took place in 1993" in New Brunswick. "We are unable to unwind all these changes into single components." This program is viewed as a success in New Brunswick because of its role as a gatekeeper to the system, and the commission continues to use a three-day waiting period.
The second point the minister makes is, "It penalizes workers who are legitimately injured, particularly workers whose duties expose them to danger such as police and firefighters."
OHBA responds that the New Brunswick commission, as part of its consultation process which began last year, has heard that emergency workers should not be subject to a three-day wait while in the line of duty. By this fall, the commission will be making recommendations with regard to legislative change for injuries sustained by these workers, and we don't see any difficulty with an exemption being created for certain workers.
Another solution that OHBA would put forward is to adopt a voluntary three-day waiting period which employers may decide to use.
The third point that the minister made in June is that "such an amendment would have required inappropriate intervention in collective bargaining relationships, since the benefits waiting period, to be effective, would have required a prohibition on negotiated top-ups."
OHBA responds that we believe that if the government is able to facilitate an orderly transition for public sector workers in the complex area of hospital and school board amalgamations and mergers, then surely this aspect could be handled relatively easily.
CAD-7: We believe that financial incentives or penalties have proven to be a useful method to influence site safety through the internal responsibility system. In construction, a separate experience rating program was created, and this has proven to be an effective way to encourage accident prevention. In fact CSAO confirmed in its 1993 annual report that CAD-7 "has played a major role in reducing Ontario's lost-time injury rate." CAD-7 has been so successful that there has been a slight off-balance compared to the board's other experience rating program, NEER, which has a much larger off-balance, and this is because the board has in fact underestimated our industry's ability to reduce its rate of lost-time injuries.
What is required is a way to make the rebate potential more meaningful for small construction firms. We understand that the board of directors of the WCB will be meeting tomorrow in Ottawa to discuss a proposed small employer experience rating program. These discussions are most welcome, but unfortunately there has been limited communication with the construction industry as to how to make this program work most effectively. The analysis which the board staff recently showed us on August 1 lumped non-construction, or the NEER rate groups, in with our industry, and we requested more specific data. Again, we have a letter that was jointly submitted by the Council of Ontario Construction Associations and the Ontario Home Builders' Association and submitted just yesterday to the board, and Glen Wright in particular.
Without going into great detail, the attempts to achieve greater return to work in Bill 99 might be thwarted by the simplified plan outline we have seen. That is, the new rating system which will determine a firm's rebate or surcharge status will be based solely on claim counts rather than the current combination of frequency and costs. I should add that this is a relatively easily understood system for employers in the construction industry. We would suggest that incorporating costs, while somewhat more complex, would result in greater equity and better potential for return to work. A system where one LTI results in a neutral status, that is, does not result in either a rebate or a surcharge, will negate our attempts to achieve return-to-work objectives because the costs of one injury, and perhaps even potential FEL costs, will not be as great a concern for an employer.
Finally, fraud: OHBA fully supports the steps that have been taken by the board to stem fraud, whether it emanates from employers, workers, physicians or even board staff. We applaud the board's recognition of this serious problem and the approach which will be taken to send a clear message that fraud will be punished. In the long run, this will enhance overall system health and will allow the board to assist those injured workers who truly need compensation. Again, the role of the medical profession is critical to the success of fraud prevention efforts, and we trust that the board will continue its efforts to improve communication with this community.
The new name for the board, WSIB, may not roll off the tongue as easily as WCB, but it is symbolic of a fresh start for this institution.
To conclude, we support Bill 99 with the modifications that we have suggested. We urge the committee to help expedite this reform process so that the changes can go into effect by January 1, 1998.
Byron Scott and I would now be pleased to answer your questions.
The Chair: Unfortunately, there isn't time for questions, but we do appreciate your offer.
Mr Manahan: I thought we had five more minutes.
The Chair: You're absolutely right. I've been doing this too often, I guess. I sincerely apologize. You do have five minutes and I'll extend it by a minute because of my error so that each caucus can question you. We'll begin with the government caucus.
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Mr O'Toole: Just a quick question; I'll share my time. You mentioned in a couple of places in your presentation the NEER and CAD-7. You also talked about a credit system for those other employers that may take on an injured employee because the job site may be vacated or whatever. Do you think, in the experience rating system, whatever we call it, the return-to-work performance should be part of the NEER or the formula? Is this really what you're leading to?
Mr Scott: What we anticipate is that, unfortunately, jobs don't come up in sync with the accident problem. We thought we'd try to get the industry to be proactive, and that whenever they're filling a position that would be suitable for an injured worker, they think of the injured worker first and try to get these people employed and off the workers' compensation expense.
Mr O'Toole: It could be a NEER credit for another employer.
Mr Scott: What we anticipate is that return-to-work will be mandatory and this way you have a credit. If you have the unfortunate circumstance of having an injured worker you can't accommodate, you've already got a credit for having done so.
Mr Maves: Just quickly, on the three-day waiting period, you spent some time on that. I would add to the minister's statement that, with police and firefighters, there are probably a lot of jobs that are dangerous. When someone gets an injury I don't see how it's fair to penalize them for having that injury, for three days. That's why I didn't support that myself. Also, isn't it a bit of a disincentive for employers, if you have a three-day waiting period, with regard to accident prevention because it relieves the employer of the costs of short-term claims?
Mr Scott:. It's part of the mechanism of CAD-7 in construction. This is why we're attuned to that. A lost-time injury of course means a large hit on the rebate, particularly for a large employer. We think there should be a reasonable assessment period for a minor soft tissue injury so that the physician has time to assess it; there is time for modified work to be organized without penalizing the employer to the extent that happens with the CAD-7.
Mr Agostino: I would ask you about one provision of the bill and that's the part that will have workers apply directly to WCB themselves once an injury occurs in order to begin the process of the claim. In your industry -- I know from the people I represent -- it probably would have a higher than average number of individuals whose first language would not be English, who have difficulty reading or filling out these type of forms or going through the process.
In my own riding I have many Italian and Portuguese construction workers who would have a difficult time with the language barrier. Do you not see that as a barrier to many of the workers who would be involved in your industry, that change that would then force individuals to have to begin the process of the claim on their own and may discourage or make it difficult for some of those people who put the wrong information down, which may delay or even hinder their claim? Do you see that as a problem? Would you recommend that this be changed to make it easier for the workers who'd be in your industry?
Mr Manahan: That's an excellent question. In fact, we recognize that through some of the health and safety training we're trying to do through the Construction Safety Association. We try to cater some of our programs to non-English languages. In terms of filling out forms and so forth which may be in English, it's my understanding that the board already has in place a number of staff who could help out if you have a non-English-speaking person who calls up the number. They do have forms which are in different languages as well. I don't foresee that as being a major problem, although I'm not aware of all the details of the administration with the board.
Mr Agostino: Do you not think it would make it easier for your workers, from a process point of view, to keep that portion of the system the way it is to avoid that difficulty, an injured worker having to call WCB saying, "Help me fill out my form on my injury?" It just seems like a bizarre system they would have to use to even begin a claim. I just see the workers in your industry would be affected tremendously by this particular change, where now you can go to the doctor and begin the process at that stage and those types of things.
Mr Scott: I see it as a way to curb claims that seem to come out of left field. What employers should be doing is sending in the form 7 the way they always have and then, as I understand it, the worker will be sent the forms and then he must respond in order to start the process going from there on.
Mr Christopherson: Thank you for your presentation, gentlemen. You state in your second paragraph that you "believe that the proposed reform package will benefit both workers and employers and that some of the rhetoric surrounding this topic has not been helpful to implementing the necessary changes." Two questions: (1) What part of this reform package do you think benefits injured workers? (2) What part of what their representatives are saying do you consider to be rhetoric?
Mr Manahan: Perhaps the first thing that comes to mind is that the view over many years is that the WCB is something that can be tapped into. There have been a lot of publicized cases of fraud, of people abusing the system, and we said whether it's employers or workers. We believe that --
Mr Christopherson: Sorry, what percentage do you think are frauds?
Mr Manahan: I don't have the figures on that. Actually, Glen Wright, who we met with recently, said there are perhaps a lot more cases of fraud than they're even aware of.
Interruption.
M Manahan: If I could just answer the question, please. The long-term health of the Workers' Compensation Board is very important. If we're talking about rhetoric and trying to keep benefit levels to 90%, I don't think we can sustain the benefits to injured workers who are legitimately injured that we would like to. I think that's the biggest issue right here, right now. An unfunded liability of $11 billion is not sustainable.
Interruption.
The Chair: Order, please.
Mr Christopherson: Do you really think you'd feel the same way if there were $6 billion being taken out of your pocket by way of a 5% increase in your premiums and that being handed over to the injured workers behind you? That's exactly what they're facing. The members of your organization got a $6-billion gift and the people behind you got a $15-billion --
Mr Manahan: If you re-read our brief you'll notice that the construction rate groups have had increases of 22% last year and we're expecting another 20% increase this year.
Mr Christopherson: You were part of the average 5% cut, were you not?
Mr Manahan: No, we didn't get any cuts at all.
Mr Christopherson: You were excluded from all the other cuts that took place.
Mr Manahan: There was a 5% cut to the overall target rate, but that didn't affect us at all.
Mr Christopherson: You're not going to see a dime out of any of that.
Mr Manahan: No.
Mr Christopherson: Could I ask the research then, because that's new information to me and I'd like to have that clarified if you would. The second thing is, you raised the issue of --
The Chair: We are out of time.
Mr Christopherson: But you will ask legislative research to address that question, please.
The Chair: Yes, I believe that's been duly noted.
Ms Lorraine Luski: And the question is?
Mr Christopherson: The construction industry is indicating that they got no benefit at all of the 5% premium reduction. That's news. I would just like to get that documented if I could.
Ms Luski: I think Mr Maves has indicated you would get that information. Is that acceptable?
Mr Christopherson: Yes it is. When, Bart?
Mr Maves: By the end of the day.
The Chair: Gentlemen, I thank you. I do apologize again; it was not intentional.
WATERLOO REGIONAL LABOUR COUNCIL
The Chair: Our next presenters are representatives from the Waterloo Regional Labour Council, Local 1986, please. Good afternoon; welcome. Would you please introduce yourselves for the Hansard.
Ms Denise Carter: I'm Denise Carter; I represent Waterloo Regional Labour Council.
Mr Tom Rooke: My name is Tom Rooke; I'm president of Local 1986, Canadian Auto Workers.
Mr Bob Cruickshank: Bob Cruickshank, president of Waterloo Regional Labour Council.
Ms Carter: I will be doing the presentation this afternoon. I would like to thank all the committee members, especially since all of you are ministers of the Ontario Parliament. You were elected to represent over 10 million of the people who live and work here in the province of Ontario.
First, I would like to take this opportunity to assure Minister Witmer that our concerns as expressed here today, as well as this morning, are by no means a media circus event. These attempts to get the attention of the government of Ontario are real, genuine, true fears being expressed by the people she is elected to represent.
I thank you for the opportunity to speak for the thousands of working people who live and work here in the Waterloo region. Please understand that I'm not going to confine myself to the representation of those who are part of the current unionized workforce, but I will be speaking of those currently unemployed due to injury on the job and those who will hopefully be part of our economic future. I will be speaking of and for the people who produce the products that are created and that bring into being profit.
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Money and those that trade in money are not my concern, because money creates nothing but more money and then only through the efforts of workers. I would like to remind you, the ministers of the people of Ontario, that the purpose of the Workers' Compensation Act was twofold. Part one was the protection of workers, and second, the act was designed to save employers from being sued by injured workers. The proposals in Bill 99 diminish and in some cases eliminate the protections for workers in Ontario.
First, I would like to speak of the current act and some of the things we have found out about its application. Sitting behind me here in the orange shirt is Lionel Walsh. Lionel Walsh was the Canadian champion in small bore .22-calibre silhouette target shooting. As you can see, Lionel Walsh is fit in appearance. Lionel Walsh appears to be a healthy, working citizen. But Lionel Walsh is an injured worker. Lionel Walsh is a 60-year-old man who has put in over 45 productive years in the workforce. Lionel Walsh is a man who, except for injuries suffered on the job, would be a productive member of society producing products for one of our manufacturers to profit from.
But Lionel is about to lose his moderate home. Lionel Walsh and his family must exist on the $584 his spouse earns every two weeks as an attendant at a gas bar. Lionel Walsh has been told that because he cannot do so-called modified duties, duties by the way that were different but not modified, he no longer will receive compensation for injuries sustained on the job. The modified duties assigned to Lionel actually increased his pain.
Somebody at the WCB who was not a therapist nor an ergonomist decided, without investigating, that Lionel chose not to do the work assigned as modified duties, when in fact he physically could not perform the function. Now he is about to lose his house because he cannot work due to his injuries. Lionel's injuries consist of back, shoulder and forearm problems, all of which where sustained in the workplace. Lionel accepted the daily, hourly, continuous pain as the way he was going to have to live for the rest of his life, not just his working life, but how is he to accept the pain of the loss of total income that he now must suffer?
To emphasize the disgusting attitude of the employer in Lionel's case, I would like to make the situation absolutely clear to you. For 29 years of Lionel's working life, he lived and worked in Germany. To receive the disability pension he deserves from the German pension plan that Lionel paid into for 29 years, he must have the Canadian -- Ontario -- employer sign a notification that Lionel is no longer physically able to work.
The employer in this situation said, "No, we're not going to sign this form as things stand, but if you resign we will gladly sign the document." This very specific blackmail attempt was done to get Lionel off the company books and to ensure that the company's WCB experience rating costs would not rise due to his workplace injuries. Thanks to this employer, Lionel Walsh is to receive no money whatsoever until his 65th birthday. Lionel could not even meet the Ontario government workfare requirements, if he chose to.
I would like each and every one of you, the members of the committee, you, the ministers of our Ontario Parliament, to think about not being able to drive a car for more than 10 minutes without atrocious pain, think about not being able to keep physically fit after being a national champion, think about not being able to provide for your family after having been a productive member of the workforce for 45 proud years. And you think about loosing your home. Think about someone telling you you are not injured when you constantly feel the real, unimagined, excruciating pain. Think about having someone telling you that you cannot receive the benefits that you believe you rightfully should get.
Minister Witmer received a letter requesting help from Lionel Walsh. That letter was passed on to the very WCB person who had done nothing for Lionel throughout his ordeal. Think about actual, real and continual physical pain. Then think of the psychological pain that is now another ongoing result of WCB administrative practices or blunders. I invite any one of you, the committee members, to see either myself or Lionel after these hearings to understand and rectify this monstrous injustice.
The second situation I would like to speak to you about, although not so physically devastating, is even more of an administrative nightmare, or maybe just another blunder.
Ken Postill was a full-time employee of a major corporation, who followed the WCB rules and red tape as far as he could, but Ken Postill is still the loser. The accident that occurred was caused by Ken being assigned to a work area where a large, ungainly, 250-pound item was used that had to be moved. Ken was assigned alone, and being the committed employee that he was and knowing that the job could not be performed without the item being moved, he tried to move the item alone.
When the item was moved, Ken hurt his back seriously. The forms were filled out appropriately and the doctors were seen appropriately and Ken continued to receive his salary while recovering. The employer even admitted culpability, and you should be aware that the employer was a schedule 2 employer. Ongoing therapy was required including special massage and a back brace, all of which where paid for by the employer-paid supplemental health care plan until Ken retired.
The claim, for all that Ken knew, was accepted. How was he to know otherwise? You should know that Ken retired early because he was no longer able to perform his chosen profession. He was embarrassed knowing he could no longer do the job he had done for 20 years. Ken's personal pride in his ability to produce would not let him stay in the workforce with his co-workers while physically unable to perform to capacity. Don't forget that this injury was a workplace injury suffered directly because the employer wanted to save the salary of one employee for one hour.
The therapy is still required and a new back brace will soon be required, but Ken has to pay for this out of his reduced retirement pension benefits. Why? You might ask why, since the accident was reported correctly and the claim was accepted accordingly by WCB. It seems that because Ken Postill made no claims to the WCB for therapy or for back braces, the WCB decided, or maybe has a policy of closing files without consulting with the injured worker, in this case Ken. The employer supplementary health care plan had picked up the tab while Ken continued to work. If the WCB had called either the employer or Ken, they would have known that Ken's injury and therapy were continuous.
When Ken subsequently applied for compensation for his therapy payments he was denied. The WCB had decided this was a new and second claim without an accident. This was not the case. Ken had one accident at work that the employer admittedly was responsible for, and now Ken is not only paying with pain, but also must shoulder the heavy financial burden. Perhaps this additional weight does not cause any additional physical harm, but it certainly is having a major effect on his meagre retirement financial health.
The act now is not working for one of the partners of the initial act, that partner being the workers of the province of Ontario. We agree the act needed to be amended, changed, updated. This does not mean taking several steps back, several many, many steps back, for the workers you represent.
What would be expected is that the problems would be corrected. The changes needed should have simplified the system for the workers as well as employers, but instead the proposed changes are surreal. Although the two examples I've given you may be errors or administrative bungles, both of the situations would not be the exception under the proposed new law, but instead would be the normal method of employer operation.
Workers who labour to create, to manufacture, to package, to transport and to sell products that make the profit for employers will pay with their health, safety and pocketbooks for that privilege. Due to the blame the victim attitude that is encouraged by Bill 99, some Ontario workers will be maimed while others will die. Employers will of course be able to maintain low experience ratings, resulting in higher profits. Employers will not have to pay for the injuries, pain and deaths their workplace practices cause. The worker will pay.
The changes caused by the inclusion in law of Bill 99 will be negative to the workers of this region as well as the rest of Ontario. The changes will mean:
Industrial diseases of the 1990s will not be covered fully; stress and repetitive strain injuries, for example.
Industrial injuries of the 1980s will not be covered. Soft tissue injuries, as noted in the two cases I spoke of previously, are examples.
The reduction of the protection of unemployed workers with disabilities is by 75%. Who are the people hurt by this bit of magic? Only injured workers.
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Forcing injured workers into unacceptable operations or drug therapy: Only injured workers will feel this pain, and maybe forever.
The privatization of rehabilitation. Now profit will definitely be the real result of worker injuries.
Allowing only 50% of pensions for future injured workers: 90% of Ontario's workers have no access to company pension plans, so once again injured workers suffer.
The reduction of benefits from 90% to 85%: No one is fooled by this direct financial attack on the injured workers of Ontario.
The emplacement of arbitrary limits on chronic pain: When, suddenly, did the administrators develop an understanding of complete and continuing pain?
The elimination of independent appeals in conjunction with the elimination of worker representation on the appeals board: Now those vile injured workers will have no one to speak on their behalf.
Expecting injured workers to take jobs which are not available and then setting their benefit levels on that pretence that a job is available: This bit of smoke and mirrors once again is a direct attack on the wallets of injured workers.
Bill 99 is a vicious, mean-spirited attack on the workers of Ontario who have been injured while producing profit. Bill 99 is a corrupt and vulgar assault on the workers who will be injured while producing profit in the upcoming years.
By supporting Bill 99, you the members of the Parliament of Ontario, elected to pass laws that will be for the good of the people of Ontario, will be perverting that purpose. You will be looking out for the interests of corporations and not people, and certainly not working people. You, your children and your grandchildren as well will be hurt by this disgusting piece of legislation. The purpose is clear: Cut workers' benefits and reduce employer costs. Why? The $1-billion surplus of the last three years is already abhorrent. The $8 billion already in the savings account of the WCB is offensive. Again I ask, why? Enough should be enough.
I, on behalf of the working people in the region of Waterloo, implore the government, through the committee, to step back and revisit the devastating changes in the laws that are being replaced by Bill 99.
My children, my two little guys, are here. They're here because I wanted them to know that we spoke out against this bill that will decimate the WCB legislation we have in place. I don't want them to be able to say to me 10 years from now: "Where were you when the government of the day changed this legislation? Who decided that I would no longer be protected in my workplace, that getting insurance would be a hit-and-miss situation at the whim of my employer? Who made sure that making a profit at all cost was more important than my safety and protection?" I at least will be able to say to my children that I and many, many concerned people vehemently objected and spoke out against the new legislation.
I want to ask every one of you sitting on the committee, every one of the members of the Ontario Parliament here, whether you will be able to look at your children or grandchildren when they have been maimed in an industrial accident and say to them, "I was there, I heard and I still made the decision to ignore people's concerns with Bill 99 because corporations have to have greater profits."
You, the ministers of the people of Ontario, I suspect think that this will never happen to you or yours. I invite you to walk, if you can, in the shoes of Lionel Walsh or Ken Postill. Thank you for your attention.
The Chair: Thank you very much. We have two minutes remaining per caucus for questioning. We'll begin with the Liberal caucus.
Mr Hoy: Thank you very much for your presentation and the graphic stories of Mr Walsh and Mr Postill. I just want to make a comment. You mentioned that you wanted in the future to say you were here and spoke up against Bill 99. I applaud you and everyone else who has come before the committee in the past and present and will come in the future days ahead to speak up on the bill. I urge everyone, always, to speak up about the issues of the day.
Our party and the third party will no doubt be putting forward many amendments to this bill. During the noonhour break I was talking with my colleagues about amendments put forth by the opposition. They are not intended to make the government look bad or put them in a tough situation. They're made to help the people who are affected by the various pieces of legislation that come forward. We were hard-pressed to remember any opposition members' or parties' amendments being passed by the government. But we'll continue to do that and we appreciate everyone's concerns as they relate to Bill 99. Thank you for being here.
Mr Christopherson: Thank you for your excellent presentation. I noted as you were presenting this, on page 8, the second-to-last bullet point: "The reduction of benefits from 90% to 85%. No one is fooled by this direct financial attack on the injured workers of Ontario."
Yet all we have to do is hearken back to a couple of hours ago when we had that stimulating presentation by the Ontario Hotel and Motel Association, which has now become one of my favourite presentations for unique reasons, wherein they say, "Bill 99 is about restoring fairness and equity into the workers' compensation system." Remember, your comment is the one I agree with. No one is fooled by this, yet we see what I would characterize as Orwellian doublespeak. They go on to say, "I suggest you will agree that changes are better, or should I say fairer, for both employees and employers."
They close their presentation by saying -- get this -- "The best way to ensure that injured workers have a system in place that will provide the assistance they need is to ensure the passage of Bill 99." What would you say to those individuals and those who would buy into those statements?
Mr Rooke: Brother Christopherson, I think there is also one other important issue missing here. Right now when an injured worker returns to his pre-injury job, he's returned to work at compatible earnings. Under Bill 99 it says whenever it's possible to restore the worker's earnings. I think you also have to look at this: I work in the heavy metal industry, as Brother Cruickshank does, and we make about $25 an hour as press operators. If we get injured there, is that to say if there's a modified job down the street, that we're also going to be expected to come back to work at $7.50 an hour, where right now it's compatible?
I say to the hotel and restaurant presentation you're speaking to that they're wrong. It's injustice; it's not right. The people who work for this group went there to sustain a livelihood for their families, not to go be injured.
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Mr Christopherson: Did you see the reaction of some of the government backbenchers when you said how much you were making? God forbid working people should make a decent wage and have a decent standard of living in this province.
Mr Maves: Mr Hoy's comments are surprising. I believe that under the new legislation we just passed, some of the contents of your proposed bill were put into the government bill. I have been on bills where we have accepted opposition amendments.
I just wanted to say that RSI injuries are still covered under Bill 99 and I wanted to point out --
Ms Carter: Not fully.
Mr Maves: Any clinically proven RSI is still covered.
Ms Carter: Clinically proven.
Mr Maves: Right.
I want to talk to you about subsection 33(2). You have a statement here about forcing injured workers into unacceptable operations or drug therapy. That's come up in several cases. The subsection in question is 33(2), "The board may provide a special surgical operation or special medical treatment for a worker" and so on. There seems to be a lot of concern about that, but that is an existing provision. I just wondered, has that been abused in the past or is there something new about that that's causing fear? It is an existing provision. It's lifted right out of the existing act.
Mr Cruickshank: You have to understand companies. I work for a company that makes car frames and undercarriages. If you give thought to it, that's not what it makes; it's out to make money. It makes money on the rebates that workers' comp gives back. It makes money there. It makes money for me to go back injured rather than have lost time on the rebate system.
They talk about the premiums. I fell over an I-beam last Wednesday. I came out of that workplace at midnight. This arm is still not right. This arm didn't work and my knee didn't work. I called in the morning and I called in the afternoon. I couldn't get my clothes on. They told me: "We don't care. Bring your clothes. We'll put them on. We've got a job for you." I went to the doctor. The doctor said I've got no use of this hand, limited use of this hand, can't stand for long periods of time, and the pills I'm taking make me dizzy and actually make me go to sleep. They still have a job for me. Do you know why? They don't want lost time. They want their rebates.
You talk about the unfunded liability. Stop these rebates. You've paid more out in rebates than you did injured workers. Is that fair? You don't hear one thing of that from these hotel groups. You don't hear that part. It's from the workers. They take it off the back of the workers. If a company gets the right to send me where it wants to send me, it'll send me to the doctor who is going to do what they want to do.
Mr Maves: You still have the right to go to your doctor and the board doctor. This section on health care is an old section. I just wondered if you are aware of that.
Mr Cruickshank: The problem is that they won't believe it, and if they have the right to send you to another doctor, they're going to send you to a doctor who -- about injured workers, it's unbelievable in this province, in the 20th century, what's happening. I had a young girl who called me. She works in a place that was robbed. She was tied up. She asked, after she was untied, if she could go home. She phoned in the next day and said, "I don't really feel like coming in." Her employer said, "Fine, I'm not paying you because we have to pay somebody else to come in." So I said to her, "Why don't you complain to the Ministry of Labour?" She said: "My sister is going to college and she works there at the weekends. I'm scared that she may be laid off." Is that the Ontario we want in the 21st century? Is it? That's what they're going to get with Bill 99.
The Chair: Thank you very much then for your presentation this afternoon. It is appreciated.
KITCHENER-WATERLOO-CAMBRIDGE INJURED WORKERS GROUP
The Chair: I'd like to call representatives from the Kitchener-Waterloo-Cambridge Injured Workers Group, please. Good afternoon. We know this gentleman. You've appeared before the committee several times already.
Mr Karl Crevar: Yes, I have.
Mr John Sweeney: I've asked Karl to come up in case someone wants to ask a question. I have hearing problems.
The Chair: He'll help you if you have a hearing problem. That's perfectly fine.
Mr Crevar: That's why John asked me to be up here.
Mr Sweeney: Anyway, I can't hear.
The Chair: Would you introduce yourself, please.
Mr Sweeney: Yes, my name is John Sweeney,. I'm president of the Kitchener-Waterloo-Cambridge Injured Workers Group and regional vice-chairman of the Ontario Network of Injured Workers Groups.
I would like to make one comment. I noticed there is no local MPP here today. You would think the local MPPs would be here to listen to presentations by injured workers, by employers, by the labour movement. I don't see any local MPPs I know of, maybe with the exception of the Chair. It's Guelph, I believe? Anyway, I think it's a disgrace.
I find it an absolute disgrace that the Tory MPPs on this committee can sit there and pretend to be interested in hearing the injured workers of this province along with labour, employers, academics and numerous other interested parties make presentations on the most regressive piece of proposed legislation ever about to be enacted irrespective of the outcome of these hearings.
This legislation takes us back to the year 1914-15, approximately 80 years ago, when Judge Meredith first introduced the Workmen's Compensation Board. Employers were not exactly happy with the new act at that time, and ironically they are still not happy in 1997 about Bill 99. In 1914-15 the employers saved millions of dollars, and likewise in 1997.
As government members of this committee, you must be so proud of the fact that you are part of a bill which will devastate the lives of injured workers across this province, many of whom are living in poverty and daily uncertainty. Their benefits will be reduced by 5%; their health care benefits will be all but eliminated; vocational rehabilitation will be drastically reduced; and chronic pain will come under extreme scrutiny.
Attempts to be rehired into the workplace are virtually gone. What else lies in store for workers who are injured in the workplace or contract some form of industrial disease? There is very little left for this government to take away from some of the most vulnerable segments of this society.
Bill 99 is an employers' bill. As usual, we are unhappy with it. There is absolutely nothing in this bill that will benefit workers or injured workers. It was created to serve a series of employer and government purposes, to eliminate the mythical unfunded liability which the Harris government created as a crisis in the province. It is also being used by Harris. He's quoted as saying it was a barrier to offshore investment. Yet he returned from Asia with multibillion-dollar contracts, so he says or so we hear, along with his dear friend Mr Klein, the Premier of Alberta. If the unfunded liability was indeed a barrier, why were these contracts secured?
Occupational stress: Claims for stress will almost be eliminated. Section 12(4) of the proposed act makes it virtually impossible for workers to be accepted under occupational stress, the exception being workers who suffer from "an acute reaction to a sudden and unexpected traumatic event." Will policemen and firemen be denied because they expect exactly these hazards every minute of their working day? These issues will be settled by board policy, which will be the appeals tribunal.
Will construction workers or miners be denied claims for occupational stress? They also face adversity every minute of their working lives. Westray Mine in Nova Scotia would be a typical example.
Any injured worker who has dealt with the Workers' Compensation Board will tell you that they face the same problems of stress simply by trying to deal with the everyday treatment they receive from adjudicators and other board staff. They are treated like scum. They are verbally abused and many times threatened. They are not treated like human beings but as leeches, burdens on society and frauds. Occupational stress goes together with most accidents that occur in the workplace or any accident that occurs in the workplace.
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This new bill does absolutely nothing that will benefit workers in regard to occupational stress and trauma attached to everyday activities in any workplace, including MPPs.
Medical determination: 200 nurses will be or have been hired by the board. To do what? To make medical decisions? To determine when an injured worker is fit to return to the work place? To diagnose the medical condition of the injured workers? With all due respect to the noble profession of nursing, these decisions are not theirs to make. We have excellent MDs, orthopaedic specialists, vascular surgeons, psychiatrists and many other experts in the field of medicine. I am confident that the medical professions are capable of making such decisions.
If the board medical staff, including nurses, make the decisions, then injured workers will not be receiving unbiased and negative diagnoses, simply because the opinions will be coming from staff who are employed by the board and are paid by the same. This will create a situation where the results must favour the board or the employers. If not, the medical staff will find themselves joining the ranks of the 1.5 million unemployed in Canada as we speak.
If you had to make a decision whether to do as your employer bids or face unemployment, what choice would you have? A prime example of this no-win situation is the members of this Tory government. You either do as you are told or else. Many backbenchers in the government are gagged. They cannot express the concerns of their constituents under fear of reprisal from Mr Harris and company.
Injured workers under the present Workers' Compensation Act have had major problems with medical decisions made by unqualified staff at the board, decisions that are made by adjudicators, case workers and at times junior staff members, not by the medical staff.
Labour market re-entry: Deeming, which we as injured workers have fought to have removed, unsuccessfully, has received another tool to use against the injured workers. Paragraph 43(3)2 of Bill 99 states that if a labour market re-entry plan has been fully implemented, then the board shall deem post-injury earnings to be those set out in the plan. Therefore, even if everyone involved recognizes that the plan has not been successful, earnings will be deemed, and loss-of-earnings payments will likely become nil payments. This provision will create the absurd incentive for injured workers to insist that plans aim low, as an ambitious but unsuccessful plan would have devastating consequences.
How can this new program possibly be effective when we have the highest rate of unemployment in Canada at the moment? We have recent graduate students who cannot find employment. We have a major shortage of skilled labour. Where do we find workers? From other countries, as usual? I say no. Train injured workers to fill these positions. Create training programs that will give them the opportunity to return to their rightful place in society. Canada, unfortunately, has one of the worst records in the civilized world for failing to employ the disabled, which includes injured workers. It is a record that we all should be ashamed of. I have dealt with many injured workers who could be used to train others; for example, tradespeople, professional people, skilled people. Let's use them, not abuse them.
In Bill 99, subsection 33(3) states that if, in the opinion of the board, the health care benefits are costly, they -- the board -- may provide a special surgical operation for the injured worker. The object of this is to eliminate substantial payments under the insurance plan.
Imagine it, "If the injured worker refuses to have the surgical operation, we'll close their health care benefits." If a patient in the real world refuses an operation they are not penalized, yet this government sees fit to make decisions that, again, will have a devastating effect on the lives of injured workers.
This committee and this government must be made aware that Bill 99 is supposed to be about real people with real injuries. We have committed no crimes. We went to work one day and, in some cases through the negligence of greedy and selfish employers, were injured. Why is this government punishing us for our crimes? This committee should get it into their heads that injured workers are guilty until we prove innocence. Will Bill 99 eliminate these myths about injured workers?
This legislation is supposed to be about real people and real injuries. You are looking at an injured worker who on April 23, 1983, fell 280 feet from a cathedral ceiling. Two young apprentices who were working with me were killed. I hit a marble floor in the cathedral. You don't go anyplace when you hit a marble floor. Both hips came out at my shoulders, my eyes were up in my head, my ears were gone, my hair was gone, and every bone in my body was broken, shattered. It took the board two years to accept the claim, and today, in the last week, I'm still fighting with the board for the cost of 100 Tylenols a month, which amounts to $12. That's $144 a year.
You now could be sitting here, and with all due respect, the majority of this committee don't give a hoot about me or any injured worker. You just don't care. The government doesn't care. What do you report back to the government you report back to? What do you tell them? What you heard in Kitchener, what you heard in Sudbury or wherever? The presenter before me gave you a typical example of an injured worker. Is Bill 99 going to eliminate these problems? No way.
You sit there in judgement. Call it what you like. You just make the decisions. My life was devastated, still is devastated, but I'm here. Some people say, "You're lucky you're alive." Am I? I think my life is worth more than a few lousy dollars, to be honest with you. Anyone's life is worth more than that. I know in my heart that the government doesn't care. They don't give two monkeys about me or any worker who is maimed or killed on the job. The bottom line is money, money, money.
Why is the government using injured workers to eliminate the unfunded liability? The 5% reduction in benefits alone will save millions of dollars, yet Bill 99 will reduce employers' contributions by 5%. What purpose does this serve, really? Take it from the injured worker and give it to the employer?
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I presume the committee members are aware that the board paid out more in rebates to employers in 1996 than they actually paid out in workers' compensation benefits. It has been mentioned many times here this morning, and I'm sure in other places the same thing, that Dofasco in Hamilton gets about $2 billion in total refunds for being good boys or girls.
What is the financial crisis at 200 Front Street in the ivory tower? How can Mr Glen Wright be allowed to spend $70,000 on a new bathroom in a brand new-building that cost approximately $270 million? So he could have a smoke in his little bathroom? I find it absolutely disgusting that this government and the Tory members of this committee have only allowed a very small percentage of actual injured workers to make presentations before you at these hearings. That could be corrected. In Toronto, when the hearings opened, there was one, a fireman; in Thunder Bay maybe five, six, I don't know; two in Sudbury; in total maybe about 13.
Injured workers are the major stakeholders in this whole system of employers and injured workers. People tend to forget that and think the major stakeholders are the employers. Sure, they foot the bill. That was the agreement in 1914-15 in exchange for fair and just compensation. Did we get that? No. Bill 99 fails to have anything in it that will improve conditions for the injured workers of this province. As I mentioned, this bill is about money and to increase profits for the board and employers; nothing else.
Fraud and $10 million: I never thought I'd say this, but this could be one of the most positive sections of Bill 99 if it is implemented as a method of doing exactly what it calls for. In every system we have the users and abusers. The society we live in, that's the way things are. It's a major factor. We live in it and then we allowed it to erode rapidly. The WCB is no exception. My problem with this government's approach is that it seems to be to put more emphasis on the workers than all the other players in the system. I'm making reference here to the surveillance etc and this $10 million.
Many new Canadians left their homeland to escape atrocities, including surveillance 24 hours a day. They come to a new life in Canada, beautiful country. I thought when I came here in 1960 -- I think we had a Tory government -- it was beautiful. What happened to the Conservatives? Is this a new breed of Conservative we have? I'm concerned about the new Canadians. God help them when they get injured, because if the board decides on surveillance, they'll do it.
The surveillance crew is welcome in my home any day or any night to see how my evening or how my day goes at home, how I try to get to sleep. Put the cameras on me hanging from the ceiling suspended until my arms drop off to get some relief. They're more than welcome. It's worth $10 million to come into my house.
The abuse to the system among injured workers is in the region of 10%. Yet as I mentioned, all indications point to the injured workers as the major abusers. Is it not abuse if an employer fails to report an accident or incident? Is it considered -- this is fact -- abuse if an employer writes a personal cheque to a WCB staff member who happens to be a case worker for consultation fees for $2,000? That staff member cashed the cheque and put it in her pocket. In the interim, the WCB laid charges against the employer, which is found guilty of fraud. The board fines the employer heavily. The board staff member still works at the board. I call her up every so often and say, "Hi, how are you?" and hang up.
The Chair: I have to ask you to sum up, please.
Mr Crevar: You're running out of time. Read it; they have to hear it.
Mr Sweeney: I have problems with the legality of Bill 99 with respect to the Constitution of Canada. Although I'm not a lawyer, I find it rather odd and presumptuous of this government -- and dictatorial -- that Bill 99 has not been enacted as law and yet I find that at Conestoga College in Kitchener there's a course being offered under the title of Coming to Terms with the Workers' Compensation Reform. This course starts on September 23.
My question is: Why in hell am I sitting here pleading for injured workers' causes when we all know full well that the government members of this committee have no interest in what any of us have to say or what we have to tolerate from the WCB and this dictatorship? I can assure this committee that injured workers across the province of Ontario will still have the energy and the determination to do whatever it takes to prevent this regressive piece of legislation from becoming law.
Injured workers have been persecuted, abused, and driven into poverty by governments in the past. We survived because we are strong and we are a body of workers who share the same hardships and pitfalls of both governments and the workers' compensation system. We are survivors. Thank you.
The Chair: On behalf of the members of the committee, we thank you for your very eloquent presentation this afternoon.
Mr Crevar: Just on a brief point, only on a brief point, I noticed Mr Maves got somewhat upset when I came up here. I don't know why --
Mr Maves: How did you notice that?
Mr Crevar: I did, Bart. Mr Sweeney had asked me to assist him up here. I can assure you that when injured workers ask for any assistance to present to this committee, I will be here.
The Chair: Very well. Thank you.
BILL STUBBS
The Chair: I'd now like to call upon an injured worker. Mr Stubbs, please. Good afternoon, sir.
Interruption.
Mr Bill Stubbs: Good afternoon. Madam Chair, members of the committee and everyone else --
The Chair: Excuse me, you might want to just wait for a moment until it's a little quieter.
Interruption.
The Chair: Okay.
Mr Stubbs: I'd like to congratulate this government on attempting to try to straighten up the workers' comp mess. Other governments have had a crack at it. It's still a mess. Hopefully we'll get it right this time because the old story is, if you can't do it right the first time, you better have time to do it right some time. I think this is the thing I hear about the decisions in the board. We don't have time to do it right and then we're mad that it comes back again because it's going to take more time to do it right.
My name is Bill Stubbs. My background is that I had a work-related injury with permanent impairment. I tried to get out of this damn welfare trap by taking the George Brown workers' comp claims management course. Most of you will know that it was instigated at the initiation of Mr Wolfson and was killed in 1992-93 by Mr Di Santo.
During that program I was top in the class, top in the business division and won the Employers' Advocacy Council award for a social issue paper on workers' comp entitled Why Injured Workers Don't Go Back to Work. This is going to be part of that program, that paper. It's also going to be part of the paper I wanted to present to the NDP commission, which I didn't present.
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You would think that as a person taking courses for adjudication, doing well, I would get a job with the board. No way. I didn't get it. My friend who is a lawyer from Poland didn't get in. Sure, they gave him the test. He thinks in Polish. They gave him a time-limited test in English; guaranteed failure. They kept him out. Anyway, let's stop the negatives. I would like to do this from a policy perspective.
My experience: I have been an employer rep dealing with union injured workers. I've been a non-union injured worker rep. There is no difference between how those two groups are treated. They are both given a rough time. I have seen claims, cancer, abuse. Come in Monday morning, two minutes on a machine, "I've got strain." Yes, she got a strain from being thrown down the stairway. That was an approved claim. Cancer is an approved claim. A fellow being laid off is approved. The reason I'm here is to help make the system better and to market myself as a person knowledgeable in workers' compensation who would like to work. I have been unable to find a job anywhere, even in a one-year training program.
The purpose of the legislation -- I'll deal with the first two parts: Promote health and safety in the workplace, prevent recurrence of workplace injury and disease, and the return-to-work provisions. I will not go into the sections because other people have done that.
Let's talk about the prevention of accidents. We have three classes of accidents. The plain frauds: A husband throws a wife down the stairs. She can't work in the morning but she gets comp. Cancer, because the firm doesn't have LTD -- short-term disability. They have weekly indemnity, 15 weeks. Workers' comp is better. A layoff is common.
Mr Bisson: Excuse me, cancer from what industry?
Mr Stubbs: Non-work-related breast cancer.
We have preventable accidents. These to me are many of the repetitive strains. We'll talk about them later. We have the true accidents that we can't do much about. They are basically an act of God. I'm not going to talk about them. There's not much anybody can do. But the thing is, what can we do about the others which are preventable?
From a policy perspective, workers trade health and safety for wages. They trade health and safety in their plant for wages when they bargain. The concept here is danger pay, and this predates the legislation. If you work in a dangerous industry, you need more money for risk. However, in this instance, when these workers get hurt, they are covered by workers' comp. What ends up happening is that danger pay is built into their wages and is therefore built into their benefits, therefore those wages would be higher than if that section was removed. This is an inherent problem. We'll get into this later.
Piecework and automatic approval: 100% is usually acceptable average worker productivity. If you're producing at 200%, 300%, you're going to get RSI, guaranteed, just as well as you're sitting here. Yet these people are allowed to work at this level to get, in effect, professional wages for labourer jobs, and this is a policy perspective, so they reap the benefits.
Joint health and safety committees, one of my real pet peeves: There's no bona fide occupational requirement for being a health and safety member. What's the standard when they come out? Is it garbage in, garbage out? These people should be responsible for saying: "Hey, Joe, you're working at 300%. That's too fast. You're going to an RSI." That's my opinion. But they don't.
Then we go into fraudulent accidents. Prior to layoffs, abuse in the home, cancer, holidays, and as Glen Wright says, they go to Dr Summeroff, the winter ones go to Dr Winteroff, these cloud the statistics. They're an accident and the board cannot identify the fraud from the non-fraud. If you're going to evaluate this legislation based on accident frequency which cannot be objectively evaluated, it ain't going to work.
What's the solution? I think it's responsibility and accountability. If you are a party to this problem, allowing a high level of production which gives an RSI, you should pay. I don't care how you do it; this is what I believe. If I'm a labourer and I want to earn professional wages and I do it by destroying my body, I did it willingly. I had the choice.
Fraudulent accidents: I think the unions are responsible for an actual investigation and honest representation. No lies, no half-truths; honesty.
Let's talk about repetitive strains. The big problem is culture which promotes dependence. We have an injury out there designed to provide services for the people who are here and myself. There is no incentive to get me off the system, because with the revolving door at the board I get denied and I come back in a couple of years. I provide work for case workers. Case workers need work. No evaluation on returning to work, just the number of denials, how many claims are open. By the way, Workers' Compensation Board staff handle the same number of claims as consultants, and consultants are all bad claims, so don't give me the garbage that they work hard.
Another thing is that you can't attach my workers' comp benefits. I'm treated differently. Isn't that nice?
Mr Bisson: Pardon me, you can't what?
Mr Stubbs: Attach, sue. Isn't that great? Then there are handouts: worker adviser, injured workers' groups, the Industrial Disease Standards Panel, health and safety organizations, the whole darn works. Injured workers talk about SIF going to injured workers. Why not the money from those groups? All the safety organization has to say is, "Come up to a standard," because if you don't do something, some smart lawyer is going to say: "Hey, Mr Worker wasn't properly trained. He caused the accident, your problem, because it's your duty to make sure that organization comes up to scratch." Let the industry organizations fund the safety organizations, then there will be accountability. There is none now. It's free. Look at the big offices they have.
Let's go back to the return to work. That's culture, the worker. The worker must be willing. This is where we get into the concept of reservation wage, the level of wage at which the worker doesn't care whether he goes back to work or stays on workers' comp benefits. There's been research done on this subject. In an attempt to bring benefits more in line with the reservation wage, the benefits level was dropped by 5%.
If we look at 30-some per cent of the Ontario workforce which is unionized, there is a little factor in there called union wage differential which increases their wage versus anybody else. They also have more bargaining power, so they're going to trade health and safety for wages, whether it be production or -- "Well, Mr Company, we want more money." The company says, "I can't stand a strike, so I guess I won't put safety equipment on the machine this year." Then what happens? An accident. We knew it was going to happen. They bargained wages for safety and there was an accident. Then workers' comp comes along with big assessments, then they come along with penalties, then they come along with Workwell, you name it. Why? Because the company was dumb, and I agree, in paying extra wages. They should have used that money they would have paid in wages to provide their workers with a safe workplace.
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So what happens? In the end the company is less productive; lower net income. Financial people who manage the union's pension fund say: "Hey, this company is not doing very well. Let's pull their pension fund money out." No money for reinvestment, no money for safety, so they go down the tube. It's simple.
Mr Bisson: Thank God for the mutual fund manager.
The Chair: Please allow the presenter to continue.
Mr Stubbs: In other words, what happens here is that we have to do something to lower the wage-benefit level of high-wage workers, and I'm thinking of unions specifically and especially the construction trades, to a level which is comparable to other workers so it is fair.
Next we have the classification of workers who are willing but don't return to work. Their physical abilities are not there. That's a board problem. Their training was ineffective, like mine at George Brown College, because Mr Di Santo killed the program midstream. Had he killed it prior, yes, okay, I can buy that. I can't buy it in midstream, which means that I'm still unemployed.
Mr Bisson: What program was that?
Mr Stubbs: Workers' comp. claims management at five community colleges.
The next thing is their job, and in workers' comp lingo there's a thing called super seniority which injured workers have, which means they get preference on a job over a high-seniority one of, say, steward. "Well, this isn't fair." Just a minute. What can a company expect when they bring somebody like me on when, say, a health and safety person on staff screws up? That's simple. I'll put in a grievance, which has happened, and I tell Brenda Elliott, "Oh, that's wrong."
Are we near done?
The Chair: No, you're all right. You have three minutes left.
Mr Stubbs: So Brenda says, "Oh, well, I'm not going to do anything." I'm not employed. There was a grievance. I worked at a company. The union harassed me through the board, wrote letters, made a phone call every day. They didn't like what I was doing.
What did the board do about this grievance? Oh, I'm harassing the human resource manager. The board didn't say, "I'm going to take that to legal and see if it's a human rights issue," which it should have been as far as I'm concerned.
Organized labour: Organized labour basically has all the reps on the workers' side at the Workers' Compensation Board. Well, 60-some per cent of the workforce is non-union. "Who represents them?" "Nobody. You're right: Linda Jolley is head of policy." "Do you see a thing as a good policy, a bad policy, who pays, who benefits?" "No, we don't see that."
Now let's talk about accountability, and this is the thing I've heard before from everybody, and I believe the administrative fund which was killed under Bill 162 should come back. All overturns at hearings should be assigned to that fund so that when they do their value-for-money, they will have accurate, objective data.
Speedy justice humanely administered: If you're an employer rep, which I've been, it's going to cost you $100 a day for every employee who's off. I'm waiting for a hearing. I figure it's going to take two years; $100 a day, that's unacceptable. That's what employers pay.
Competency: Decisions by, say, ergonomists should stand up at hearings. They don't. There is no incentive on a board staff to be accountable. What should happen? Government -- oh, I want to talk about the commitment for injured workers by the board. How many people, what percentage of board staff, are injured workers? Under 10 or over 10? Say over 10, put up your hand. I'm thinking of the committee. Do you think there's 10% board staff disabled? It's less than 0.1%. That's commitment to injured workers. We need affirmative action in government departments.
Mr Bisson: I'll give you that one. That's a good point.
Mr Stubbs: We need affirmative action, but who is going to do it? Did the NDP do it when they were in? No.
Interjection: Sure they did.
Mr Bisson: Remember the quotas?
Mr Stubbs: Yes. Okay, now I'd like to say that all parties must move barriers from employment. We must change the culture. I need a hand up. I know injured workers who need a hand up. I don't need a handout; I want a hand up. You people are in a position to do something. You're in a position to ensure that the board looks after all allegations of any other law: human rights, employment equity, one-stop shopping. There's harassment, the board should hear it and it should go through the system quickly. I heard of one board staff who told the workers' lawyer, while the lawyer said this was harassment, "You can't touch me." That's nuts. They've got to hear.
I would like to end this presentation so you can have questions. I want to work. I'm able, I'm willing and I'm competent. Won't you give me and others like me a chance? That's all I'm asking. Give the board accountability. Force them to have accountability in the legislation, not the regulations, because they'll screw it up.
The Chair: Thank you very much. There is time for questioning from just one caucus.
Mr Maves: You talked about so many different issues. At the very start of your presentation you said you received an award for a paper from the Employers' Advocacy Council.
Mr Stubbs: Right.
Mr Maves: What was that paper about?
Mr Stubbs: Why injured workers don't return to work.
Mr Maves: What year did you write that in?
Mr Stubbs: 1991, 1992.
Mr Maves: Could you submit a copy to the committee?
Mr Stubbs: I can.
Mr Bisson: I want to know what the award was.
Mr Stubbs: It was 500 bucks.
Mr Bisson: No, what was it? From whom? Who gave the award?
Mr Stubbs: Employers' Advocacy Council, Michael Cryne.
The Chair: Mr Bisson, please direct your answers to Mr Maves.
Mr Maves: So you could get us a copy of that?
Mr Stubbs: Yes.
Mr Maves: That would be appreciated. The only other thing I would ask you about is the second injury fund. Do you think that's been successful, that's a positive element for encouraging --
Mr Stubbs: It's a very positive element but it should be changed in two ways. If it's your own worker, the company's own worker, it should be a low level. If it's another company's worker, a new hire, it should be higher and it should also include bringing people like me with permanent disabilities on when you have to come into a modified work or training program. Employers understand dollars, and it's only their money coming back from an assessment, and it makes poor employers become good employers.
The Chair: Thank you very much, Mr Stubbs. We appreciate your coming before the committee today. Just so you know, colleagues, Mr Stubbs has a brief and the clerk will make sure it's distributed to all of us. Thank you again.
Mr Bisson: Mr Stubbs, they'll hire you as an adjudicator --
The Chair: Please, Mr Bisson. We'd now like to call upon representatives from the Waterloo, Wellington, Dufferin, Grey Building and Construction Trades Council.
Mr Bisson: On a point of order, Madam Chair: I overheard a comment from Mr Stewart on the other side that somehow I'm an embarrassment to my profession for having made --
The Chair: You're out of order. Come on, now.
Mr Bisson: Hold it. I am not out of order. The standing orders are quite clear, Madam Chair, that members will not impute motive against another member at any time. They're against the standing orders, and I would ask Mr Stewart to withdraw the comment. That is not in order, and I stand by my previous comments to the other member.
The Chair: Do you wish to respond?
Mr Stewart: No, I don't. We're here to listen to the people, not to fellow members of this panel.
The Chair: Okay, we'll move on, then. Mr Bisson?
Mr Bisson: So if I call him an idiot, that's fine?
The Chair: No, it isn't. We're here to listen to our presenters and we have guests who are willing --
Mr Bisson: Chair, I just want to know the parameters by which we operate. Can I call him a Fascist?
The Chair: No, that is not parliamentary.
Mr Bisson: Can I call him dictatorial?
The Chair: Mr Bisson, we have guests. You know what the rules are for parliamentary language.
Mr Bisson: That he's an embarrassment to the human race, is that acceptable?
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WATERLOO, WELLINGTON, DUFFERIN, GREY BUIDING AND CONSTRUCTION TRADES COUNCIL
The Chair: I ask my colleagues to pay attention to the presenters who are about to introduce themselves. Welcome, gentlemen.
Mr Tom Oldham: My name is Tom Oldham. I'm the business manager for the Waterloo, Wellington, Dufferin, Grey Building and Construction Trades Council. It's a council of trade unions made up of 14 affiliates which represents 7,500 unionized construction workers.
Construction is characterized by short-term employment, even at the best of times, heavy physical labour, temporary job sites and numerous small employers. Unfortunately, these key aspects which make construction unique have been virtually ignored by all past governments in terms of workers' compensation. It is our hope that these oversights of the past will not continue with the present provincial government.
There are a number of key aspects of Bill 99 which adversely affect the construction industry. I would like to highlight a few of them for you today.
Determination of average earnings: One of the greatest concerns facing injured workers in the construction industry is the issue surrounding the establishment of average earnings. Section 53 of Bill 99 has the potential to severely restrict fair compensation being paid to an injured construction worker. Given the cyclical nature of construction, it is our contention that the hourly wage rate be used when determining the average earnings for injured construction workers.
One problem with the wording of section 53(1) is that a construction worker could have many different employers during the course of a year. Even though a person may have had steady employment, if he or she were to become injured shortly after changing employers, the employer may make the case that the injured worker's average earnings should be based on what he or she earned with the current employer. Obviously this is not fair and the legislation should be rewritten to reflect this. This exact problem was evident in the prior act in section 4O(l)(b).
You have been informed by my colleagues from the Provincial Building and Construction Trades Council of Ontario and the Northeastern Ontario Building Trades Council on how this section of Bill 99 will have serious consequences on the construction industry. We are in the just-in-time business of delivering highly skilled tradespeople on an at-need basis. If we can't attract sufficient numbers of good people to the trades, the economy of Ontario will suffer. This section of the act is a disincentive for people to enter the construction industry. We would ask the committee to seriously consider this section of Bill 99 during their deliberations. Any amendments must take into consideration the earning power of a highly skilled tradesperson who is denied the opportunity to work because of an injury sustained in the workplace.
Return to work: Most construction workers are denied return-to-work rights as a result of the thresholds which have been placed on this principle. Bill 99 continues this unfair pattern of discrimination in sections 41(1) and 41(2). The construction industry is characterized by numerous small employers. The average construction company employs five to 10 people. As a result, very few construction employers meet the 20-employee threshold. Further, construction workers, as the nature of the industry dictates, are highly mobile and work for different employers in a year. Thus, most construction workers do not qualify for return to work. Both the Provincial Building and Construction Trades Council of Ontario and the Council of Ontario Construction Associations, COCA, representing employers, agree the thresholds should not apply to the construction industry. We would recommend that section 41(8) be amended to read:
"Employers engaged primarily in construction shall comply with such requirements as may be prescribed concerning the re-employment of workers who perform construction work. Subsections (1), (2) (4) to (7) do not apply with respect to those workers."
On a more positive note, Bill 99 does acknowledge the uniqueness of the construction industry in section 40(3). In discussions with COCA, the Provincial Building and Construction Trades Council of Ontario agreed that the Minister of Labour should form a committee with the chairperson from the Workers' Compensation Board to write the regulations required for this section of the act.
Notice of accident: Presently, workers can start a claim by one of three persons notifying the Workers' Compensation Board: the worker, the employer or the worker's doctor. Under Bill 99 a claim can only be started by the worker filing a specific form. This is bureaucracy at its worst. There are many unanswered questions:
Where does the worker get the form from? The most likely source is the employer. This would give the employer the opportunity to intimidate and coerce a worker into not filing a claim.
What languages would it be in?
What if the form is filled out incorrectly? Will it be accepted?
In terms of a worker filing a claim, we agree it should be as soon as possible. Currently the WCB act has provisions stating a claim must be filed within six months; however, these limits have rarely been enforced. Where our concern is paramount is when a worker must make a claim regarding occupational disease within six months of learning that he or she suffers from the disease. In many cases a construction worker may be diagnosed with a disease and only months or years later understands that the disease was due to the nature of the employment. We have also seen treating physicians misdiagnose a condition or fail to link the disease to the occupation.
Recent examples are white finger disease and carpal tunnel syndrome. While the symptoms for these conditions are similar and many construction workers suffer from these illnesses, one is more commonly linked to repetitive use of hand tools, the other to vibratory tools. The problems arise when a physician knows little about occupational diseases, how to treat and prevent them, and, as such, a claim may not be submitted until months or years later when the cause of the disease is diagnosed.
The difficulty with the time limit is that it is possible that a restrictive interpretation could cause workers to be denied entitlement. Many workers, including construction workers, suffer from cumulative trauma disorders. Job factors which include use of awkward postures, excessive forces and highly repetitive motions can have adverse health outcomes such as muscle, tendon and joint disorders. A worker may choose to see a health practitioner for management of pain and discomfort, but no one ever explains the link work has on the condition until that worker must stop work or require some time off work for exploratory surgery and repair. The symptoms may be the precursor to the development of cumulative trauma disorders and this then leads to the lost-time injuries. In order to have a successful impact on accident prevention, physicians and specialists must be more adequately trained in recognizing the links between work and occupational diseases.
Thank you for allowing me to be here today. If there are any questions, I'll certainly try to answer them.
The Chair: Thank you very much. We have four minutes remaining for each caucus, and we'll begin with the NDP caucus.
Mr Bisson: I appreciate your explaining to this committee the problems of the time limitation of six months and what it means to injured workers in a lot of cases where you're dealing with issues such as industrial diseases. I think that's something that cannot be overstated to this committee. In all of the experience I've had in dealing with industrial diseases, and most of what I've done is around industrial diseases and the compensation field, before I came to the Legislature, is that more times than not the claim is not filed until way after the initial exposure to the injured worker.
I've seen cases where welders, for example, were asked to go in to cut metal inside some sort of a reagent tank, had some kind of a reaction at the time but the symptoms were minor at the beginning and you didn't really have the big problem with the person's health until two, three, four, sometimes eight or nine years down the road. If you put that time limitation on, it'll really restrict justice to benefits for a lot of injured workers. Again, carpal tunnel and white hand, I think, is a good explanation. I thank you for bringing that before us.
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The question I have is the one around the issue of how the benefits should be paid within the construction industry, and I just want to make sure I understood you here. You were suggesting that the benefit level be based on the average yearly wage of the worker. Is that what you're suggesting? I need an explanation.
Mr Oldham: I'd like Alex Lolua to explain that.
Mr Alex Lolua: What we'd like to see is it being based on their hourly wage rate. Part of the problem with construction --
Mr Bisson: In other words, what's in the union contract.
Mr Lolua: In our case, yes, but it doesn't necessarily happen. There are non-union construction workers that are paid on an hourly rate. What the legislation says is, for example, if you had a bad year, because we all know that construction is cyclical and it follows the economy, you may not have worked for six months, start employment, say, on a megaproject like the SkyDome where you'd be guaranteed, if you're an iron worker, say, a year and a half work. You get hurt your second week on the job. All of a sudden, if they use the annual earnings basis, your benefit is based on an annual salary of $2,000 rather than extending your $25 an hour to a 36-hour week for the year, and that makes a significant difference on your benefit level.
Mr Bisson: Okay, I got you. Thanks a lot.
The Chair: Mr Christopherson, do you have a question? No? Very well, to the government caucus.
Mr Ouellette: Thank you very much for your presentation. We've heard from a number of presenters some of the problems with physicians in occupation-related diseases, in connecting them to problems. Some of the things that have been stated is that there's been as little as four hours in training for them. How do you envision that we should be able to bring the physicians up in a manner that should be able to relate to these diseases effectively?
Mr Lolua: My present boss spent quite a bit of time with the Minister of Labour lobbying for OHCOW, Occupational Health Clinics for Ontario Workers. I know Mr Christopherson was rather strong on the lobby to maintain the funding for that. Part of the problem with a lot of these things is that your average family physician can't recognize the symptoms. Take my former boss, Joe Duffy, who went to his family doctor with a persistent cough. His doctor thought it was asthma and prescribed a puffer for him. The problem was it was congestive heart failure. Mr Duffy was an insulator and during his apprenticeship covering boilers with asbestos paste applied with the bare hand was the norm. Now Mr Duffy has asbestosis and other manifestations.
I think the government has to make the commitment to funding research in occupational health and safety, and a lot of that's got to be given towards occupational disease. You have to use professional associations to disseminate that information, however they do it, but there has to be a specialized group of people that can deal with these things and recognize occupational disease.
Mr Ouellette: You said specialized individuals. Do you mean doctors should be able to handle these cases? How would a doctor even know to recommend somebody to go to a specialized doctor if he doesn't believe that's the problem in the first place?
Mr Lolua: As we disseminate it, I guess we also have to disseminate education on diseases like asbestosis. I'm sure that the insulators do some awareness among the unionized members, but whether that gets out on any other network -- I don't think there is a formalized network that I know of to get that information out.
Mr Maves: Just on that, before I get to my question, earlier this year the WCB did establish a task force on research which has people from universities on it, the Institute for Work and Health, employer and labour stakeholders. The research in general will cover a broad spectrum of topics, including occupational disease, ergonomics, job design, and we're going to allocate an additional $7 million per year to the existing $5.5 million a year to this type of research, and that's already been made public. I just wanted to let you know about that.
Section 21, with regard to notification and the concern you have over occupational disease: The section does allow, as you have mentioned, six months in the case of an occupational disease or once you've found out about having an occupational disease. In your brief you're saying that while they might find out they have the disease, they might not understand that it's work-related, and if it's interpreted too restrictively, they would be in trouble.
How would you amend that section 21 to make sure that it's clear that the intention is that when a person finds out about an occupational disease, that's when the six-month time triggers? Have you got any idea how you would amend the wording in section 21 to do that?
Mr Oldham: I'm not so sure at this time. Obviously, we'd have to put some thought into this, but off the top of my head, I couldn't give you a wording for that.
Mr Maves: Okay, I thought maybe you had done that.
Mr Lolua: The reason I brought that up, Mr Maves, was like, for example, with my boss. He stopped working on the tools in about 1981 or 1982 and all this came on within the last two or three years.
Mr Maves: It's a good point and the intention of that clause is --
Mr Lolua: The sad part is --
Mr Oldham: He was forced into retirement.
Mr Lolua: -- with asbestos, even the wives are involved. In the old days, they did all the laundry and those fibres --
Interjection.
Mr Lolua: But in Joe's case, we're talking a latency period of about 15 years.
Mr Maves: Lastly, with regard to where you get a form for an accident, I think there's the intention also, there's nothing in the bill that restricts you to getting a form from your employer. You can get it from your union. You can get it from the board itself. You could probably still get a form from a doctor. If you needed help filling it out, the doctor could do it. You just have to --
Mr Lolua: I don't think we're trying to trivialize where you get the form, but the one thing you have to remember with construction is that we're unique, and the problem we've always faced when dealing with all legislative matters, and it's not just one in particular and it's not this government in particular, is that everybody tends to have the service and the industrial model tattooed on their brain, like, you go to work, you go to the same place. A three- or four-week job is a big job in construction, because the megaprojects are gone. You don't see the cranes around like you did when the SkyDome was being built and the trade centre. We go into places, do our stuff, hit the road, get back on the hiring hall list and look for the next job.
We're just trying to get you to appreciate that who can initiate a claim can be a real problem for construction because of the temporary work sites and the high mobility of the workforce.
Mr Oldham: I think one of the best examples I can give you on that is the Toyota plant. There were approximately 1,500 tradespeople working on that. If a plant came to a closure with 1,500 people working in it, it would be headlines in the newspaper. There are 1,500 construction workers now laid off, and nobody knows that. This is the nature of our industry. You could work on a project today in Kitchener, tomorrow you may be in Toronto, you could be in Sudbury. It's just the nature of the industry, the way things work.
Mr Lolua: Again, the point was just to get across that it's a highly mobile, temporary work site and that this form issue could create some problems.
Mr Maves: They should be available as many places as absolutely possible. Thank you.
Mr Patten: We have heard from your council on several occasions, and I want to tell you I think the issue of the hourly wages and the basis of assessment is absolutely the fair way to go, without question. So we will definitely see an amendment on that one.
The issue related to return of work: I want to let you know I agree and I think perhaps most members might agree, at least on this side, with your proposed amendment to that particular section and the acknowledgement of the number of companies that have workers under 20 employees. There's no question that that's an important issue.
I would like to support the request by Mr Maves, because it's not often you get a request by a government member asking you if you would consider drafting an amendment to the legislation. Frankly, that would have more teeth in it, and I think Mr Maves is sincere in his interest on this issue. If I might encourage you, please take a crack at that particular section and send it to the committee --
Mr Oldham: I could draft it tomorrow.
Mr Patten: -- so we can all get a chance to look at it. It's the one related to the six-month limitation vis-à-vis the work-related identification. I think that six-month one is a concern, although it does say at the point at which someone has learned about having contracted a particular disease, at that particular point, so that in and of itself may be several years later, but then again of course is the issue Mr Maves raised, and that is the link to the workplace. Other than that I agree with much of what you've presented. I think my colleague may have a question.
Mr Hoy: We've had other concerns about the use of the two official languages, and the fact that other people may use some other tongue for filing forms and other business matters, not only in this bill but in other bills in the past; and you point out a very serious point when you say if the form is filled out incorrectly, would it be accepted, and if it's not accepted, how do we deal with it after that. We're hearing a lot about time delays in the hearings, and certainly if a form is filled out incorrectly, one would want it sent back and maybe some prompting as to how to do it. You raise a very interesting question as to whether it would be accepted, citing some language barriers.
The Chair: Gentlemen, on behalf of the members of the committee we thank you for taking the time to come before us with your suggestions, and we'll look forward to your proposed amendment.
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UNITED STEELWORKERS OF AMERICA, SOUTH CENTRAL ONTARIO AREA COUNCIL
The Chair: I'd now like to call representatives, please, from the south-central Ontario area council of the United Steelworkers. Good afternoon and welcome.
Mr Pat Monaghan: I'm Pat Monaghan. I'm on the health and safety committee for District 6 for the Steelworkers. I'm also on the compensation board for the Steelworkers and I'm president of my union, Courtice Steel, here in Cambridge, which is a mini-mill.
First of all, I'm proud to be a Steelworker and union member, not like the gentleman previous to me there who was speaking against the unions. Maybe he doesn't realize that if it wasn't for a union, some of the non-union places wouldn't have the legislation that's in place right now.
I'm also a personal friend of Homer Seguin, who used to be on the ODP. I'm also a friend of Rick Hamilton, who set precedent legislation as far as WCB cases go. They were also union people too.
To get on, I'm just going to go through my brief because 20 minutes is not enough to talk on this. I could probably for talk 20 years, since it's been in effect for 80 years.
I'd just like to point out that the solution of coming up with WCB was Tory-connected, through Meredith in 1914, as everybody probably knows. It's been in for 80 years, and the general rules of workers' compensation that have been applied by the government of Ontario have yet to be changed. It's stood decades of Conservative rule in the province and it's sad to see what's happening right now.
In my submission I wanted to touch on a few things. I want to talk about occupational disease, accommodation/ return to work, the end of vocational rehabilitation, privatization of services, the narrow time window for appeals and the changed confidentiality obligation for employers. But I'm not going to have time to talk on that, so I'm going to talk on a few different things as I get into it.
One of the central themes of the presentation is one continuing message. It's simple and to the point: If those who benefit and profit most from the work being performed by workers do not pay the costs for the injury and illness inflicted on those workers, then it will diminish their reason for doing something to prevent the damage to those workers who work in that workplace. Only when we treat injured and ill workers as human beings can we address the objectives that are set.
As indignant as it may sound, this is not just about morality; It's about prevention as well. Our history in places like smelters in Sudbury, the gold fields in Porcupine, coke ovens in Hamilton, steel mills in Sault Ste Marie, steel mills right here in Cambridge where we had people, prior to being unionized, who had lead poisoning -- it was only through the union and the education the union gave our members that we discovered we had workers who had lead poisoning. Our employer had no sense, no obligation to tell the workers. It was through the union we got that.
We had hoped that the compensation system would move forward to prevent such hardships for workers. Instead, it's moving backwards. We're going backwards in time, not forward. I believe the proposed legislation takes us back in time to the last decades of the last century, when injured workers were simply discarded cogs. The history of Ontario and the tradition of most governments, and I say most governments in this province, is to move forward and not backwards. Bill 99 is bringing us backwards to the bad old days before the Workers' Compensation Act was created and enforced. Ironically, this current government has forgotten that many features of one system were originally set by Tory governments.
What I'd like to do is talk about the confidentiality. I can't imagine that this aspect of compensation regulations could possibly be in question. Doctor-patient confidentiality: It's one of the oldest things that people rely on, their statements. It's as old as medicine itself. Where there is no trust, there can't be any healing.
People aren't going to tell their doctors if they know that the doctor is going to blow the whistle on them, and yet, under Bill 99, employers are required to keep information confidential only if it is obtained from the board's records. Should employers however receive information from other sources, the confidentiality obligation does not apply. It is not unusual for some information to be provided directly to employers through outside reports; for example, a functional abilities report from a doctor. Under the proposed legislation, employers may also receive other outsourced reports that have nothing to do with the injury.
It is entirely unthinkable and unacceptable that an employer should be able to pass any such information on to anyone but the injured worker. We can only begin to think of how such information could easily be misused or abused. Knowing this possibility, an injured worker may refuse to participate in such an investigation outside of the board. Of course, he'd be cut off because it would be non-cooperation. But he's giving his whole medical evidence from the day he was born.
This union sincerely hopes this proposed legislation is merely an oversight and not another ploy by the government to invent ways to disentitle injured workers.
I'd like to talk on time limits of the appeals too. The union that I belong to, the Steelworkers, understands that any large institution must conduct its business under time constraints. You have to be economical, there's no doubt. We also find it difficult to investigate a grievance if it is filed many months after the act. But we also know that there are many reasons why an injured worker may file a claim long after an accident occurs. In the case of occupational disease, when does the clock start ticking for the time limit of that appeal? At first exposure, which is absurd because of the latency periods, or when the worker is unable to work, or perhaps when the worker dies?
The proposed legislation suggests two different time limits to file a written notice of objection to the board decision. If the issue is return to work or labour market re-entry, an appeal must happen within 30 days. All other decisions have a time limit of six months. For appeals to the appeals tribunal, the time frame is now six months as well, and the WCAT must make a decision within 120 days.
Given what the Steelworkers union has experienced in the appeals arena, we must assume these regulations are intended to discredit union compensation representatives who, already overworked, will probably be forced to pick and choose among the cases on the desks in front of them. Who will decide which appeals are feasible within the limited time? Who will train and pay the dozens of extra compensation reps required to meet such time demands, or should the union think about initiating an appeals lottery and we'll see who the lucky guys are that we'll represent?
We also know that in many cases the long-term effects of an accident may go unnoticed for years. Medical practitioners do not always connect work with health complaints. In respect to occupational disease, we know that some do not manifest themselves until years after the worker has retired. Even in the case of an injury, the worker is often unable for months to make any decisions. Pain, medication, treatment, worry and uncertainty all contribute to a state of inertia. How many of our members, how many non-union workers, will miss these deadlines and be forced to live with incorrect and unfair board decisions?
Further concerns which we have are related to claims of more than one issue. How will these be affected by appeal time limits? Bill 99 also requires that any notice of objection be filed with the board in writing, indicating why the decision is incorrect or why it should be changed. This will require compensation representatives to carry out extensive research before an appeal can even be filed.
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How will this condition affect those injured workers with limited reading and writing skills? In my workplace right now, in the Cambridge area here, it's Italian, it's Portuguese. We've got Canadian people, we've got Americans. I know right now how the employer intimidates the worker because he can't speak English: "Sign here." They know how to sign their name, but they don't know how to read or write properly. This is going to be another intimidating factor.
Are workers who speak very little or no English excluded from the appeal process? That's what's going to happen, because they're not going to know what's happening. This cannot be the intent of the compensation system, to be accessible only to English-speaking, unionized workers with a thorough knowledge of the law. We cannot interpret this any other way but as an act of intentional exclusion. As a union, we cannot accept such unfairness and such injustice.
Talking about privatization, which I think the people before were talking about, the very name suggests the new emphasis on the private sector. The Workplace Safety and Insurance Act eliminates two important words "workers" and "compensation." It's sad. It's really sad. Focus is clearly changed to the workplace instead of the injured worker for whom the system was originally designed. The use of the word "insurance" in Ontario has to suggest private sector activity. It means private companies whose goal is not to pay out for an injury, as opposed to the goal of compensation which is to ensure income replacement.
You've probably heard this before, because I know there have been other Steelworkers report on your little jaunt around the province, but in case it wasn't, back on June 6, I think, there was an article where the Workers' Compensation Board had a tender number 97-019, which invited proposals from private investigation firms, "to provide surveillance services to the WCB to detect and combat fraudulent activities." They have little or no knowledge of medicine, they know nothing about injury, recovery, ergonomics. Many injuries which our members suffer are not immediately visible, and they are not any less painful or debilitating.
We certainly hope the fraudulent activities which the board wishes to detect and combat are on the employer side, although it is unlikely the private investigators or security guards will be looking into so-called white collar crime; for example, unpaid premiums, falsified accident reports, worker harassment, substandard working conditions, just to name a few of the sins we have experienced by employers, and my own employer itself. We do recall that Ontario once employed such surveillance people. Do you know what they were called? Ministry of Labour people. They're no longer there any more.
Will the board train these private investigators to use their video surveillance? Will they peer into injured workers' private homes? Will they snoop into their neighbours' or into other families' business? How much is this surveillance going to cost the government compared to the number of fraudulent workers who are uncovered? We welcome any statistics from the board on how much worker-side fraud has been investigated and uncovered and what the cost has been of that.
If employers are entitled to do their own internal responsibility system, we expect nothing less for the injured workers, either.
I'd like to talk on occupational disease a little bit, because Homer was a pretty good friend of mine. I hope you realize in your statistics that the Occupational Disease Panel discovered more work-related injuries than the compensation board did in its entire history while it was there, but now it's been totally dismantled.
One of our major concerns we would like to emphasize here is the compensation of victims of occupational disease. As a union, we are all too familiar with the devastation that disease can cause in communities. Our union needs to remind you of how employers withhold information from their employees, or how workers are humiliated by the compensation system, of why we continue to struggle with issues that should have long ago been resolved.
More and more, the compensation systems are faced with injuries which are not a result of trauma. Occupational diseases result from a constant, unrelenting assault on a worker. It can be years before the outcome is visible. In the case of cancers, a so-called latency period can be decades. This means that the time from first exposure to physical evidence of the disease or condition can be as long as 20 or 30 years. Sometimes the resulting condition is not as dramatic as cancer, in the case of soft-tissue damage. This can take the form of a back injury resulting from chronic overuse, or it could be repetitive strain injury, the result of doing a job in the same way hundreds of times a day.
The problem for the injured worker remains the presumption of proof. A worker must prove that a disease is the result of work, is an outcome of long-term exposure, overuse or short-term overexposure. As a union, I find many instances of occupational disease to be self-evident. In fact, I'd suggest there is hardly an illness that is not work-related, and yet in case after case the injured worker, in addition to the condition itself, in addition to financial burden, in addition to job loss, must carefully build a case to prove, and I quote "prove," the disease results from work. Historically, this type of information is not gathered or it is destroyed after a certain number of years before workers need it to prove their case.
The proposed changes will make this process particularly vicious. Certain diseases related to work, for example, in schedules 3 and 4, will no longer be presumed to have occurred due to the nature of employment, but and I quote again, "conclusively deemed" instead, unless the contrary is shown.
This seems like a minor change in wording, but giving our history with the scheduling of disease obviously related to the mining industry, this new legislation will create loopholes for employers. "Conclusive," in epidemiological-medical terms, is a rare finding. No diseased person lived a second life to verify the cause of the disease. In fact, the same exposure may not have the same effect every time, but our understanding of epidemiology is so rudimentary that this may be grounds for leaving the worker without assistance.
Assumptions are based on large population studies and we can only conclude our members are part of that group and may assume their work caused their disease. Employers will always be able to find an expert who is not conclusively convinced that a disease is the direct result of a particular work situation. In fact, our union can pretty well much predict who these experts are going to be.
Further, changes to section 92 concern us deeply. There is no longer a provision for the fixing of benefits according to the occupation in which the workers were disabled if they are working in another occupation.
With the closing of the Occupational Disease Panel, how shall our members be able to prove the connection between the work and disease? Our union doesn't have a medical disease research department, nor could we afford one. Many of our members are not graduates of universities with a degree in epidemiology or medical science. Few family doctors are trained to recognize occupational disease conclusively. They only spend four hours in their whole five-year intern on that. Many of our members live in locations far from specialized occupational health clinics. We will see once again our members languishing in sanatoriums, far from family and friends, and their families will be impoverished.
The ODP was an independent body that was funded by the board to facilitate research into occupational diseases and their probable causes. The ODP had the ability to find experts around the world. The ODP had the ability to consult with stakeholders: workers, employers, scientists, physicians, unions, communities. The findings, reviewed in the scientific community thoroughly, were shared equally with all interested parties. Why is the government afraid of such findings? Is there is a relation between work and disease? Why would it not be in the interest of all citizens to have this information? Is it less costly to pay for poor families, for mental suffering, for broken communities, for premature death? Whose cost analysis is this, anyway? Not one for the affected workers and their families.
If the functions of the ODP are returned to the board, we have to ask if our members can be assured that the findings and the research will be independent of the board policy and interference. What assurances will our members have that the experts doing the work are uninfluenced by the board? How could our members be certain that the investigative results will be released publicly if they contradict board policy?
Finally, we are very concerned about the bill's intention to eliminate work-related stress and many soft-tissue injuries from compensable disease. Research in most industrialized countries in the world indicates that speed-up, new technology and productivity demands are responsible for stress. This stress is measurable: high blood pressure, ulcers, cardiac disease and other conditions. These illnesses are not imagined by stressed-out workers; they are real, they are measurable and they can be deadly. To not recognize work-related stress is to assume a pace and quality of life in the workplace which simply no longer exists.
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The same workplace conditions can lead to a range of soft-tissue injuries. These often lead to disability and chronic pain. Bill 99 intends to impose limits of compensation for chronic pain as though it were a disease like measles that could be cured easily and in an expected period of time. Such intentions fly in the face of all medical research and opinion. This is compensation by bottom line, not by good medicine. This too is a return to the standards of the past, but in those years very little was known about conditions such as work-related stress and soft-tissue injury. What excuse will the board have for not recognizing these now?
Soft-tissue injury and stress are a reflection of the way work has changed. We have a far better understanding today of why people get injured. Our understanding of occupational disease and the science that goes with it, while still inadequate and based on highly dated and suspect concepts of causation, tells us that it is far more widespread than was originally believed. Today people develop diseases and illnesses for a variety of reasons, but a fundamental one is the nature of their work and the environment in which they live and breathe.
The struggle for compensation will continue because each time injured workers and their representatives bring in sufficient proof of the connection between work and disease, the bar of presumption is raised a little higher. Such bars usually consist of assumptions about disease and illness: the worker's lifestyle and bad habits, the worker's genetic disposition, the worker's previous employment history, the worker's diet. Nobody mentions the fact that workers are doubly exposed: once at work and again within their contaminated communities.
The Chair: I wonder if I could just ask you to sum up in the next minute or so, please.
Mr Monaghan: Okay. I'll just go right to my conclusion.
A compensation agency fully and truly concerned with fiscal responsibility would turn to the activities known to reduce the gravity and number of accidents and disease. This would be enforced health and safety legislation, significant fines to employers who display a blatant disregard for the health and safety of their employees, worker inspectors and an emphasis on true joint health and safety committees in every workplace. In a broader sense, fair and just compensation for injured workers is fiscally responsible because any other treatment just becomes fiscally irresponsible for the broader community.
The changes proposed in Bill 99 mention none of these, although the government states that the purpose of this legislation is to encourage prevention. Until there are true and sincere efforts at accident and disease prevention, the rate of compensation-worthy events will continue to rise. This does not go away by refusing to compensate.
The Steelworkers union is proud of its decades of assistance and representation to injured workers. We have learned much about compensation, what works and what doesn't. We can say with certainty that Bill 99 won't work.
To say the government's proposed legislation is a step backwards is an understatement. It is a leap back into history, back to ignoring the pain and injury working people suffered under unsafe and unhealthy conditions.
The Chair: Thank you very much for your presentation this afternoon. It's appreciated by the committee.
STRATFORD AND DISTRICT LABOUR COUNCIL
The Chair: I'd like to now call representatives from the Stratford and District Labour Council. Good afternoon. If you'd please introduce yourself for the Hansard record.
Ms Bonnie Henderson: My name is Bonnie Henderson. I am standing in for Chris Creason, who wasn't able to come. I'm a trustee for the labour council, so they asked me if I would like to come and say anything at the committee hearings. I thought about it and decided, even though I've never done anything like this before, that the issue was much too important to workers and myself to not come and express my point of view. I would like to thank you for allowing me this opportunity.
I work in a factory in Stratford. We make weather stripping for cars. There are a lot of repetitive jobs in my factory, and since I'm on the safety committee and the modified work committee, I witness and hear a lot about injuries on the job. My company is a pretty good company compared to some of the horror stories I've heard when I meet other injured workers or talk to other people in my town. My company has a corporate health and safety department, and they are committed to reducing the accident level so they can meet their 6 sigma by the year 2000. They have committees in place to accommodate injured workers, but even so, it doesn't always work without the help of the case worker. We get some action on getting the changes in place when they come out to check on what's happening to the worker or to see about getting someone back to work.
One worker I'm helping has a permanent injury from being left too long on the same job. Even though no one is to work more than four hours a day at that job, he was left for weeks on that job. He has had surgery which unfortunately has left him worse off. His doctor writes and says, "Try rehabilitation, as surgery didn't go as anticipated." How can he be rehabilitated? He has already been assessed by the clinics and he is at maximum recovery. He will have to work in pain the rest of his life. He has only been able to work four hours a day for months now and is in constant pain.
The case worker has been out many times waiting for the changes to be put in place that we the committee recommended so we can accommodate him, and still they aren't all done. It is so frustrating. He wants to work and tries so very hard not to cry or complain about the pain, but it's in his eyes and in his voice. The case worker was concerned because the adjudicator needs to close the claim as his time is long ago up, and the poor worker is still waiting for changes to be done to his workstation. He works in conditions that are making his injury worse. How is he ever going to be able to work eight hours again? By the way, this is one of the lightest duty jobs in our workplace, but ergonomically it is not very good.
The changes will cost approximately anywhere from $200 to $500. They just involve positioning a box lower, adjusting the workstation, which involves moving two screws, moving an air line, moving the palm buttons or replacing them with lighter touch ones, and getting him an ergonomic chair.
The union has accommodated him into this job and we wait for the changes. When the case worker came out last time and I reported that the case worker is extremely displeased, we got 80% of the job done within three days. I find each time the case worker comes out, we get more done for each case. It's the committee's feeling that the company is willing to do most of the changes but want to wait until they absolutely have to. I probably should also add that maybe they don't believe the committee knows exactly what they're talking about and they want to have this person who comes out who knows more and, "Okay, now we'll do it."
Under Bill 99, the case worker will no longer come out until all avenues are exhausted. This is not fair. The injured worker is the one that will suffer. At least in the above scenario, I see action sooner, but under Bill 99 we wouldn't even be at the first stage yet. The case worker makes our job easier in pushing the company to make the changes. Most companies don't have trained personnel or the time to allow engineers to help you.
Another worker in my workplace works four hours a day cleaning the workplace as he hobbles from job to job. Sorry; I get emotional about this man. He only gets four hours' pay a day from the company, as his claim has been denied from compensation after a year's time. He fell at work and there was no problem with the claim until his injury went on too long. The man should have been pensioned off. Everybody in the workplace, even the plant manager, can't understand why he has to be there. The longer he works, the more injury he does to his body.
There is no need for this dedicated worker of 35 years to struggle to work just to make a bit of money. He deserves to be home. There, hopefully, his body will slow down on the degenerative injuries and he will have a longer life at the stage he is at now. There is no hope for recovery. He hobbles and limps around with a cane, but still struggles to clean and come to work. This worker has overcome a hard struggle, as he was once a lead hand man, in charge of a department of 17 people, and he felt worthless and degraded to come to the workplace and clean tables and eyewash stations. It took a lot of patience to try and help him overcome this major adjustment in his life. He is hopeful that one day he will return to his pre-injury job. I know better, but I don't discourage the man. He suffers from lack of esteem that he no longer can give his family the monetary support that he could in the past and constantly worries about what the future will bring.
His doctor doesn't understand how the compensation board has made this man go back to work. After all, he is his doctor. The worker pushes himself to work because if he's off, he receives no money. So far, the company has been good about the four hours that he is at the plant, as he can only work about one and a half hours in that time. I'm probably exaggerating a bit of that, but he rests the rest of the time.
Bill 99 will make this even worse. The worker doesn't understand how the company -- the company's consultant appealed the case, as he was due for NEL -- or the compensation board is doing this to him. He did his job and worked hard for many long years. He doesn't understand: "Why aren't they taking care of me now that I fell at work?" How do I answer him? The adjudicator has to make the decision. We've heard nothing since February, even though he's been cut off since last October.
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My company, at the last modified meeting, was talking about how they could pay for people until they could decide if it was a workplace injury or not or if the person was capable of increasing their hours. I said: "How can we know this? We aren't doctors, so how can we know if they're ready to work or not?" No one could answer me. This worries me.
We had a worker who had constant pain in his shoulder. They put him on a trimming job for eight hours. I expressed my concern that the trimming would be irritating his shoulder. They felt it wouldn't and were very angry at the worker for not putting out more production. The case worker had the ergonomist come out, and the report said this type of movement would indeed increase his pain and that as long as he continued as he was, fewer production pieces, his pain should remain the same and not increase. The company decided they couldn't accommodate him and released him the next day. He now is going for retraining and hopefully will find employment, with his injury, somewhere else. I have my doubts about that. Hopefully, it works.
My sister has been injured at work. It took over a year for her to finally be diagnosed, and she works in the kitchen of a hospital. So how would another workplace know? This is a very scary situation. Please reconsider the changes to Bill 99. I suggest that you go to the workplaces, talk to the committees, look at the reports, and then go and see the action or lack of action in some of the workplaces. These are real issues and are happening to human beings. If you don't help them, who will? You have the power to make good changes and help these injured workers.
My company was fined for not following the law. I asked, why can't the fine be put back into the workplace, with the health and safety committee using the funds for making positive safety changes and educating the people about safety? I was told this is not possible.
I don't believe in systems that give companies back rebates and then there is no follow-through to see if they used it for safety changes. At least this would be a step in the right direction.
Our company gives us a free coffee if we can go a month with no lost-time injury. Then the next month you get a coffee and a doughnut, and then the next month a cold lunch, and then the next month a hot meal. I have never understood this. To me, it says we are causing the accidents. I would rather buy them a coffee for keeping us safe for a month. We can't get a month in, not yet, but maybe with this 6 Sigma the company is striving for, a miracle's going to happen. Besides, that money could go towards fixing machinery and making my workplace safer, not buying coffee or jackets.
In closing, I want you to understand that I'm only giving you a few examples, as I only have 10 minutes, but there is so much more I could tell you. And please bear in mind that I believe I'm working at an above-average safe company in my home town, and I honestly believe that. This makes me wonder about the other companies that don't seem to care at all. This may sound weird, but it's how I feel. I feel sick with worry about what the new changes are going to do to injured workers and their families.
My fellow Brothers and Sisters don't understand how the compensation system works until they're in it, and then they constantly say to me: "I've always heard how easy it is to get compensation. How come I'm having trouble?" I feel this speaks volumes about the kinds of changes we need to make things easier for workers, not harder. It is hard enough to get the workers to tell their supervisors about cuts, sprains etc, as they don't want to hurt the company or bother them. They would rather deal with it themselves, and that's a problem. If injuries aren't taken care of in the early stages, the person usually ends up off work or working in pain. There is no way the average worker would actually initiate a claim. They would be horrified.
Bill 99 will be changing this. What will happen then? The sick and accident insurance will be used more and/or the welfare system when the sick and accident runs out. Sick and accident insurance only lasts for so long and then the benefits run out, and then what? Please think long and hard and do lots more research. Please don't bring Bill 99 into law in its current form.
I just want to add one more thing. I've heard a lot of speakers speaking today, and I just thought, since I teach safety in my workplace -- I heard from the trucking firms and different ones today. A lot of them seem to think they're teaching safety.
I teach WHMIS. It's been the law since 1988. When I'm teaching WHMIS, I introduce myself and I get them to introduce themselves, and I ask them, "So what experience have you had in WHMIS?" It scares me to this day that a lot of them have only had an hour or something. I've had some of these workers tell me: "I just work with tar. I'm just in a construction firm. No big deal. I work with pitch and stuff." Other people say: "I work for a propane company, but they told me I didn't have to worry about it. We had an hour's training." These are serious things to worry about. I teach them an eight-hour course and they are shocked to find out how much they've been deceived because they realize they should have known all that.
I've heard them talk about this three-day waiting period. I'm really confused. With our sick and accident, we have to wait three days if it's sick and accident, but if it's an accident, it's right away. To me, an accident is an accident. I don't understand where this three-day thing is coming from.
I blame a lot of this on lack of knowledge and understanding of safety rules. I can give you an example of how I've been off sick in my plant. The xylene levels were very high in my workplace. I was called to help out. It's always, "Bonnie, come over here and help us," because I go and help out. I was surprised to find out that the workers had their masks on but didn't know they were supposed to do positive-negative pressure tests. You have to do it every time you put a mask on, for anybody who doesn't know that, and it's a very simple test. I asked the supervisor to train them, and he said: "You'd better do it. I have no idea how to do it." Think about that. He's supposed to be the competent person taking care of us. I went into the pay manager to voice my concerns about it.
I went ahead and did what he said, and I discovered that several of the workers' masks didn't even fit them when they went to do their test. I went in to get them some masks and found out we only carried medium in the plant, which shocked me. I assumed we carried all the sizes. I did my training and had always been told that people have these. We've got them ordered now in small, medium and large. There are different sizes. All we had was medium. This is just lack of training.
They have these nice health and safety corporate committees and everything, but if you don't actually go out there and talk to them, how are you going to do anything about it? It's a false illusion out there that you only report WCB if you go to the doctor. I have a lot of times helped fill out accident reports, but they always say to me, "Are they going to the doctor?" I always understood all that had to be reported.
I think now what's happening is because they get all these rebates back, it's not being reported that way. It's only being documented if they're going to go to the doctor. I'll get a call at home saying: "Can you come in? Somebody went to the doctor and we've only got so much time to get it or we're going to get hit with a penalty." I always come right in and help get it out there, but that's a real problem.
I would like to thank you for listening to me.
The Chair: Thank you very much. We have time for brief questions and answers from each of the caucuses. We'll begin with the government caucus.
Mr Stewart: Thank you for an excellent presentation. You made the comment, I think on the first page, that "my company has a corporate health and safety department and they are committed to reducing the accident level." As you go on, it tends to appear that maybe they're not quite as committed as you had said at the start. What about the success rate? We've heard some pretty good success stories -- one happened to be up in the north country last week -- of the rehabilitation, back-to-work process. What kind of success rate have you people had in your company through prevention and safety etc?
Ms Henderson: I don't want to blow my own horn, but I feel if it wasn't for me doing it in my workplace, it would have been really lousy. I was very fortunate. I went away and took some courses on it, so I was able to get them back.
Mr Stewart: The company is cooperating, though, with you?
Ms Henderson: It cooperates with me. I've always been a cooperative person with them, though. I go in and talk with them, but there are lots of times I'm very angry because I think: "I didn't even know that person was on modified work. What happened? How did they get back here? How do we make sure they're working on something that's ergonomically right for them?"
I went out the other day and here's a man working like this and he's saying to me, "This really hurts." I said, "Lower your chair." He lowered his chair down here and it's working; this level is good. An hour later I came by and asked, "How is that?" He said, "That's a lot better." It's simple things like that.
I work full-time at my job. We don't have anybody doing this full-time in our plant. We only have 435 people in our plant, so we don't have any full-time union reps or anything. Sorry, we have one president who goes back and forth between the two plants. We're all volunteer time. We don't have that luxury of being full-time.
Our company is really committed to want to get the safety thing down, but it has to be done correctly, done legitimately. These programs where you give somebody coffee and all that -- somebody hurt themselves the other day and they said, "Well, there goes our coffee." I said: "Give me a break. That's got nothing to do with it. Let's get over there and fix that machine."
Mr Stewart: I don't think there are too many companies that go for just giving a coffee away.
Another thing you're talking about is education.
Ms Henderson: Very important.
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Mr Stewart: There's a statement that you can lead a horse to water but you can't make him drink. A concern I have is that you can give them all the education, but if they let complacency take over -- and I believe some workers probably do that, as well as some employers -- it makes it difficult to make sure that safety and prevention are going the way we both want.
Ms Henderson: You're right, but first I think they need the opportunity to have that training.
Mr Stewart: Absolutely.
Ms Henderson: I suggested we do lockout training in our plant and they said they already have lockout training. I said, "Let me see what it is," and they had a copy of the minister's rules. I said: "That's not lockout. That's just the rules. We have to apply it to each machine." Then I went and took a course on it. I asked the company if they'd pay for me to take the course. It was $35.13 and they said no, because they didn't think it was necessary. I paid for it myself and I went. I came back and now they want me to teach it in the plant.
Mr Stewart: That's commendable.
You're talking about this particular gentleman who's had some problems. Over the last two weeks we've heard about people having problems for 33 years, up north, and 21 years, and we heard about Mr Walsh and Mr Postill today. Now we're hearing about this, which leads me to say that what has happened in the past has not worked. I guess what we're out here for -- and there will be amendments to this legislation -- is to listen to you people and solve some of these problems that have gone on for bloody 30 years. It is not right, and we've heard it continuously. All governments have had a shot at it. Nobody's carried it through until now. We've got to make it work, ma'am, and it's with your help and the kind of comments you've made, and I appreciate them.
Mr Christopherson: Extend the hearings so we can do it properly then.
Ms Henderson: Can I just say one thing? Really look at that part where it says there will be somebody, some kind of watchdog or something that goes back and sees if those things are actually happening. How are we hiring supervisors in our workplace who have had no health and safety training? The law says they're supposed to be competent, so how did they get hired without having training first? They should have to have level 1 or level 2 before they even become a supervisor. They're supposed to be taking care of me. I'm not supposed to be taking care of them. They come and get me all the time.
Mr Hoy: Good afternoon, and thank you for taking the time to come here today. You sound like a person who likes your job --
Ms Henderson: I love it.
Mr Hoy: -- and is very caring about the people you work with. I think the committee needs to, from time to time, get away a little bit from the regulatory talk about a bill and hear about real issues and real people. You're talking about a company that I think you said is probably above-average in safety.
Ms Henderson: For sure.
Mr Hoy: What is "6 Sigma?"
Ms Henderson: I don't know how to describe it exactly. You know how GM and Ford say, "By year so-and-so you have to reduce your costs by 8%, and then 5%, and all that"? That includes everything. Your safety costs have to go down. We're under the QS-9000 now, so when they come back next time, we have to show we have fewer modified injury workers, we have to show we have fewer safety problems and fewer union problems and all kinds of things. You try to change it to show continuous improvement. They've predicted that by the year 2000 in our plant we're going to average only four accidents a year or something like that. They're doing predictions ahead, what they're going to plan to get to down the road.
I can see ways where we can just eliminate it already, and that's not way down the road. One solution I told them about was that we had vulcanizing people. Every time they lifted this thing up, we had 15 people go off, and they were off for months at a time. We suggested I don't know how many times to put this thing on; it costs $100. They put it on and we haven't -- touch wood -- had one person go off in eight years now. It cost $100.
There was a thing where it was too much noise, bang, bang, bang; they have to do 100,000 tests on this car. I said, "The noise is too loud." They said, "It would cost us too much to do a change." I said: "You've got the partitions from the office. You took them down and put them out in the garage. Try that." They brought it in, and it cost nothing except the material handlers to bring it in, and it worked.
Things don't have to cost a lot of money. Just think about the workers. Their nerves were jumpy when they went home at night. They said they could hear the door still slamming. We can fix problems quickly and easily if they'd just listen to us and think we have some credibility.
I'll give you another small example from last week. It was really awful. Corporate was down in the States and they heard of a young lady who put her hand into the hopper, and when it came out she didn't have this part of her hand any more. They immediately called all the extrusion plants and said: "Shut them down. Check your hoppers." We had already gone out and checked the hoppers in our plant before this. I had deemed that two were unsafe, because I felt that somebody could still get their fingers in. The head engineer asked me, what did I know about stuff like that, and that it wasn't true. Corporate said, "Go out and check them." They changed those two. I went back and asked, "How come you didn't change them when I said it?" He goes, "Human error."
I have credibility. I'm not trying to cost a lot of money. I just don't want anybody to get hurt, so we can get the compensation down to nothing in our plant and we can get big raises. Why should my company pay $3 million or $4 million a year into compensation? Why should compensation build this great big building? Compensation is supposed to be eliminated. We're supposed to be eliminating it and making the workplace safe, ergonomic and healthy.
Mr Bisson: First of all, I want to thank you for presenting to the committee. It is always refreshing to hear somebody who comes to the committee and speaks from the heart and brings what they see in the plant in human terms. As was mentioned earlier, a lot of presentations are technical and analytical and looking at the regulations.
Ms Henderson: I'll tell you, I was horrified today thinking about it.
Mr Bisson: Oh, no, you did a most wonderful job. I really have to say on behalf of all members of this committee that yours was a very a strong presentation. I can tell you that members of this committee listened to what you have to say.
I want to explore one point because I think you're really the first one to raise it in this way. You made a comment in your brief, "It's the committee's feeling" -- talking about your health and safety committee -- "that the company is willing to do most of the changes" for that modified job, "but want to wait until they absolutely have to." You keep on going on about how your company is a good one. If this one of the good ones, imagine how bad it is with some of the bad ones.
Ms Henderson: It is, it's awful. I listen to them out there: my sister at the hospital, what she had to go through. I told her for over a year that she should have applied for compensation and she wouldn't listen to me. Now that she finally has, they're telling her she was entitled, but at work they kept telling her she wasn't. They were only giving her 12 hours every two weeks to accommodate her, but they weren't giving her any money.
Mr Bisson: That's the point. A lot of us worked in workplaces where the employers were somewhat reasonable, and even with reasonable employers we've had great difficulty trying to get them to see the light when it comes to making a situation more safe.
I had a situation when I worked underground where I was threatened with firing, and I was brought in to be fired before the manager for having called in the Ministry of Labour because the cage, the thing you go underground with, 4,000 feet down in this particular shaft, was in danger of failing. The bushings that hold the main clevis across by which the cable is tied was failing. We had been reporting it and reporting it to the health and safety committee and the company refused to do it. Finally, we said: "To hell with it. We're calling in the ministry." The result was that I was threatened with firing. I was strong enough to withhold and I knew my rights and I knew what I could do, but imagine that worker who doesn't. That's the majority of our brothers and sisters in the workplace, who don't know their rights or sometimes are fearful to stand up for them. I think that's something that can't be said enough.
Ms Henderson: That's why it's always over the loudspeaker, "Bonnie, will you come to the cutting room? There are strips on the floor," because they're afraid to go to the supervisor. I'm on a quality control job; I'm accountable to my boss. Somebody who's making a production piece might feel influenced: "Next week you're getting midnights again because you spoke up." I can go and do that for them.
Mr Bisson: I just want to encourage you to keep on doing the fine job you are doing in your workplace. I wish our workplaces in Ontario had more people like you, who have the heart to do what they have to do.
The Chair: On behalf of all the members of the committee, I think you are an asset to your workplace. You were certainly an asset to the committee today.
Ms Henderson: Just take care of us, okay?
The Chair: Colleagues, before we adjourn, Mr Maves has the research statistics I think you were requesting, Mr Christopherson.
Mr Maves: I'll pass these over. In 1997 workers' compensation moved their rate groups to target rates to better ensure an appropriate distribution of assessment burden between industry groups on the basis of their injury cost experience. As a result, the home building industry had a 21% increase in their rates; 73 rate groups experienced rate increases, 136 experienced decreases, and in the remaining the 10 there was no change.
The Chair: Thank you very much. Colleagues, that's the final presentation of the day. We'll reconvene tomorrow morning at 9 o'clock. The committee stands adjourned.
The committee adjourned at 1700.