Darrell Powell and Dr. Lisa Doupe speak on WCB at the Senate

POWELL: "With workers’ compensation, they are not accepting claims, period. It is a staggering rate of denial on claims. The medical criteria and arguments that they use to deny a claim are astounding . . . Workers compensation has changed dramatically since 2000, especially in British Columbia, which is leading the compensation systems and is homogenizing it to this new stylized version of compensation, which is predominantly focused to benefit the employer and the corporate sector. What they will accept is different and the tools that they use to measure health and disability are for the most part, quite unconstitutional." DOUPE: " The combative process is often because of the insurance need to manage numbers, whether it is cost or number of claims, then in the lack of this coordination and collaborative process, creates extraordinary delays in the actual processing of people's treatments and claims. The process in itself becomes an additional barrier to well-being and recovery. . . . I see this is as an opportunity for the ICF to be integrated as one of the options to be considered, not only for the compensation system, but also for other insurance systems.

Excerpt from June 18 2009 - The Subcommittee On Cities Of The Standing Senate Committee On Social Affairs, Science And Technology

We have two witnesses before us who I will now introduce. Darrell Powell is a National Advocate for disabled Canadian workers and their families; and Dr. Lisa Doupe established the Prevention Wellness Rehabilitation Health Consultants in 1989 to champion her belief that rehabilitation should be institutionalized in public policy and in the policies of the private sector, such as employers and insurers.

Darrell Powell, National Advocate - Mental Health and Disability for Disabled Workers Canada, as an individual: Thank you very much for the invitation to come here. I think these committees have been doing incredible work and, from my perspective, disabled workers and the disparities they face generally are not accepted into health and social issues dialogues and discussions. Any opportunity to join in such discussions is greatly appreciated by the demographic across Canada.

I see some familiar faces from having testified before the Senate committee on mental health. When that occurred, it created an incredible dialogue across the country about the mental health problems acquired by disabled workers or workers who sustain an injury in their occupation and suffer a subsequent disability.

It has triggered a lot of dialogue and allowed me to advocate and educate people in the government, health sectors and different groups across the country to create and push that dialogue forward.

I am sorry I do not have speaking notes today. I will quickly go through a rundown on things and I will keep track of what I feel you are looking for in the way of evidence, as well as what you would like to look at in more detail. I will then submit that information shortly after this hearing.

Speaking about poverty and what happens with disabled workers and their families is a devastating situation. The poverty is extreme and there is a perception about workers compensation across the country. Yes, we have all heard the stories and we have heard how bad things are — or most people have — but we tend to think of it as a problem that takes care of itself. If not, then it is a jurisdiction that is unto its own and so, therefore, we are excluded from dialogues and from us actually understanding what these people are facing once they have a subsequent disability.

How does this affect the community in the cities where the bulk of the population of Canada tends to be? However, it is not exclusively a city-dominated issue. I have lived up the coast in many small communities and they are a microcosm. As an example, in a small community of 1,200 such as Texada Island, if five miners sustain severe injuries in the limestone mines, the entire community witnesses the process from injury to poverty. The community witnesses the injured workers trying to establish the claim, trying to receive treatment in an expedited fashion — which does not happen any more, and then witnesses the onset of poverty.

Especially if the injured have children and a spouse, there are very specific issues related to who is connected and how that translates out into the community. Women have criteria and differentials with what they experience when the main income earner is permanently or severely disabled. Whether they are the ones who are disabled or not, the effects on women are huge because of the roles that they play in the family and in society, and really needs to be looked at in that way.

I have been trying to include and get women representatives from the demographic to come forward. In the past, it has been perceived as a male issue in terms of the so-called injured worker from the steel mill or whatever.

Identification is the first principle of looking at this type of situation. It is important to get the proper identification and then get an idea of the scope and size of this demographic. Then you look at the differentials between people who are affected and what this boils down to in the equation of poverty in the major centres where the bulk of people end up. Whether they live there or not, they sort of end up there, whether they are seeking medical treatment or seeking financial help through benefits, et cetera.

When the Workers' Compensation Board does not accept a claim, it is offloaded to other social benefit systems. This is much more severe than what we realize. There is a table of offsets whereby they take our prime benefit in Canada, the Canada Pension Plan Disability Benefit, and send it directly to the employer to offset their costs. I have mentioned this on a previous occasion before the Senate Social Committee when it studied mental health. They are pushing more onto the public system than the Canadian community realizes, in large part due to the social marketing by the board and the way that they refer to themselves that is not even close to the truth. The off-loading has been severe.

I think I will stop here because that needs to be looked at in the future, especially during this economic crisis. In my experience since 2005, when I started out to be an educator about and creator of a dialogue on mental health. I ended up being an individual and a national advocate. Certainly, even though the jurisdictions have a stranglehold on things, it has morphed into a repetitive situation across the country to the point where we have a national dilemma.

We have to look at the role of the Workers' Compensation Board across Canada and its responsibility to Canada's working families in dealing with disability, expediting medical diagnosis and treatment while maintaining a necessary income. The wage loss replacement amount used to be 75 per cent of a worker's gross pay, which usually equated a worker's net take-home pay. That needs to be reinstated and maintained, not off-loaded.

Currently, a person needs to have the full diagnosis before WCB will allow him or her to establish a claim. In a no-fault system, we should not be required to deal with things like that. The public system is loath to deal with it, and cannot and will not handle it in order to expedite a diagnosis. Therefore, the worker is caught in this position of litigation of reduced income or flat-out poverty on the heels of a physical disability.

This is very different from the Employment Insurance program. According to testimony at a Senate committee looking into the EI, only 34 per cent of women were actually obtaining benefits and only 38 per cent of men were obtaining EI, while they maintain a huge surplus of more than $50 billion, I believe. The systems in place have to be more than a simple exercise in fiscal prudence. They must serve the people, especially during this economic crisis. We have a serious problem with all of the financial off-loading.

I will mention something that I witnessed in Vancouver. I went to a meeting of the Greater Vancouver Regional District. Senator Campbell was there. They talked about the division of powers, about having a voice and about the funding given to the cities. Representatives from each district spoke. I sat there as an observer and spoke to many people after the meeting. Vancouver has the infrastructure and the city is wonderfully gentrified where I live in Cole Harbour, where potholes are not the problem. The issue spoken to unwittingly by all of the districts was the social determinants of health. It was something to witness. With everything that is happening these days, their biggest problem was the off-loading of services for the cities to deal with, while not authorizing any say in how the money is spent. Yet, they are seeing the social determinants of health and the barriers to health and income stability, et cetera, bubbling up through the drains. The worries were palpable.

We have a problem with the way that information is collected. If a Workplace Safety and Insurance Board, WSIB application is rejected, the information will come up in other social program areas that have been off-loaded, and you have to find it there. The statistics from the compensation boards have to be taken with a grain of salt. To understand how bad it is, you have to talk to the community and intermingle with the groups and individuals in the health sector who will tell you how bad it truly is. Poverty affects the family, which affects the community, which affects the population. We are at a pivotal turning point in Canada. We must take action on this issue.

Dr. Lisa Doupe, Consultant, PWR Health Consultants Inc.: Thank you for inviting me here today. I am honoured to speak before you. I welcome your interest in workers and poverty. A recent survey by Street Health in Toronto called, Failing the Homeless, identified that none of the participants who were homeless and who had WSIB benefits were able to maintain ongoing benefits. Some participants lost their benefits because they could not provide the medical reports. WSIB did not help to ensure that the participants had another source of income before cutting off their WSIB benefits.

My focus today is to inform you of another system that has emerged from the World Health Organization called the International Classification of Functioning, Disability and Health. The present system we utilize to manage our disability issues is based on an 1980 version of defining disability called, the International Classification of Impairments, Disabilities, and Handicaps.

I would like to make sure that senators are aware of this new model and the new definition. This new model has been implemented in the European Union and expanded to all 26 countries and the various departments. It changes from looking only at the person's dysfunction of an organ to looking at the mismatch between the person's physical and mental abilities to his or her environment, which includes the social environment.

I have been working with Dr. Carolyn Bennett and I asked her to look at where we stood in implementing this in Canada. She was able to get Parliament to do some research on it and the report came back to Dr. Bennett that Canada had a bottom-up approach to the implementation of this new system versus a top-down approach. That will fail us in the long run in that it will not meet our commitments to the World Health Organization and will not serve the needs of people with disabilities, whether they are on compensation or other insurance programs. I wanted to alert you to that new system.

I am a community physician and my background has been working in occupational medicine, both for major manufacturing as well as in community health centres. I am now working as a GP psychotherapist and I see very complex cases. Those are the only kinds of cases I deal with. Lack of coordination of the social determinants of health is one of the barriers for me to return people to function.

My patients do not talk necessarily about their health complaints, and I am always shocked. They talk about their need to function and return to work. That is what they say: I want to function; I want to work. They understand better than any of us the issue of poverty and how it links to ill health. I come here also as a representative expressing their needs to have people understand that relationship.

We in the health professions function in a complete tangle of programs and services of which there is little understanding by my health colleagues. There is little cooperation between the other health professionals in the community. This in itself causes delay.

The combative process is often because of the insurance need to manage numbers, whether it is cost or number of claims, then in the lack of this coordination and collaborative process, creates extraordinary delays in the actual processing of people's treatments and claims. The process in itself becomes an additional barrier to well-being and recovery.

I have done work both with the medical association and with my own colleagues to ensure that the changing definition of "medicine" includes "return to function" or "return to work." This was formalized in 1997 with regard to the Canadian Medical Association, at which point I was able to work with the federal government — HRDC at that time — with the assistant deputy minister Julyan Reid. We established a roundtable. We were able to get consensus of 16 stakeholders. We started a group of eight with the first roundtable and, by the end, all 16 sectors agreed on the principles of any disability program, if we were to envision it at that point.

It was interesting because, at that time, all the principles that were identified by the 16 groups of stakeholders were similar to the ICF. It is interesting that you can actually get agreement on the issue when you have something that is fundamentally right.

I urge this committee to look at the ICF.

I might add one more comment. There is an opportunity to look at the compensation systems. There was a report by Morneau Sobeco for the Ontario Workers' Compensation Board because they had an evaluation of their experience rating. The report ends with four options, with the purview to review it because of the underlying inefficiencies of it.

One of the options is to look at a world-class system. I see this is as an opportunity for the ICF to be integrated as one of the options to be considered, not only for the compensation system, but also for other insurance systems.

The Chair: I will ask a small question to start with. What does ICF stand for?

Dr. Doupe: The acronym stands for the International Classification of Functioning, Disability and Health. I have created some folders. One side is about the roundtable and the other side is an overview of the ICF.

The Chair: Leave that with us, please.

Dr. Doupe: There is much more information because they are much more developed and had expansion recently on the ICF. I am sorry for not explaining it.

The Chair: That is all right. There are many acronyms.

Dr. Doupe: I refer you to the experts who are working over there. One of them is an Ontarian from Queen's University: Dr. Bickenbach. The other is another physician by the name of Matilda Leonardo, from Italy. She chairs this project on behalf of Europe. I suggest that is a good place to start.

The Chair: Before turning the floor to my colleagues for questions, let me ask you both a question. Much of what you said relates to workers' compensation and that, of course, is under provincial jurisdiction. We are here as a federal entity. However, many people also end up coming into the federal sphere when you get to the Canada Pension Plan.

I think you are saying that many people are falling in the cracks and not getting sufficient income to survive.

I will take you back to the workers' compensation level first. Is it a problem that not enough people are being qualified? Is there too much red tape? Are too many people being turned down, or is it a question that, when the workers’ compensation runs out, many people who go to CPP, but do not receive as much income, falling even further below the poverty line?

Trace that for me a little, so I can understand what is happening there.

Dr. Doupe: Injuries and illnesses will occur, but one of the biggest problems is the lack of integration between the workplace and the health care professionals in the community. The timeliness and appropriateness of health care, and the coordination, are factors.

Often, the coordination of the injury or illness is also traced back to the workplace, so you must have good communication in the workplace. That means understanding people in the workplace, as well as the culture and the work processes.

The Chair: Is that relevant to the follow-up in dealing with the injury from a medical standpoint, or is it relevant to having to fill out forms to be able to get some income?

Dr. Doupe: I think it is critical in terms of the treatment and rehabilitation.

The Chair: Okay.

Mr. Powell: Workers compensation has changed dramatically since 2000, especially in British Columbia, which is leading the compensation systems and is homogenizing it to this new stylized version of compensation, which is predominantly focused to benefit the employer and the corporate sector.

What they will accept is different and the tools that they use to measure health and disability are for the most part, quite unconstitutional. I refer senators to a case one month ago: Plesner v. British Columbia Hydro and Power Authority. It was an issue of mental stress, which is post-traumatic stress disorder, PTSD. It is an issue very similar for returning soldiers who suffer PTSD and disabled workers. They face the same standards and methods of measuring health and disability in order to have their claim established.

This has become quite tight as to what they will accept as a claim. Over 50 per cent of people in Ontario and in B.C. are not even filing for a claim, especially those who are immigrants or who have language barriers. They are not going near it because it is too much of a problem and they are too scared of it; they will not do it.

The Chair: PTSD people, in particular.

Mr. Powell: I am just referring to workers in general, but the PTSD is an example. Now we have a precedent-setting decision that will affect the prime language of workers’ compensation, which was changed in 2002. It is only accepting an injury and subsequent disability that is derived from exactly the workplace incident. It was too narrow. The fact that they did not take into account complex PTSD — or chronic, which it used to be called — is a very good example, because they would only accept mental stress from an incident happening specifically in the workplace.

The Chair: Does that mean most of them are being turned down?

Mr. Powell: Yes.

The Chair: People are finding themselves unable to work without the revenue they need to survive so they are into poverty.

Dr. Doupe: It is worse than that. It sets up a culture of conflict and combativeness. Not only are they trying to recover, they are now trying to fight the system that, if they are an immigrant, they do not understand. They do not know how to navigate it and they do not have any resources to facilitate that navigation.

Mr. Powell: I want to go back to compensation, because most people think it is a problem that takes care of itself. When we are talking about a disability or a social policy or we have committees here and there, generally it is not included in the dialogue. I have been working very hard to ensure we are accepted into the discussions of people with disabilities, as an example.

With workers’ compensation, they are not accepting claims, period. It is a staggering rate of denial on claims. The medical criteria and arguments that they use to deny a claim are astounding. I do not have any kind of medical training, except for the 20 years’ experience I have with my disabilities in having to navigate the health system.

The Chair: That involves B.C. Do you have people in your organization that would say it is similar in other provinces?

Mr. Powell: Exactly. In Ontario, we have another problem with the early return to work programs or LMRs. Here we have a system where your true level of disability or function is not assessed. They are literally making an assessment on you — which will be your pension assessment, too — based on a functional impairment at the time. However, they are sending you back early before you plateau, so we have the working wounded going to work.

We have people not reporting — up to 50 per cent, which is significant. We have the denial of claims that are hung up in litigious medical evidence battles with the board that stagger the imagination, all of it leading to a mental health injury. Mental health is not integrated. Therefore, an ordinary worker in Canada — which I consider I am, coming from the shipyards — does not stand a chance at fighting this. It is not like the old compensation system, sir; it is not what was devised originally.

If you go back to the original 1914-1919 agreement in Ontario, it is actually quite interesting to see that the principles they had surrounding health and disability measurement were remarkably good. They were based on people's differentials; one broken leg on one person may be totally different on another person, who might only have one limb.

They have been trying to create a system where everyone gets the same and remove the differentials. However, the biggest thing that causes the poverty — we could maybe get into it, if you want to explore that area as to how much it is and how wide it is — is where you are immediately into claim denial. You cannot get the true level of disability established because it is not a no-fault system anymore, and they do not expedite tests in order to diagnose people and to properly assess the damage from the actual injury.

The Chair: I will have to stop you there because we are running out of time.

Senator Cordy: Dr. Doupe, you talked about Canada having a bottom-up approach rather than a top-down approach. Could you explain that a bit? I think you said it is doomed to failure; it will not work well. Could you explain what it is and how perhaps we should change it?

Dr. Doupe: What is happening is that occupational therapists and some researchers are doing research projects on it and training their professionals. It is only going through very small groups.

The physicians who often have the responsibility — although it is now a shared responsibility — are not aware of this system. They are not aware of the new and changing terms and, therefore, not aware of the importance of the social determinants of health and the importance of the environment. If you start off with a wrong system, you get the wrong answer. That is my concern.

In Europe, the Prime Minister of Italy, who was the President of the World Health Organization, took control and said they would implement the whole system in Italy. From there, it went to the rest of the European Union.

Senator Cordy: They started at the bottom.

Dr. Doupe: No, at the top and then it went down, whereas we are just bubbling up with little research projects rather than the directive coming from the top down.

Senator Cordy: We need a national will, is that what you are saying?

Dr. Doupe: Yes, a national will.

The Chair: I am afraid we have run out of time because we got a little behind schedule. If you have anything else to say — and I sense you do, Mr. Powell — can I ask you to put it in writing, please, and send it to us? I would love for us to keep going on this dialogue longer, but unfortunately we are past our designated time for adjournment.

Mr. Powell: Can I make one statement?

The Chair: Yes, one statement.

Mr. Powell: I appreciate the pressure that everyone is under. There are many issues to cover. We did not come here today expecting to solve the problems or even identify the state of the crisis.

I want you to trust me long enough to understand that I have had my fingers out into the community and have spoken to a great many people and we are in a crisis. The unfunded liabilities in the provinces, in the accident funds, have been wiped out by the attempts of unconstitutional legislation, which has been struck down continually in the courts.

In B.C., $900 million in the accident fund sounds great, but it has now been reduced and reduced because the courts and the tribunal have overturned the decisions as being unconstitutional. They have had to pay back $400 million here and $200 million there, et cetera. Since 2002, this is what it has evolved into.

This situation with WCB in Canada has morphed. It never started out as a national program; it morphed into a national program. The powers and the prerogative right of law that they have was certainly not given to them for this intent — to look for exclusions from the Charter.

The case I just mentioned is going to be really significant for those who are on the Senate committee on mental health because they will remember back to the talks on compensation. I will be sending this for everyone. I could not afford to print it up. It is part of a brief that I am preparing for the Mental Health Commission, which is where we are going after this meeting.

It is significant, because in the U.S, the prime language of their compensation system was imported word for word in 2002, and it was struck down in precedent in Nevada, based on a mental health claim.

We are paying for the off-loading to society already. They are in serious trouble across this country with the system, and I know that they have been at the Senate Banking Committee several times and have been told to deal with their own unfunded liabilities and that they would not be given social program status.

I want to this to be a start because we never intended to cover anything, and I am smart enough to know the limitations. However, I ask you to seriously consider, with your wisdom, taking this back to the standing committee. We need to look at striking up an appropriate committee to look at these very comprehensive conditions and issues to do with disparities in law and health. We must look at the service and effective workers' compensation schemes in Canada.

That is what I think we need to do, just as EI did. It has never been done.

The Chair: Thank you very much. As I say, feel free submit something in writing to us to expand further on this subject.

We will adjourn this segment of the meeting, and we have a small in camera session, which should take about three to four minutes.

(The committee continued in camera.)