Royal Commission on Workers' Compensation in BC

Feb 20 Full Day Session

Name: Ron Buchhorn

Title: Vice President – Rehabilitation and Compensation Services Divisions

Affiliation: Workers' Compensation Board

Staff Present: TR, GG, OE, GS, SN, PL

Notetaker: Steven Noble

Date: Friday, February 20, 1998

 

GENERAL COMMENTS

- Topics today include: Compensation and Adjudication

- Adjudication Models

- Statutory and Policy Requirements

- Evidence Gathering

- Medical Issues

- Delays (Service Delivery Initiatives)

- Accountability

 

PRESENTATION

I am pleased to have the opportunity to present a brief overview of the issues associated with adjudication in the compensation and rehabilitation services division. Particularly where we were, where we are today and where we hope to be by the end of 1999.

When workers are injured or become ill because of their jobs they expect and are entitled to income continuity, effective treatment, help in returning to work, and respectful service – all goals of the Workers' Compensation Board strategic plan. Very little of our business processes are the same as they were 3 years ago when I was appointed to my present position within Compensation Services. I would like to commend the management and the staff of our organization for continuing to improve on all key performance indicators in the midst of sweeping technological change which has affected every employee in our organization. I would also like to recognize the Compensation Employees Union for its leadership in dealing with very complex labour relations issues that such transformation brings with it. It is hard for me to believe that just three years ago we were a bureaucratic, paper-based, reactive, and inwardly focused organization. While we have a long way to go our transformation to a compassionate, pro-active, workplace based, and service driven organization is well underway. Central to this new way of doing business was our investment in our electronics claims processing system or EFILE. This system has allowed us to change our adjudication model to incorporate call centre technology with expanded hours of service. Central adjudication of complex claims and decentralized delivery of ongoing service to workers and employers to our interdisciplinary workplace based case management initiative – Ian Munroe, our Executive Director will be speaking to these initiatives in more detail. Our staff was pleased to have Judge Gill and Commissioner Stoney visit our Prince George Case Management Pilot to experience this new service in person.

When we last presented an operational review to the Commission we stated our intention to re-engineer the adjudication process from least complex to most complex claims. Our initial effort was to improve front end processing with much higher income continuity and client satisfaction outcomes. The next area of change was in the complex entitlement of claims where we have achieved improved income continuity, improved timeliness of decision making and triaging of clients into our soft tissue continuum of care and with achieved a significant reduction in the number of adjudicated claims on our 28 day list or our 28 days after receiving application.

One side of the call centre or the entitlement unit has accepted claims; certain injuries or clients are triaged immediately into our case management process. This allows an interdisciplinary team comprised of a case manager, vocational rehabilitation consultant, psychologist, physician, occupational health nurse, and a prevention officer to discuss the claim and develop a medical, clinical, and return to work plan.

The role of the Board physician in that model is transformed from that of a gatekeeper to that of a collaborative resource to the attending physician. By jointly developing a medical and a clinical care plan the Board’s physician and the worker’s attending physician minimize the opportunity for conflict and work as a team in the best interest of the injured worker. By visiting the workplace to develop a return to work plan with the employer, worker and worker representative the case manager becomes a facilitator for the employer and the worker to engage in early, safe and durable return to work. On another front the board has come under heavy criticism for its adjudication of activity related soft tissue disorders or activity related soft tissue disorder.

We recognize that work site visits to assess risk factors are fundamental to carrying out our mandate in accordance with Chapter 4 of our policy manual. To improve our performance in this area we have recently trained an external provider network of occupational therapists and we have trained our adjudication staff on a workplace based assessment process for the adjudication of activity related soft tissue disorder claims. Where our staff do not have the skills to engage in a proper ergonomic assessment of the workplace to determine entitlement and engage in preventative measures they will be accompanied to the workplace by a trained occupational therapist. This professional will assist in the workplace assessment and assist the worker and employer in making job modifications where appropriate. Our prevention division will receive data from our claims experience and from this initiative by employer and by industry and this will assist them in their workplace targeting.

In addition on the subject of activity related soft tissue disorder claims Dr. Michael Woodchuk of the Alliance Healthcare Group – one of our clinical rehabilitation providers – is collaborating with our medical department to institute a best practice rehabilitation continuum for activity related soft tissue disorder injuries.

Once this protocol has been developed workers will receive therapy through our provider network for these injuries. The last area of concern in the adjudication process has been in the disability awards area. Injured workers queued for up to fourteen months for the determination of their pension entitlement. Our existing process again were internally focused, rife with re-work, and inconsistent in the area of impairment evaluation. In collaboration with the ARCON Corporation the Board has developed consistent protocol and procedures for the medical evaluation of functional impairment.

In the area of subjective complaints the Board is evaluating protocols that were developed by the North American Disability Evaluating Professionals or NADEP.

In addition we have written our disability evaluation schedule into our software so that we can now calculate percentage of impairment formulas automatically as opposed to by hand. A proof of process pilot is being conducted in the Lower Mainland as a joint initiative between Disability Awards, Medical Services, External Providers, and ARCON Canada. Our objective is to provide consistent, repeatable Permanent Functional Impairment exams, streamline the pension calculation process and improve customer service by reducing pension processing times from months to weeks.

As you have observed there is much activity and change occurring within the Compensation and Rehabilitation Divisions. Our management team was not and is not yet satisfied with the service that is being provided to our clients - the injured workers and employers of BC. Much improvement remains to be done. As in any large organization change is difficult to implement particularly when steeped in culture, as is the Workers' Compensation Board and its related agencies and stakeholders. To complicate our situation change no matter how well intentioned is never easy within the workers' compensation system. Stakeholder trust of the Board has never been high. With any change accompanied by much skepticism and cynicism. Despite this I am proud of our management and staff who have been resolute in their determination to improve our service, improve public and stakeholder confidence and return the Board to fully funded status. We remain one of the few boards in Canada to have achieved fully funded status without having to reduce worker benefits or changed our very conservative actuarial assumptions. Let me take a brief moment to share with you our progress on some of our divisional-wide key performance indicators and then Ian Munroe will briefly share our new adjudicative model with expected outcomes. Following that we would be pleased to answer any questions.

Whose Fault Was it –There has been much discussion on how did we get ourselves into the mess that we seem to have been in and I use a quote from Deming because it is not appropriate to blame other people, I don’t’ think, for this situation. And Deming basically said "When you find service or performance failure 85% of it is caused by your business processes not by the people involved. And that is what I’ve been saying to our staff for the last three years because it is not your fault that you were given a 1950’s paper-based system that had not been re-engineered, that had not had investment in technology to do your business. And it is small wonder that we were failing. In terms of claims first reported to the Workers’ Compensation Board you can see that since 1990 we have had a slow decline in the number of claims to 186,000 in 1997.

In terms of income continuity which is how many workers do we pay within 17 days. The 17 days is the three-day reporting period and then a two-week pay cheque. That is how the corporate standard of 17 days was arrived at.

You can see that over the last ten years – in the last two years we have achieved higher income continuity than at any time before in the history of the Board. In addition to the 61% of workers who receive their pay cheque within the 14 days from application there are a number of public sector employers who maintain income continuity for their workers. Now that is a great advantage to workers so all hospitals, municipalities, BC government, federal government employees continue to receive income continuity and the Board reimburses those organizations for Workers' Compensation Board payments.

So the good news is that the income continuity level is higher than the 61% if you factor in the public sector, however, the problem with that is that because public sector employers maintain income continuity there are extremely tardy in reporting injuries to the Board which creates a significant problem for our adjudication process. It is not unusual to find 28 or 25-day delays in the reporting of injuries in the public sector.

In terms of average Timeliness in decision making –so I’ve shown you the income continuity that is achieved – what about average timeliness of decision making and we have reduced that from 28 days in about 1994/1995 to about 21 days in 1997 –and our strategic plan and corporate business plan calls for a 17 day average timeliness of decision making. We believe that is achievable within the next two years.

Duration of Claim – how long are people off work when they file a claim -in the aggregate sense – and you can see that in the late 80’s and prior to that the duration of claim averaged about 35 days – it went up significantly in the early 90’s to a high of about 45 days and then it came down to 40 days in 1996 and it has gone up to 42 days in 1997. Without good data – without being able to break down your mix of claims and analyze by industry, by employer what is happening with your claims inventory it is very difficult to speculate about what causes increases and decreases in duration. Certainly adjudication practices have a role in that - the mix of claims has a significant role in this particular indicator. We are getting the type of data that Mr. Fattedad was able to show you on the employer profiles with respect to what is happening in the claims arena.

The prior slide was total duration – so that is all claims – all years – this is – how about injuries that occur this year that are closed this year and the worker has returned to work and again you can see that we were slightly trending up for a few years in the early 90’s and then we started to trend down and then in 1997 we’ve had a slight up-tick.

Our 28-day list is important to us from a client service perspective –these are the number of workers who are sitting in our system for more than 28 days that have not received an adjudication decision. You can see that over the last three years we have put a lot of focus on this and again Mr. Munroe will speak to the new business processes and how we have been able to achieve the reduction from about 4500 people who were waiting in the system for a decision down to the current level of about 1300 - 1400 people. Now some of this is beyond our control –in this population of 1300 you will find people who have been involved in motor vehicle accidents who have the option of going either Insurance Corporation of British Columbia or Workers' Compensation Board. They have 90 days to make that option so they would be in that inventory of 1400 people waiting for a decision because they have not yet exercised their option in terms of which system they wish to use.

Total Wage Loss Days’ Paid –again a fairly dramatic increase over the last ten years – reduction in the last three years and then an up-tick to almost 3 million days’ paid in 1997.

Disallowed Claims –you can see that over the last ten years this has not been a flat indicator – it has gone up, down, sideways – in the mid 1990’s the disallow rate has increased and then has rolled over and come back down again. I’m not going to deal with that in a whole of detail in my opening remarks. I suspect that Mr. Steeves and Mr. Sayre will have some questions with respect to that particular indicator. The Disallowed Rate as a percentage of claims filed within the system – again - is running at about 4-½% in 1997. It was historically running at about 3-3 ½% and I believe that Mr. Pinto, earlier in the week, talked about some of the reasons why we believe that the Disallow Rate has started to rise; the mix of claims is different. We are seeing a lot of claims that are not traumatic injuries – they are much more difficult to adjudicate in terms of causation and certainly that would have an impact on the Disallow Rate given our current legislative and policy parameters.

Appeals Received by the Review Board –we tracked this as an indicator both from a client satisfaction perspective and from a quality assurance perspective. We can see that appeals rose fairly dramatically in the early 1990’s and then has fallen in 1997. We attribute that fall to the implementation of the continuum of care, which has taken a lot of tension out of the system around short-term disability claims. Claims closure is no longer acceptable as a solution. We believe that return to work is what we value in the organization and that has taken a fair bit of the tension out of the appeals process with respect to short-term disability.

We also track - Appeals Received by the Review Board – Part 1’s and Part 2’s – and you can see for the last year and a half the number of Part 1’s being filed at the Review Board has fallen off fairly dramatically and again we believe that’s a result of the focus on early and effective treatment and return to work initiatives.

While the appeals had been going up in terms of number of appeals filed which is the yellow and red snack bar it is interesting to note that actually Review Board Findings – it is interesting to note that the actual allow rate in terms of allowing of appeals has remained fairly flat. So while the volume has increased the number of allowed claims has remained flat so as a percentage – the percentage of allowed claims has come down from an historical of 44-45% to about 35% in the last couple of years. And this just shows that again – what percentage of the time an appeal is filed at the Review Board is the Board’s decision upheld entirely and you can see that in the early 90’s and late 80’s the Board was only successful in 50-55% of the appeals that were moving forward. That has increased to about 65% and in fact I just got January’s numbers from the Review Board and that trend is holding at about 65% allowing of the Board’s decisions – 35% overturning the Board’s decisions in part or in their entirety.

If you are a worker or an employer and you wish to appeal a decision – how are we doing with respect to disclosure of files so that you can proceed with your appeal? You can see that again this area has been re-engineered with a significant new technological platform and if you wish to have your file disclosed at this particular time you will get it within 6 days on average. That’s down from many months earlier on. Now that is an average – there are some files that have lengthy delays associated with disclosure because in the paper world if your file is at the Review Board or the Appeal Division it doesn’t come out of there and so we can’t get our hands on it to disclose it. In the E-file world we can disclose that file while it resides in the Appeal Division or the Review Board or anywhere else.

Total benefit payments made to injured workers over the last ten years – and you can see that dollars went up significantly in the early 1990’s and has plateaued – reduced slightly in 1996 and then back up a bit in 1997. And the colour bars just indicate where the dollars are being spent. Red being the short-term disability; yellow being long term disability or pension component and on in the nature.

Productivity – it is very difficult to prove productivity in a paper-based environment unless you add staff, which diminishes your productivity or takes it into the negative. If you invest in technology – give people new tools we believe that we can improve productivity without adding staff or administration dollars. And the way we calculate productivity is how many claims first reported; how many staff in the Compensation Services Division and as a ratio then what is the staff per 1000 claims first reported. And there is the 10-15 year history of productivity. Improvements in productivity in the 80’s – primarily I believe associated with declining claims then a significant increase in the claims in the late 80’s and early 90’s and absent any kind of different way of doing business – your productivity is going to slip as the system becomes more complex. We’ve put a major focus on client satisfaction and as the Royal Commission is aware we survey 900 workers a month through the Angus Reid Group on a variety of indicators that they have designed in collaboration with stakeholders and you can see that when we started this process in 1996 we had a base line of 7.2 out of 10 or 72% client satisfaction. We have steadily improved that client satisfaction to the high of 83% in November of last year. This is sensitive enough to pick up peak vacation periods – Christmas periods – you’ll notice that in the summer and in December the client satisfaction goes down because more people are off with vacations. So it is an extremely sensitive tool – it allows us to determine what needs to be done – what needs to be done – with respect to staffing and we have engaged in a number of training initiatives including having all of our staff go through "SuperHost training", client satisfaction training, dealing with angry clients, a number of initiatives to improve the skills that our staff have with respect to dealing with clients.

I’ll turn the presentation over Ian Munroe who will deal with the new Adjudication Model and the Case Management Model and then as I said we’ll be happy to answer any questions.

IAN MUNROE

This initiative for the Compensation Services Division began in early 1995 under the umbrella of the corporate strategic plan. When we set out to really, totally look at the way we interacted with our claimants and our stakeholders and constituents with a goal of transforming service throughout this system and some of the indicators that I think Ron has shared with you demonstrates that we have had some success in that regard.

We also said to our staff that we would find time for them and for us. And over the years I think that that in fact has proved to be so as well.

In early 1995 we decided not to vet some of the conceptual thinking on the whole thinking but rather than doing that take some of the conceptual thinking of the organization that have been developed in the early 1990’s through some initiatives and take those thinking and those concepts and some base line technologies and demonstrate the worth of those in a pilot site. We took one of our Service Delivery Locations – our Coquitlam office – and moved it out of our main head office facility and moved it off site and if became our main R&D or research and development site for the better part of 2 years. And I notice this morning in our audience one of the adjudicators, Bill Brewer, is with us who participated during that timeframe in our research and development initiative. We established I guess four or five fundamental key strategies that we wanted to focus on through these initiatives – improvements in Client service; operational effectiveness – we needed to as we were changing the way in which we performed the way we interacted with clients and the new positions that we were establishing in our organization with new technologies; we knew that we would have to concentrate heavily in the area of staff development; and lastly we said we concentrated initially on the front end processes – eventually moved with a more intense approach to case management.

Ron talked about our 1950’s – like environment that was prevalent in that timeframe – in the Richmond Complex for example we’re receiving about 1.5 million forms from workers, from the medical community and from the employers. Those 1.5 million forms in this complex and roughly 3 million forms a year have to be – had to be manually processed in a very archaic way and one by one essentially to catch up to the claim. If someone called into the Board at that time looking for information in respect of their claim file it was very unusual for the person they got in touch with to in fact have the claim file with them so we would have to take a message, have one of our file clerks go into the organization somewhere to eventually find and locate the claim; bring it back to the officer and in time, which was typically a week or more, return the phone call to the claimant. Again because of the forms that were rattling around the system not all of the information would be in the claim file and obviously a very difficult task for our Board staff to try and improve our service in that kind of environment. When we look at just the "C" claims for example – our "C" claims are our more complex claims. It was taking us at that time on the left side – it was taking us 67 days to make an entitlement decision. And that was because of the information chase and the information waiting situation that we were in – waiting for the relevant information from the parties so that we could entitle the claim. So, over two months of waiting time before we were in a position to entitle and at the – during that time they were not in a position to effect a care management or a case management approach for those claims.

The features of the new model for the front end processing incorporated these elements: a very high concentration and focus on addressing the time lags – the drag time that it took us to receive information for adjudicative purposes – we felt the new model should be more specialized than the previous model that was in place in the organization. We thought that on site adjudication and case management was going to be very important for the organization and the ability to triage simple claims to more complex claims in the specialized model.

This is a busy slide but I did want to spend a minute on it in that EFILE has become our main information enabler for the Compensation Services staff and it has become I guess the hub of our information wheel and has – it has and is serving all of the organization from client service representatives – the entitlement officers through to case managers – including vocational rehabilitation consultants and the other members of our staff throughout the division as well as the rehabilitation centre.

E FILE has been incorporated as part of our overall information services strategy for the Board and integrates itself into our corporate data base structure and we, therefore, pass information to and will receive information from the other information systems that are being developed in the Board – whether it be assessments or prevention or other arenas of the Board. So this is being built – not in isolation from a divisional perspective but under the auspices of a corporate information systems initiative.

The other area that is relevant about this strategy and there was discussion about this yesterday and earlier this morning about the timeliness of receipt of information. We purposely put in place as part of our information systems strategy an EDI linkage plan between ourselves and injured workers, employers, and the health care providers with a plan to bring that information to us much faster through electronic means in field of data formats. And those initiatives and undertakings are in various stages of implementation but we do have a number of those under way and certainly would be prepared to talk about them in more detail if there is a wish to do so later. This has been a very major undertaking for us as a division and again has significant implications for our staff moving from a paper claim file environment into a fully automated, paperless environment.

Utilizing, then, that technology we developed a new business model and took a number of steps out of the process and essentially went to a three-stop model – from a client service perspective. Our client service representatives are now occupying or residing in four call centres located throughout the province. One in Richmond, one in Kelowna, one in Prince George to serve the North and one in Victoria to serve Vancouver Island. Client service representatives are the first point of contact for our claimants and for our other stakeholders and constituents and have online, real-time information available to them through EFILE. For example just to give you a feel for the volumes that they are handling in this new environment. Our Richmond call centre this week will handle roughly 6000 calls and each of the other three call centres will handle about 1000 calls each. So there is a high volume of interactions between our call centres and our clients and claimants. In the entitlement arena we are triaging more complex claims into the entitlement arena for the more complex entitlement decisions for time loss claims and then the last piece of the organization model is the case management aspect of it that I will speak about in more detail.

The client service representatives –I briefly mentioned is we think extremely important to the fabric of our new service delivery strategy. It is a new position – it’s a new classification with much improved training that has elevated I think our ability to serve and to communicate and interact intelligently and in an informed way with our claimants. The other important change that we’ve made as this model has evolved over the last three years is that we have introduced entitlement decision making to the role of a client service representative. They are dealing with what we call routine claims. And those in short form are best defined as those claims that are not protested – there’s a specific incident and there’s good medical information. That represents somewhere between 40-50% of the time loss claims. Our client service representatives are able to quite rapidly adjudicate those claims in a friendly fashion – getting in touch with all of the parties as part of the process and making a timely entitlement decision. Those claims then that don’t make that test are referred and triaged immediately into the entitlement arena for more complex entitlement scrutiny.

I’m now going to move to the Case Management Model –again similarly to the approach that we took with Coquitlam we decided not to take case management out to the organization at large in one fell swoop but rather pilot it and prove out the concept and refine the concept before rolling it out to the organization at large. We have had the pilot up and running in Prince George – our area office in Prince George for approximately one year and it has been running in one half of the Prince George office and we are just in the process of introducing case management to the other half of the office as well as our North Shore or North Vancouver claims office here in the Lower Mainland.

Again, in 1995 and early 1996 as we were surveying claimants and surveying the employers – we were having focus groups – we were listening to worker representatives and we were listening to all parties and when we talked about the more complex claims in the system there was unity of feelings about an opportunity for us to improve our overall service in respect to our more complex claims handling and also improve our ability to manage claims and improve return to work outcomes.

These comments and themes were very much consistent with workers, with employers and unions during those timeframes. The Angus Reid information very much substantiated that. Our "C" claims in November of 1996 have a – had an overall client satisfaction of 6.5 on that scale of 1 – 10 where our less complex claims had a satisfaction index of approximately 8.0. So there was a significant gap of about a 1.5% on the scale – some in the organization said that we should be understanding of that – that obviously more complex claims would have a lower satisfaction level and perhaps that is valid but nevertheless we saw that there was an opportunity for improvement.

When we looked just at the claims process in respect to the "C" claims handlings those that would be eventually handled in the case management arena – again we saw that linear pass off handling that was prevalent as well in the short term claims handling arena.

Typically as I mentioned earlier it was taking us 67 days to entitle a claim –we would then go into a kind of paymaster mode where we would pay the claimant every two weeks – we would typically get a form 11 from the attending physician every two weeks – and eventually we would move into a medial exams and team meetings at approximately 24 weeks – vocational rehabilitation perhaps as early as six months but typically much longer than that and no I guess overall care plan for the individual claimant in the system.

So we provided to our staff in Prince George - Guiding Principles –that we thought we could incorporate in an approved case management approach for those "C" claims in the system. We felt early intervention was extremely important – rather than waiting for time to drag on and take reactive measures – be proactive and much earlier in the management of claims; frequent visits to work sites – again we thought were going to be extremely important to this model so that we were dealing with workers – dealing with worker representatives and employers at the work site - understanding the needs of the parties – working more closely with the medical community and getting return to work plans established at their site as opposed to and through paper interactions.

I am going to spend a minute or two on another busy slide but just to give you the sense of the business model and for case management that was established as a result of those guiding principles through the Prince George initiative. And we are having our more complex claims referred in the case management either at day one or day two if they are identified through Triaging rules by the client service representative or latest timeframe week five if a claim has gone five weeks and we’ve not seen a return to work outcome from our entitlement arena that would trigger a claim into case management so we are now talking about a timeframe of days or at most five weeks. During the following week the case manager has a responsibility to review the situation on hand, be in touch with all parties and come back to a team meeting the following week and present to the team the information that he or she has available from the parties after having dialogued with all the parties with a base line case plan being formulated in their minds that they can share with the team – with our internal expert team and I’ll talk in a minute in more detail about who that team consists of. The next step then in the next week or so would be that the case manager takes out to the parties the case plan and insuring that the worker, the worker representative – if appropriate, the employer and the attending physician to a clinical care plan, sign off the plan so the intent of this is to ensure that the Workers' Compensation Board isn’t going in one direction, the attending physician going in another direction and the employer having a different view of what is appropriate in terms of a return to work plan but that all parties subscribe to and sign off on a plan. We would then move into program delivery agreed upon by the parties and that may be graduated return to work or it may be medical interventions or the continuum of care or other measures. Through the process there is ongoing results monitoring, EFILE being the enabler to this whole process and any corrective actions being undertaken not only by our internal team but by the external parties. That that is intended to give you a feel for the lifecycle – the approach that we are taking in a much earlier timeframe in respect to claims. The case manager has a new role and a new responsibility and new accountabilities in this model and really is the overseer of the claim from beginning to end for the claimant but is also responsible now for managing the team. And it is a very much changed role from that of the adjudicator in our current organization structure and the case manager then is responsible for overseeing and ensuring that the various parties and various activities in respect to these areas are being professionally managed at the appropriate timeframe and in the appropriate way.

So the Case Manager role is the primary point of contact for the worker managing the case through to conclusion, getting out in the work site frequently and having ownership and accountability from beginning to end. I’m not going to speak in detail to this slide this morning – Dr. Blair will be spending more time on it in his presentation on day two of the next session with us so later today we’ll have Dr. Don Graham who is our medical advisor from Prince George and Dr. Blair if there is a need to respond to questions talk about the role of the medical advisor in this model. We’re are also as a result of this change and to some degree the role of both rehabilitation consultants and other participants of the case management team.

The third busy slide – we are monitoring and tracking the activity of claims through the Prince George model and I just want to talk about a couple of highlights – of 2456 claims coming through the half of Prince George that is on case management you will see that 1200 – or roughly 50% are being able to resolved now by our client service representative in the call centre in Prince George without interaction or involvement by the other parties. A thousand of the claims are moving into our entitlement officer in that they have met the test for a more complex entitlement requirements so they have moved into entitlements for a more complex entitlement activity. One hundred and sixty-eight claims are immediately triaged into case management on a day one – day two kind of scenario and 195 moving down from entitlement to case management. The bottom line of that is roughly 17% of the claims that we are handling now in Prince George through the case management model are actually being referred into case management – that’s much less than our current model and much less than we anticipated going into this thinking that probably as many as 25% would actually be handled in case management.

So how are we doing? You’ll remember that in 1996 our "C" claims had an overall indicator of 6.5 – in September, 1997 through Angus Reid we re-surveyed or surveyed those claimants that had participated in - a sampling of those participants who had participated in the new model and you’ll see that their index had increased from 6.5 to 8.0. So we think from an Angus Reid client satisfaction perspective we have definitely had some significant progress. We have talked to and surveyed the other stakeholders and again the feedback that we are receiving is quite consistent. The employers, the physicians, unions and I think most importantly our staff, have found this model to be much more effective and much more proactive and impactful positively so for our claimants whom we serve. So we see that this model is definitely going to have impacts – very positive impacts for our injured workers, for employers, the medical community and our employees in the Workers' Compensation Board.

[Judge Gill]: Mr. Buchhorn, are copies of those slides available for the Commission either later this morning or at some point in time.

 

A: Yes they are.

 

QUESTIONS

 

JOHN STEEVES:

Q: Mr. Buchhorn, and members of your panel, the - first of all you’ll appreciate that – or let me ask you this is an on – this is a new project – the managed – the case management model, correct?

A: That’s correct.

 

Q: And there is - I looked at the Strategic Plan and there is some written up in there –and what other documents should we be looking at to understand the case management plan?

A: There exists business cases, process documentation, documents, I believe we have made them all available to the Commission we can certainly make them available to counsel if you wish those documents. This – the case management initiative in particular was written up at the conclusion of the prototype with the results, the challenges, the issues that needed to be resolved – we can certainly make those available to counsel.

 

Q: I appreciate that very much – if you could arrange that through Mr. Bates –

A: Yes.

 

Q: Thank you. Now before we get to that I think it’s important to understand where we came from –and that is before the case management model and in fact we are in a transition period now – correct?

A: That’s correct.

 

Q: And the – can we call the – first of all can we call it the previous model and can we call it an adjudication model just to give it some names?

A: We can although both are adjudication models.

 

Q: Yes, I’m just looking for a name that is different than case management. So can we call it&ldots;

A: The previous model and the future model?

 

Q: Yes. Well, okay – now the previous model was started in – what - the 1970’s and Chairman Eisen – have I got that right?

A: That’s correct.

 

Q: And the concept there – and I was looking last night for some of the early decisions – I didn’t see any that jumped out at me – but as I understand it the concept there was – that we would have well trained and well paid adjudicators with a degree of discretion and who would – who would control the file – is that your understanding?

A: That’s correct.

 

Q: And the – so the claim would come to the adjudicator, under the previous model, and the adjudicator would make the decision and about whether a claim should be accepted – the wage rate – the referral to disability awards – referral to rehabilitation – and the concept was that the adjudicator was - had the file and it was going out back and forth to the various people involved in it – is that a fair summary?

A: Yes it is.

 

Q: And just so we have it – in the – in the chapter 12 of the manual - the claims and adjudication manual – the claims and rehabilitation manual – this is the claims procedures – 96.20 describes – the claims officer or the claims adjudicator determines whether compensation is payable and so on –

A: Yes.

 

Q: And then in chapter 11 gives similar authority to the adjudicator – general referrals to rehabilitation services made by the adjudicator and disability awards for employability assessments and so on – so that is the previous model that we are talking about?

A: Correct.

 

Q: Actually I left one out – in chapter 12 – the 96 – no I’m sorry – 96.3 says that the disability awards officers, adjudicators determine whether a worker’s injury or occupational disease has caused a permanent disability so again that’s&ldots;..

A: Correct.

 

Q: The centre of the previous model is the adjudicator. Now the concept of the case management model as you say – are we calling that the current model?

A: The future model.

 

Q: The future model. So we have the past and future and nothing in the middle. And first of all the – we heard I think on Monday that the case management model has been approved by the Panel on the basis of regulation but not policy – is – have I got that right?

A: Yes. We have made no policy changes with respect to the case management model. We – it’s a resolution that gives the division approval to proceed with two pilots – one in Prince George – one in North Vancouver and upon conclusion of those pilots and upon having an evaluation of those pilots the Panel will make a decision on whether we proceed. Having said that we asked the Policy Bureau and we had our own policy and practice people review the way we would do business in the case management model to identify whether there were any policy issues that needed to be resolved. And there were. One of them was to change the word "adjudicator" to the word "case manager" which I think goes to Mr. McGinn’s point earlier in the week in terms of how detailed the policy manuals are. And whether or not that is a policy change.

 

Q: Yes and to be clear there is a discussion at the Board about whether procedures versus policy and whether it includes both.

A: Right.

 

 Q: And so the panel has approved the case management model as a – by resolution – and as you say there are no changes to policy and to get it out of the way – there are no changes to the Act.

A: No and one of the – one of the purposes of the pilot will be to have experience with the model and identify potential policy or practice issues that may require change and the Panel would want to be apprised of that.

 

Q: Yes and some of those changes might be like changing the name of the manual from adjudicator’s to case manager’s and things like that.

A: Right. Or more significant.

 

Q: Yes – I was coming to that – now the - I’m looking at the slide –they aren’t numbered but – do you have that copy there?

A: Yes I do.

 

 Q: It is the fourth page from the bottom – it says scope case management and circles around the – do you see that –

A: Yes I do.

 

Q: Now and then there is a slide before that –at the bottom of the previous page – and the first one – the top of the page where the scope case management slide - the case manager’s role – that is the case manager, correct?

A: That’s correct.

 

Q: And the concept here is that these various services – if you like - are spinning around and – with the case manager.

A: Well to the contrary – I think they spun around in the old model – they don’t spin around in this model.

 

Q: Okay – lets talk about that under the old model – the previous model –the - one of the – come to your point in a minute – but one of the problems for the worker in the previous model was that every time the phoned the Board or every time they talked to – got a letter from the Board it was from a different person.

A: Yes.

 

Q: I’m telling you anything new?

A: No.

 

Q: And what was the reason for that?

A: Well it was – it was not a simple reason – it was I think had many dimensions to it – one was the right of adjudication staff to exercise seniority – to opt into different areas of the Board or different Service Delivery Locations of the Board – a second reason was that people get sick; people take vacations etc. There are a number of reasons why that would happen – the file was not available to a particular decision maker and so as Mr. Munroe pointed out you would phone in – you couldn’t get satisfaction because the adjudicator would say the file is at the Review Board you have an appeal underway now would you like me to pull the file in which case your appeal will be delayed or would you like me to answer your question when I get the file back – so it was I think a very – as I said inwardly focused system that didn’t very well address the needs of injured workers to get information and get decisions.

 

Q: There is no dispute on this side of the room on that. The question is why –and if we just take those - your explanations in order –the third one – that is access to the file – and that is an EFILE question isn’t it?

A: I think we’ve resolved that through EFILE yes. I think there is simultaneous access to files now.

 

Q: Yes, so it is not a case management issue?

A: No.

 

Q: Yes; and the first two issues you gave - explanations you gave –about people bidding out to other jobs – people being off sick and on holidays and that – that is going to happen under case management as well isn’t it?

A: It won’t happen to the same degree because we have assigned teams of individuals to deal with specific employers and specific clients who would be employed by those employers. So&ldots;

 

Q: By clients you mean workers?

A: Yes.

 

Q: Yes.

A: So, if you want to have interaction with a case manager in Prince George and I happen to be off for a day there is a dedicated team assistant to the team manager and there is a partner to the case manager who understands that it is their responsibility to manage that particular piece of business for the person who is absent.

 

Q: But that’s different than one contact to the worker – you said three contacts?

A: The idea is that the service to the worker would be managed by this team and the case manager would be accountable for information, for decision making, for everything that we would hold the individual accountable for – consistency of decision making, quality of decision making – so I think the system brings accountability – it also brings a higher likelihood that you will be dealing with one person through the life of a claim.

 

Q: I’m not sure how&ldots;.

A: Mr. Steeves before employer based allocation of claims and before we went to the case management model our claims were dealt out like a deck of cards and so first in first out and it would just be scattered through a Service Delivery Location – you’d have an adjudicator dealing with every employer in a particular geographic location and every worker within a geographic location of many many square miles in the Lower Mainland. So there was no focus on understanding a particular employer’s business; a particular worker’s employment – so while I think Mr. Eisen had the best of intentions in creating a very judicial model for adjudication. It lacked the credibility of having the adjudicator whose making decisions about the lives of injured workers and their ability to support their families – it lacked the credibility of having them go out to the workplace to actually experience how an injured worker could be injured. So it is very easy to sit in an office – never having to look your client in the face – never having to walk through a workplace and make a very bureaucratic decision and that’s what the system I think was being criticized for. Now you may not agree but that’s why we’ve moved to this model.

 

Q: No – I think I partially agree for whatever my opinion’s worth but the – I think your historical comment of the previous model is fair comment –my question here today is whether – with greatest respect – this is attractive to workers cause it is a change – and the question is - is this a change for the better or just a change? And that is what I’m trying to explore.

A: Yes, and that is why we’ve surveyed workers to have them tell us how they’re experiencing this new service delivery model. We are quite pleased that there has been a huge improvement in client satisfaction to this model.

 

Q: Yes, I want to come to perceptions as opposed to results in a minute but the – in the case management model we have a case manager whose - I suggest has a very similar role as the adjudicator that is that person is the centre of the management of the claim A: That is true in the case management model that is not true in the past model because the past model was a hand off based system – so the adjudicator would do his or her piece of work and the file would be transferred to a vocational rehabilitation consultant. He or she would do his or her piece of work and then the file would be moved to disability awards and quite frankly if you were a worker in that system what we heard was there were major frustrations because not only was it a hand off based system there were significant delays at every step when your file got referred.

 

Q: Those are E FILE questions aren’t they –if we give the E FILE to the people under the previous model that solves that problem?

A: No, it doesn’t because the individual pieces of work would still be done by individuals. The technology doesn’t change the way you do business. Technology enables you to change your business processes. In a paper environment we could still effect I think a case management model – it would be very awkward and we wouldn’t be able to provide the same high level of response. But we could take a paper file as we do now in our Richmond Complex and we could sit these people around the decision table as we are trying to do while we are in transition and we could have the same input and that’s what I think is very useful from a worker and worker service perspective is that the adjudicator gets the immediate perspective of the vocational rehabilitation consultant and you immediately get the perspective of the medical advisor who says folks there’s going to be a functional impairment here let’s get started on vocational rehabilitation thinking – in the old model your permanent functional impairment happened three years post injury. The vocational rehabilitation would get the referral three years post injury and I’m sure you’ve seen files that show the outcomes of having people dealt with three years post injury. It is a very difficult client to deal with. If you can get these people at the table you can deliver services concurrently as opposed to consecutively so you can shrink a return to work for a very complex injury from three to five years to perhaps six months to a year. And now you have a client who is focused, who is motivated and who understands what he or she should get from the system. That’s the power of the case management model in my estimation.

 

Q: Are you saying that the sole reason for the backlog in disability awards was is because of the faults of the previous model?

A: No, I don’t say it is solely; I think in part it is, yes. I think – I mean what kind of a system would you design today where you would pass a piece of work that was this thick to a brand new person who would spend up to a week reviewing that entire file from start to finish to try to get a perspective of how that file had been managed for three to five years and then start making decisions on the file. Quite frankly it is absurd.

 

Q: Of course it is – but the question is whether it is going to change dramatically if I am a case manager and have that foot high file and then I bid into another job and somebody else has to take it over – if I am on holidays then somebody else has to take it over

A: But your team is intact so while the person may be on vacation or one person may bid out the team still has the entire understanding of how that claim evolved, the medical advisor is still a constant, the medical advisor has had discussion with the attending physician, the vocational rehabilitation consultant is at the table - understands why the plan was put together now having said that – there’s another I think a fundamental change in how we are going to do business and that is there is going to be a documented medical care plan and a documented clinical care plan and a documented return to work plan. Now that is absent today because the adjudicator quite frankly on complex claims may not think that their role is return to work - they may think that’s the role of the vocational rehabilitation consultant or they may think that’s the role of someone else in the system.

 

Q: Is it the plan to have a medical doctor with every case management team?

A: Yes, it is. And a psychologist.

 

Q: A doctor attached in that pod if you like?

A: Yes. One doctor per every Service Delivery Location and where we move to work centres and communities like Duncan and Penticton the capability for videoconferencing on the day that case management discussions take place so that the physician may not have to drive from Kelowna to Penticton on the day that the case management conferences are held. But through videoconferencing he or she will be able to participate, pull together the clinical care plan, deliver it to the team, and the team will then have their plan in place.

 

Q: In the Richmond Service Delivery Unit to which services employers in Richmond – is that correct?

A: Yes.

 

Q: How many case managers roughly would be required to serve that Service Delivery Location?

A: I believe we have 8 or 9 what we call in our current model – ongoing adjudicators which would become case managers and for those 8 or 9 adjudicators there is currently a medical advisor, a nurse advisor, and a psychologist assigned to that particular unit.

 

Q: And at any one time roughly how many files would be in the Richmond Service Delivery Location?

A: In our current model if we took an average of 80 files per adjudicator you are looking about 700 ongoing files.

 

Q: So if you walked in on any given day there would be 700 files in the Service Delivery Location?

A: Well, there wouldn’t now – there would be E FILE.

 

Q: Yes, yes so within the Service Delivery Location one doctor would be available on 700 files?

A: Yes, I think – what you are trying to demonstrate isn’t entirely accurate – the physician would be involved in the new referrals to the Richmond Unit of which there might be 20 per week and on those 20 per week the case managers would come forward with their plan in terms of how they intend to manage that particular file – they would seek advice in the meeting between these people or among these people of the medical input, the psychological input, the vocational rehabilitation input – many of these will not require the ongoing supervision of the medical advisor. Once the clinical care plan is put together between the attending physician and the medical advisor it is a case of implementation. So you don’t need the ongoing role of a medical advisor. And in fact that’s where we see the role of the nurse advisor. Is to give advice on the ongoing delivery of medical services to the worker.

 

Q: Yes, my point is – when the case management model is up and running there will be 700 – roughly 700 files at any one time in Richmond Service Delivery Location and there would be one doctor available for all those files?

A: And if necessary because of EFILE and if we – if we needed more medical resources we can through E FILE assign 100 files to another physician so it gives us the flexibility of being able to ensure that we have enough resources to manage this particular model. And in fact Dr. Graham in Prince George when he is here this afternoon will probably tell you that he has sent files down to his colleague in Victoria, Dr. Naismith, for a second opinion. I haven’t seen something like this before can you help me? So this model gives us a lot of resource flexibility.

 

Q: And how is this different from the previous model? Why couldn’t Prince George under the previous model send files down to Vancouver for a second opinion?

A: You could – you either had to photocopy the entire file which all sorts of problems associated with it or you could send it down by courier and a week later you’ll get it back. In the mean time if the worker phoned you say sorry I can’t handle your question because I don’t have your file here.

 

Q: But that is an E FILE issue not a case management issue.

A: In part it is an E FILE issue, yes. Yes, it is making the file available at all times.

 

Q: Let me move to some other areas perhaps with some overlap – just to get a few things out of the way – the - talked about medical staff and perhaps Dr. Blair will at least want to join in – first of all – I’ve shown you a document –it’s tab 14 – the form 6 – do you have in front of you still Dr. Blair? It is tab 14 in our documents Mr. Chairman – I put new documents in front of you this morning – Dr. Blair, or whoever else - this is a document from a client of ours – 2 documents from a client of ours –and the two documents are the form 8 or what is referred to in the business as the medical memo – the form 8 is filled out by the attending physician - is that correct?

A: That’s correct.

 

Q: And – in this case the doctor – the worker went to see the doctor and it was a locum by the name of Dr. Baren – and that name is down at the bottom as the signature of the physician?

A: Yes.

 

Q: And then the claim was made – I’m not sure – I assume it was made on the basis of the form 8 or the form 7- the claim was adjudicated within the Board and then memo 5 was produced within the Board and it resulted in a decision being made on the claim – and the decision – what the decision was doesn’t matter – but it is the same Dr. Baren – and first of all the worker didn’t see this until I got disclosure on his behalf and gave it to him and that’s the normal – so the worker received the decision denying the claim on the basis of a medical report written by Dr. Baren and he didn’t know that it was Dr. Baren that was behind the decision. That’s just the way the system operates – correct?

A: Well it shouldn’t operate that way.

 

Q: Well I want to come to the conflict in a minute –but just in terms of the worker doesn’t even usually see or know from the decision letter about who wrote the report – in fact

A: May not know.

 

Q: May not know – often they refer it to a medical advisor and they say this and that but they may not know

A: Right

 

Q: So I got disclosure and I presented these two documents to the worker and you’ll appreciate the worker was upset

A: Yes.

 

Q: And what I explained to the worker was that this was wrong - this is a conflict – and it shouldn’t have happened – do you agree or disagree with what I said to the worker?

A: I agree with that very strongly.

 

Q: Thank you.

A: I should also add that this issue came – not this issue but the issue of Board physicians practicing in the community came to my attention shortly after I assumed my position in the Compensation Services Division. And it came up in the context of one of our senior medical advisors who also practices in Tsawassen or in that area – when we looked at the issue we said because of the criticism that Board doctors sometimes receive about not being good community attending physicians we shouldn’t restrict the ability of Board physicians to go out into the real world and practice medicine. However, if any Board physician sees a worker in a private practice they must absent themselves from any involvement in the claim. And that was made very clear to all of our medical advisors by the senior medical advisors – now Dr. Blair wasn’t here at the time – he will follow up on this and ensure that that physician is again communicated because this is absolutely unacceptable from a conflict perspective.

 

Q: Yes and – we don’t need to spend a lot more time on it - it is difficult to imagine that the doctor who wrote the medical memo would not have looked at the form 8, isn’t it - I mean that is the first thing that they would look at?

A: It is hard to imagine, yes.

 

Q: Yes – this does - a number of these things starts to do damage to the system and the relationship between the Board and the workers?

A: These are the things that do damage – you’re right.

 

Q: Now - one of the things that’s happened in the last little while is – well first of all we have the new chapter 4 –and we have something called activity related soft tissue disorder’s which we used to call repetitive stress injuries and – I know what repetitive stress injury means – I keep forgetting – activity stress disorder

A: Activity related stress – soft tissue disorder or there’s a variety of takes on that but they are called CTD’s, repetitive stress injuries, activity related soft tissue disorders – a number of acronyms.

 

Q: Right and previously those were adjudicated within occupational diseases – ODS’s – correct?

A: Yes they were.

 

Q: And now they are adjudicated in the geographical units?

A: That’s correct.

 

Q: When did that change take place? Formally?

A: That change evolved in the latter part of 1995 – when I was receiving a significant number of complaints particularly from the labour community about the length of time it was taking for us to adjudicate activity related soft tissue disorder claims – in fact Mr. Georgetti wrote a letter to the Premier on this issue – in terms of the delays that were being experienced by workers – we decided for a number of reasons that it was not appropriate to continue adjudicating these claims centrally. One was how can you assess the risk factors set out in chapter 4 if you reside in Richmond and Vancouver and you can't go and look at a work site in Terrace to determine whether all of the risk factors that are set out are in fact occurring. They were sending out questionnaires and I found that to be extremely unsatisfactory – it did not have a high level of credibility with the worker or the employer and as a result we piloted moving activity related soft tissue disorder adjudication out to geographic areas – Courtenay and Kamloops – the staff were trained – we monitored the situation for I believe 6 months – and we then made a decision to roll out the training and the devolution of those claims to the rest of the geographic locations within the province. We monitored the results and in fact I believe somewhere here you’ve got the tracking that we do of the disallow rates – in particular with respect to activity related soft tissue disorder claims – where the disallow rate deviates from the average and the average is something that I am not particularly happy but where it deviates from the average we actually move in and do file reviews. And ensure that people are following the chapter.

 

Q: All right and I’ll come to that document in a minute - I want to discuss one thing you mentioned - the training that you did – in Courtenay and Campbell River were the two pilot places?

A: Courtney and Kamloops.

 

Q: Kamloops – and the training - can you describe what the training was in those two pilot places?

A: As far as I recall we put together an ergonomist from prevention, an adjudicator from Compensation Services, we invited a couple of people who were adjudicating in the occupational diseases unit, and I believe we had a policy person who devised the training with a particular emphasis on work site visits and then we rolled the training out.

 

Q: And how much time was spent training the adjudicators in Kamloops and Courtney?

A: I believe it was two days – now I could be – I could stand to be corrected on that but I believe it was a two day training session.

 

Q: All right – and then when you rolled out the whole system to the geographical units?

A: I believe it was the same training – it was done by the same people – I recall that – I’m sorry I’ll ask Maryanne who is here – it was four days I am sorry.

 

Q: Okay, now if we can turn to document –it should be tab 16 – I think you know what it looks like – is it there – it’s on your table –

A: I think Mr. Bates may have given it to me this morning.

 

Q: And you indicated that with the trends route you did a review – and this is part of the review correct?

A: Actually I believe what happened was that despite the fact that we were reviewing and speaking to the community fairly regularly about this issue the Panel requested a review of how the roll out had gone and in fact I recall committing to the Panel that we would do a review of the roll out to ensure that the training had been done appropriately, that we were doing follow up, reviews and we were holding people accountable for dealing with the Chapter effectively.

 

Q: Okay - can we turn to the second page – there’s two charts – there’s three pages here – the middle page is a chart – activity related soft tissue disorder performance – Y claims – year to date – March 1997 – and we don’t – just the first two there – Abbotsford and Burnaby –and we see the disallow rate in Abbotsford at 13.9% and in Burnaby 59.5% – pretty wide spread wouldn’t you agree?

A: Yes I would.

 

Q: Would that be acceptable or unacceptable in your view in – as a manager?

A: Depends on whether they made the right decision.

 

Q: Okay

A: We could have that kind of variability based on different industries for example in Abbotsford you have a lot of poultry processing so you should probably have a higher allow rate in that particular industry then you might somewhere else and yet here – well that really confirms that doesn’t it? There is a very high disallow rate; there’s a very low disallow rate so I don’t think you can look at disallow rates by geographic region and assume that people are doing something wrong. Having said that I should tell you that I am not satisfied with activity related soft tissue disorder adjudication across the board.

 

Q: Okay – I am satisfied with that – and doesn’t that go to the kind of training that was given?

A: I don’t believe it does no.

 

Q: All right.

A: The people in occupational diseases were decentralized into the units as a result of this initiative. So on many cases you would have the same people doing the activity related soft tissue disorder adjudication that were doing the activity related soft tissue disorder adjudication in the occupational group. So were you – are you asserting that the adjudication practices in occupational diseases were more appropriate that what’s occurring today?

 

Q: No - what I am saying is that we have spent a number of years training the adjudicators in occupational diseases on how to adjudicate activity related soft tissue disorder claims and now they transfer out to the geographic units and we see that training that we did in terms of running the claims through and winning the appeals – we see that as lost when we look at these figures – that’s what I’m saying.

A: I’m sorry when was the chapter signed off by Mr. MacMillan and Mr. Weir? When was the chapter 4 signed off? When you say we spent a number of years – this is a relatively new chapter and a relatively new way of adjudicating activity related soft tissue disorder claims – the whole risk factor issue was collaboratively put together by the two stakeholder communities through the occupational diseases committee. And they couldn’t have had a couple of years of experience because this chapter is relatively new.

 

Q: Are you saying that there is no ASTD claims and appeals prior to the new chapter 4?

A: Of course there were.

 

Q: That is what I am talking about.

A: The adjudication process was quite different before chapter 4 came along. Chapter 4 was intended to bring us current with mainstream, evidence based approaches to activity related soft tissue disorder adjudication.

 

Q: Well, I didn’t expect to get into it – but we were making that arguments that were in Chapter 4 long before they were in Chapter 4 with some success – that is what I am talking about.

A: Yes, you certainly made those points but I am not sure we were adjudicating in accordance with your views.

 

Q: Well, I – we’ll get into that some other time – now there is a – somehow we got into medical staff into this but two other issues in medical staff – one is - I understand there is currently a – shall we say a dispute between the Board and the orthopedic specialists in the province?

A: That’s correct.

 

Q: And that dispute is about what?

A: That dispute is about the negotiation of the British Columbia Medical Association agreement that was concluded this last quarter and ratified by the Board at its recent meeting. And in the discussions relative to pay-for-service arrangements for orthopedic surgeons – they put on the table an issue about their relative value process – so they had agreed within their section that their relative value fee guide would be amended and the value of an orthrocopy would go down from $300 to $200 -

 

Q: Was it a dispute about money?

A: They worked very hard in their negotiations with us to try and convince us that we should ignore the Medical Services Plan fee schedule and pay them the old $300 rate and we said no. and as a result of that they are now trying to engage in what most trade unions would call job action but they call something else to try to get us to pay $300 and I am saying no. I will not do that – we have one fee schedule in this province and it should apply to workers and workers' compensation as well as every other citizen.

 

Q: And by job action –you mean orthopods are refusing to cooperate with the Board?

A: It would be unfair to say that they are all refusing to cooperate – and there are degrees of refusal to cooperate so some of them are refusing to do surgery on clients, some of them are refusing to do consultations and others are providing us with a full array of services.

 

Q: I’ve heard this before – doctors are refusing to do surgery because they are on a Workers' Compensation Board claim?

A: Because – yes – because they view the $200 for the orthrocopy to be a not worthy of performing the surgery.

 

Q: Yes - the – we talked about nurse practitioners and the Board is in the process of – have nurse practitioners do some of the work at the Board?

A: That’s correct.

 

Q: And as part of that the Board is offering retirement packages to some medical advisors? Or offering retirement packages to medical advisors?

A: Yes, amongst other packages.

 

Q: And what is the thought of the – say ratio of nurse practitioners to doctors within a Service Delivery Location?

A: That would depend on the size of a Service Delivery Location. However, our intention is to ensure that we have one medical advisor per Service Delivery Location assisted by a nurse practitioner or perhaps two nurse practitioners, however the role of the physician and the role of the nurse are quite different.

 

Q: Yes and nurse practitioners would be giving opinions on files on issue such as causation?

A: They should not be venturing into that area – their primary role is to provide advice to the adjudicator on the ongoing medical – the delivery of vocational and medical services – to liaise with the physicians and other health care providers in terms of the provision of services – on the causation there is a practice directive and Dr. Blair has met with these people to explain their roles so I will refer that issue to him.

 

Q: Just generally – the distinctions between nurse practitioners and the medical advisors.

A: Generally, the responsibility of the nurse practitioner will be to provide clinical advice and assistance to the adjudication process – to the adjudicators should I say – and to assist with things ranging from facilitation of access to diagnostic services to things as simple as interpretation of the medical information that is before them. Some of the adjudicators have quite extensive medical training they, themselves, and others don’t necessarily. Where there are issues related to complex medical problems they will be referred off to the medical advisor – according to the judgement of the – both the claims adjudicator and the nurse advisor – this process of referring on is no different than occurs in many other health care settings where the professional individuals judge their knowledge and capability.

 

Q: Okay – a question on the E FILE project Mr. Buchhorn – and we are starting to see disclosure from the – based on E FILE –and I gather we heard yesterday that it is very quick – like a couple of buttons and it is – the turn around time is 48 hours or something like that - a distinct advantage to every body.

A: Yes.

 

Q: And as you say a distinct advantage to having – not having courier trucks running up and down the province with boxes of files and the delay and complications from that –

A: And the odd loss – yes.

 

Q: And I am sure that happens – I know that happens – the – however have you given any thought to what difference what EFILE would make to – not necessarily the quality of the work but the character of the work of adjudicators for example when we see the EFILE disclosures it’s not particularly scientific but the impression is that there is less information on the file – that is it’s – for example fewer telephone memos – I’m not saying people are hiding things – I’m talking about when you move to a new technology it changes the character of the work and the information you receive and it’s recorded is different and I’m just – this is often a discussion topic that the in general you would get less information from the file than you would under the old system.

A: Hopefully not less information but perhaps less material. For example if I were to dictate a letter versus do my own data entry – I might tend to be more succinct if I were having to type it.

 

Q: Yes.

A: As opposed to I might be more verbose if I were dictating and one of the issues that we have dealt with as a division is how can we in plain language be short, succinct and get the message across in plain language to our clients? And I think there is a tendency in most quasi-judicial organizations that the more we write the better it is. And I am not sure that is necessarily true so I think you might see thinner files in disclosure but hopefully you wouldn’t be seeing less relevant information.

 

Q: You can go to either extreme can’t you – you can write too much; you can write too little?

A: Yes. But I think our problem with the old paper files was that much of the material wasn’t relevant and that caused issues around disclosure as well.

 

Q: Yes and are your staff being trained on just the topic we are talking about?

A: As far as I know all of our staff were trained through the frame of Information and Privacy Office relative to these kinds of requirements and we are certainly cognizant of the issue that you’ve raised because in my travels through the various groups that I tend to speak to over the course of a year the labour community has raised the issue of – you know of ensuring that the technological intervention that we have all relevant material on file.

 

Q: Okay and you mentioned training a couple of times –I’d like to just finish it off – the - there used to be the TEC –the&ldots;

A: TEC, yes.

 

Q: The training education centre?

A: Yes.

 

Q: And that was closed down in 1993?

A: No, it was closed – I closed it and so it to have been in 1995. And the reason I closed it was that we were in a service crisis at the time and we had significant service challenges and I put every available trained adjudicator on the floor and distributed case loads accordingly and said there will be no adjudication talent in any staff position within the organization until we can improve our service. In addition to that if we had to do technical training we pulled together competent people from the floor and we would deliver the training and people would go back to adjudication desks until we got our service level to an acceptable level. So the intention was that as we moved to our new model we will create a training group that will deliver technical training but will also deliver much more than that – will integrate customer service training and a whole variety of training delivery through the technical training.

 

Q: Okay and it is a concern to workers because it affects the quality of the information to get their decisions and I am just looking at the Hunt Report from 1996 – and it says the closing of the training and education centre was the most obvious manifestation of a failure in a commitment to adequately develop staff talent and creativity - would you accept that comment?

A: As a short term measure – yes – there was no intention to abandon training particularly in a knowledge worker environment where I think training and development is a very important part of our business. But I was faced with the situation where workers and their families are going without wages – income continuity, benefits and would I want to have 8 trained adjudicators in the training and education centre or would I want them on the floor making sure that workers and their families are able to enjoy the benefits. So I made the decision to close it at that time with the commitment that we would move back to a significant investment in training when we clarified our new business model and that’s the point we are at today.

 

Q: Yes, and there is pressure on you from employers not to hire any more staff ?

A: Yes.

 

Q: And so currently if I am working in for example the Richmond Service Delivery Location and I get a posting or I get transferred into Occupational Diseases – what – and that happens today – what kind of formal training would I have about chapter 4 and the other things I need to know about occupational diseases?

A: If, in fact that were happening, you would be trained by a group of people that we would pull together who had knowledge of that particular area or we would provide a significant level of mentoring by competent people. So in the occupational diseases area I believe we have a half dozen adjudicators – most of them are our most senior adjudicators and they work there for a reason – that’s an area that they have a significant interest in – they tend to update themselves on current literature – they tend to be true knowledge workers in that sense and they interact very closely with the two occupational health physicians that are in that unit so that is a highly professional unit that does a lot of its own mentoring and looks after the development of its staff so we don’t have the situation in where we hire 6 people into the occupational diseases area and we have to put on a full training course that kind of thing – that would be a specialized area where your knowledge level would increase over a protracted period of time – if you were in fact a newcomer to that area.

 

Q: So I wouldn’t be – I wouldn’t sit down for a day and have - learn about chapter 4 and schedule B and epidemiology and things like that – I would need to pick that up from my colleagues and my mentor?

A: You – well clearly you couldn’t sit down for a day and understand all the issues in occupational diseases – you would – if you were a single individual who was assigned to that unit you would receive significant mentoring from the manager, from your colleagues – we have encouraged areas like that to sit down around a table because of the number of claims that are moving through an area like that – we should collaborate on those kinds of claims using peer knowledge and understanding.

 

Q: My point is this – there is no formal training and I – there’s no curriculum?

A: For the occupational diseases area? I can find that out for you – I would be surprised if there weren’t an action plan and a curriculum for training in that area.

 

Q: Well, yes, if you could do that and just to finish it off – there is a learning centre that the Board has and they had an exhibit of it the other day and I went over to have a look at it and– they asked me what I was interested in thinking that I was with the Board and I – I asked them – they had all their manuals out there and I said have you got anything on the Act and she said no and I said have you got anything on policy and she said no and she gave me a pamphlet and it should be at tab 15 – it’s a – and I’ll just leave that for the record.

A: Well I’d like to comment on that because you’ve made that appear as though the learning centre is our technical training area &ldots;

 

Q: It’s not&ldots;

A: The learning centre is an area where knowledge workers in a knowledge worker environment should be able to go and practice some skills with respect to the new technology that we are introducing and there’s a menu of the soft skills areas that we can deliver through personal computer based interactive training so to represent that as our technical training arena I think would be inappropriate.

 

Q: I’m making the exact same point as you – it is voluntary.

A: Good, great.

 

Q: Yes – just one final thing on staff – do - if I was working as an adjudicator wherever and I make decisions – is there any formal process for me to get back from the Review Board and the Appeal Division decisions on my claims?

A: There is a formal process for you to get the claims that has been overturned – a decision was made because of the significant volume issues that adjudicators are dealing with 2-3 years ago that we would only give the adjudicators the decisions that required action and wherever necessary we would give the same adjudicator the claim that had been dealt with by the Review Board to implement both from a learning and development perspective but from a consistency perspective. So as we move &ldots;.

 

Q: Are you saying that it would come back to me in the normal course for implementation?

A: We have a gentleman by the name of Mr. Win Stanley who reviews all Review Board decisions and he determines whether any decisions are required on the returns; they are then sent to the manager of the Service Delivery Location – the manager reviews the decision – makes a decision as to whether there is a training issue – any kind of an issue that needs to be followed up with staff – significant issues are triaged to the policy group in our division for action and for discussion in case conferencing but where it is a single decision that requires action it is referred to the manager who refers it to the adjudicator and if discussion is warranted then the manager and the adjudicator will discuss the claim and the decision from the Review Board. That is the process that is set out. Now when you have 200 people – is that process followed every time? I’m sure it isn’t but that is the formal process that is required.

 

Q: Now is that process to determine – is it to determine serious errors that were made or is it a training process?

A: Both.

 

Q: So if a review board decision and a –what about appeal division decisions?

A: Same.

 

Q: Okay – just a few other areas Mr. Buchhorn - I was –at the break someone pointed out to me something on the orthopedic specialists and I was wondering if there might be some clarification necessary there – as I understand it the dispute is that – the board is hiring orthopedic specialists and paying them a good rate for examining the workers at the Board and the dispute with the British Columbia Medical Association is that the orthopedic specialists in private practice so to speak – that is the ones who are not seeing patients at the Board are getting paid less is that your understanding?

A: No, that’s not my understanding – that has become a convenient issue to mask the real dispute – we hire orthopedic specialists on a sessional basis at the Board for 3 ½ to 4 hours session. The people who are seeing consultations will see 5 workers during that period &ldots;.

 

Q: Those are visiting specialists?

A: These are visiting specialists.. if

 

Q: Yes.

A: If the visiting specialists were to do these consultations in their office they would receive $200 each which is the agreed upon fee schedule – Drs. Davidson and these people that we have retained in fact will see five and will get $800 which is less than what they would receive if they were – they were in their own practice.

 

Q: $800 for 4 hours?

A: Yes.

 

Q: That is practically the same.

A: Well if you see five, so, I think that whole issue is masked in British Columbia Medical Association politics. And I think we should be careful about what the real issue is.

 

Q: Yes, I am sure Dr. Blair knows all about it.

A: And Dr. Blair having been a past president of the British Columbia Medical Association is advising me on this issue.

 

Q: I’ll stop there – Mr. Buchhorn in another matter - you - one of your graphs shows the current success rate on appeals -it was 35% - is that 1996/97 figures?

A: Right.

 

Q: And historically it’s been from 30-40% and recently it was as high as 50%? I think that was 1990&ldots;

A: Well when I was the deputy minister of the Ministry of Labour in the early 1990’s I recall that the allow rate was about 44%. And I think the graph showed that.

 

Q: Yes, historically it has been 40% and back to the mid-1980’s it’s been 40%.

A: 40% yes.

 

Q: Now, do you have any sense of what –if I may – you are responsible for decisions being appealed in a broad management sense

A: Yes.

 

Q: Do you have any sense of what percentage would be acceptable in terms of a – I’ll use the word - an effective organization – that is what - presumably it wouldn’t be zero – but I’m suggesting that 35-40% is too high –first of all would you agree with that? That 35-40% is too high?

A: I think if you were looking at this from a quality perspective that – as the quality movement would they would look at how many pieces of work came into the organization and what’s the error rate so we have 200,000 pieces of work coming into the organization that’s new – we then have a significant number of reopenings which would pile on top of that – of that 200,000 and if you had a error rate of 1% in a total quality environment I think that would be perceived to be fairly good and I suggest to you that if we’re managing 250,000 pieces of work a year which all require decisions and this is not just entitlement these are wage rate issues so the same claim could have five appealable decisions which the Review Board counts as one finding each so we have a – we have a problem in terms of organizations measuring differently. But if 2-3,000 – 2,000 of those are overturned that would be less than a 1-% error rate. Now unfortunately each of those individuals within that 1-% are aggrieved so it is a serious issue. And we take it very seriously which is why we track it the way we do – we review all returns the way we do and we really want to see if we’ve dealt with the claim appropriately relative to policy so we take that issue seriously.

 

Q: Well, however you measure it the workers who look at the success rate of the Review Board – never mind the Appeal Division and the Review Panel and they see that there is a one in three chance of being successful – even without – when a client comes to me that is what I tell them – without even looking at your file –and that’s – and we happen to think that our success rate is higher than that – but I am suggesting to you that that’s – that’s a – that’s a problem in the original decision making process – if the problem is in the Appeal system and I am not saying it should be zero – but when the allow rate is that high for that long a period that there is something wrong with the original decision making process.

A: The original decision making process could be improved in an organization as large as ours – I think when you appeal a decision you might have the benefit of more information because you may have – you may have on behalf of the worker gone out and solicited more information which the adjudicator may not have had an opportunity to weigh.

 

Q: Quite so I make the phone calls that the adjudicator didn’t make that would have allowed the claim.

A: Or you might take your client to another medical practitioner who might give another medical opinion in which then throws that issue up for the weight of evidence which then improves your potential for discretion within the system.

 

Q: Yes I saw the medical memo to the specialist for the worker to get an opinion from the specialist that the Review Board accepts over the medical advisor.

A: And at that particular time you might be 8 months or a year into a situation at which point there may be more medical clarity to the problem then there was on day two or one or there may be more information available about causation.

 

Q: So are you saying that that the system can always be improved but you are basically content with that allow rate at the Review Boards?

A: No, I didn’t say that at all.

 

Q: Well I’m not sure what you are saying.

A: I – you asked me in the context of most organizations how were we doing from a quality standpoint. And I answered that we were probably within the tolerance of about a 1% error rate and I prefaced that by saying I’m not happy with the quality of decision making – there is a lot of room for discretion in our organization whereas in most organizations there is very clear cut ways to do your job and do your work and so the more clear cut your business process is the lower your error rate should be.

 

Q: And what – if you are not happy with the 35-40% what number would you be happy with?

A: I’m not sure that I would look at it that way – I’d be looking at are our decisions consistent across the organization? When we do reviews do the exhibit a high quality – not only in terms of the decision but in the way the decision was communicated which I think is another piece of the puzzle – I’m not sure there is a number that I would pleased with but I can assure you that we can improve our decision making.

 

Q: Well do you care what the Review Board says about your decisions?

A: Absolutely that’s why I put in place a process whereby the manager receives every decision that has been overturned and discusses it with the adjudicator and they decide was there a policy issue here; was it the way we weighed the evidence – so they look at a number of issues and if there is a policy issue it gets referred to Mr. Pinto. Mr. Pinto sits in on case conferencing sessions that review issues that the Review Board or Appeal Division points out to us so as best we can within this traditional model we have tried to put some quality assurance process in place.

 

Q: All right – on just one point - the training –last night while I was watching the hockey game I was reading over the slides you presented in May of last year – and I had a question – I asked a few people from the Board and they were sort of perplexed by it – actually I’ll – Mr. Buchhorn this is Mr. Anderson’s presentation – I’d be pleased if you wanted to defer it to him – but the – but the point is under 1997 training you got 2.8 for regular training; 3.3 for strategic project and 6.1 and you say there that it’s 40%– 46% of payroll

A; I assume that is 4. – you know I am really at a disadvantage here because I didn’t prepare this material – this is Mr. Anderson’s material.

 

Q: Well perhaps Mr. Anderson can – if he stopped me in the hall during the week in March that would be fine –

A: I’d be happy to have him discuss this with you.

 

Q: Okay, on the case management model on your slides –you have the I think this is your slides - this is the third page in – you have May – December 1997 results that was the second or third busy one you talked about – and you have 2456 coming in –and you have three streams – the 1200 resolved – do you remember that one?

A: Yes.

 

Q: And then 186 in another stream - do we know or can we say how that is different from the previous model?

A: Yes, I covered some of the highlights in my comments about the slide. I just want to confirm that we are talking about May to December 1997 – Results?

 

Q: Yes.

A: The highlights for that slide I think are that the front end grouping – the client service representative and the entitlement office handle 85% of time loss claims – so what – we are hovering around a 15-17% referral under case management as opposed to as I mentioned much higher in the current model. And in fact much lower than our expectations when we initiated this strategy. The other thing that we are finding – it doesn’t reflect in this chart that 79% of the target claims reach case management within 4 weeks. So what is also working in this model is the early referral both from entitlement at the five week mark or much sooner as I mentioned in the triage rules from client service representatives. Referrals to both rehabilitation are occurring on average at 130 days versus much longer timeframe in the current model. And much stronger return to work outcomes in out of 250 final claims 136 were back to work and 9 seeking work. And I guess as Ron mentioned in his presentation we don’t have a good return to work indicator as such. We are building that into EFILE but our best indicator of return to work is as you well know is our duration statistics. The average duration of the case management claims on that side of the office in Prince George was 55 days versus the overall average for the office of 77 days. So a 22 day reduction in duration as a result of we think to a great degree our case management initiative which translates into an improved return to work outcome so I think in summary form those are the key highlights of how it is going.

 

Q: All right and one final point – in terms of getting – you talked about this in terms of expediting files – as I understand there is a new process in the Board that –some identifies a file as one – is it a purple file? – is one that can be – one that can be got out in 17 days?

A: I didn’t hear your reference; was it a purple file?

 

Q: Well I’m not sure of the colour of the code but it’s tagged in some way and it is a file that they can get out in 17 days?

A: I’m not – I’m not ringing any bells with your reference to a purple file or anything else – I think yesterday in Mr. Massing’s presentation he referred to Assured Service Guarantee and that may be the reference that you are referring to. Assured Service Guarantee being our Assured Service Guarantee which ties into our commitment in trying to achieve an entitlement decision within 17 days. So if we are not able to what we have undertaken through the auspices primarily of the client service representatives and the call centres to advise claimants that we are unable to make an entitlement decision within a timely fashion and these are the reasons why. I’m not&ldots;.

 

Q: All right - is there someone called an expediter now on the floor?

A: Yes, the – that’s in the entitlement office – and that is occurring in our Richmond Entitlement Group where we have established a service expediter position and there again and this comes back to piloting in a smaller form to ensure that it would benefit us in terms of expediting entitlement decisions and we’ve got I believe 5 or 6 service expediters serving approximately 30 entitlement offices and their job is really to – punch up, and go after, and expedite getting information for the decision makers in a more timely fashion so that the claim files are more decision ready for them and the relevant material is available for them for their review.

 

Q: And are they in part driven by the 17 day timeline – their urge to move files along and get them out in 17 days.

A: I think that’s fair to say – I think that everyone in our organization - whether they be operating in the call centre environment, in the entitlement office, in the case management – I mean there is still some entitlement activity taking place. Everyone is very clear about our approach to trying as best we can to provide entitlement decision in 17 days.

 

JIM SAYER:

Q: It is a very, very knowledgeable panel that the Workers' Compensation Board has provided us with today and I’m appreciate that –we are going to try to take advantage of that – the focus on some of the key issues that have aroused the anger and frustration of the injured workers and which has been expressed to the Royal Commission over their months of hearings –I think it is fair to say that the presentation of injured workers can be summed up in that the Board was – simplistically that the Board was unfair to me – and primarily that unfairness has not been – though it may be a part of it – has not been that you don’t get my cheque out in 17 days it took you 25 days or 35 days or 45 days –primarily that unfairness is that injured workers have been expressing to all of us as advocates and to the Royal Commission is that – in that you cut me off the wage loss benefits when my doctor said I wasn’t ready to go back to work; you reduced my wage rate to the point that I couldn’t pay my bills claiming that was all my earning capacity was when if I hadn’t been hurt I would be earning much more than that at work – you assessed a pension which doesn’t reflect what I’m going to lose for the rest of my life based on my injury and I haven’t heard anything in this otherwise very impressive presentation that the case management model that is going to change any of that? So I wonder if you would like to address quality in that sense as opposed to quality in terms of these quantifiable things like how quick do we get the cheques out and how quick do we return phone calls and so on.

A: I would agree with you that the issue of getting the first cheque out is only one of the issues that we struggle with in terms of providing a comprehensive service however I would not minimize that Mr. Sayre because what I tell my employees every time I have an opportunity to speak to them is that some of us that make a heck of a lot more money than an injured worker would have trouble getting through a couple of weeks without a pay cheque. And I always put it in the context of if I were to stand here in front of our staff and say we’ve got a payroll problem – we can’t get your pay cheque out this next week and it will be a couple of weeks before we can get your deposit in the bank – how many of you would be able to honestly survive that situation without being in some distress so the first issue for us is to ensure that a worker and his or her family gets a pay cheque when they are entitled to workers' compensation. Beyond that I think the case management initiative deals with some of the issues that you raise – one of the significant tensions in the system that I experienced not only in this position but in my prior involvement with workers' compensation is that tension between the attending physician and the Board. And the entire focus of the case management initiative with respect to medical services is to ensure that we put the attending physician back in the driver’s seat with respect to an appropriate clinical care plan and representing the worker’s interest from a medical perspective. Now I’d really like to defer that to Don Graham this afternoon when he’s here because he can tell you what it was like to be a Board physician in the past and what it is like to be a physician in the case management pilot. Now having said that the next issue is the issue of what kind of treatment am I going to get – I think I’ve shown you that in the past very few workers were ever given the timely and effective treatment that mainstream, evidence-based literature that says they should get particularly in the areas of soft-tissue injury but more particularly in areas like hand injuries where it is extremely important right from the acute stage to get people into effective treatment – particularly in areas like amputations and some of the more significantly traumatic claims. Now we tend to deal better as an organization with trauma claims because there is no doubt in anybody’s mind that the worker is injured. Where I think we need to get a lot better is on the diseases and the insidious type of exposure where one can’t see that traumatic injury but clearly the worker has become disabled from exposure to work of some kind so we’ve got a lot of room for improvement but the issue is to put the attending physician in the driver’s seat, work through the attending physician, don’t second guess him or her. In the area of average earnings it is interesting that this is an issue that has eluded all of us for many, many years. I remember hiring Warren Standerwick about five years ago and saying to Warren your job is to fix the average earnings issue – well here we are 5 years later and it is as convoluted as ever.

 

Q: Are you blaming Warren for this?

A: No I’m not intending to blame Warren. But I am intending to I guess demonstrate some of the complexity in making change in a complex system. You will probably know that we have a proposal that we made to the Panel of Administrators with respect to moving the rate review back from 8 to 13 weeks – the reason we think that’s important is that the J-curve or the recovery curve for workers diminishes significantly between 8-13 weeks and with our focus on effective treatment it becomes difficult to keep a worker motivated in a treatment program when a decision comes at 8 weeks that we are going to halve your compensation and as I understand it the 8 week rate review was implemented because of austerity and there were no good policy reasons for changing from 13 weeks to 8 weeks. Most other Boards in Canada use a 13-week rate review. So there is a whole suite of things that we would like to accomplish but as you probably know Mr. Sayre I’m already in enough trouble for the changes I’ve implemented so we may have to slow down on some of this.

 

Q: I don’t think you’ll get any quarrel from workers on delaying the 8 week rate review – particularly given the statistics and I’ve – do you have the binder that has been prepared for the

A: We just received it this morning if that is the one you are talking about.

 

Q: Yes – I know you haven’t had a chance to look at anything in it – neither has the Royal Commission – if you look at tab "H" in that binder – it is the – tab "H" is the proposal that I think you’ve just mentioned that has been sent to the stakeholders for their comments to change the timing of the 8 week rate review – now none of us are going to argue with the fact that if – with the idea of changing the timing and delaying it- especially given the statistic on the second page that the rate review results in dropping the wage rate of 40% of the workers and only increases the wage rate in less than 10% - but it struck me that – that proposal and particularly those statistics were significant for reasons that go beyond the question of the timing – doesn’t that suggest to you that the way in which the Board measures wage rates is fundamentally unfair? It isn’t reasonable to think that 40% of the workforce is working at greater than their earning capacity at the time they are injured. So why should 40% of them end up with a lower rate after the rate review whenever it takes place?

A: I’m not sure it is for us at this table to decide the fairness of either the statute or the policy – I think that’s the job of the Royal Commission. All I can say is that it is very difficult for some classes of worker to establish what their entitlement should be in the system given that they have no history of regular earnings. So I – you know I think that’s a very complex social policy issue that the Royal Commission should deal with and as per some other issues that were dealt with in previous days – the division and its employees I think would welcome some clarity in terms of the setting of wage rates.

 

Q: I take it from the fact that you brought this up yourself that you would agree with the observation that apparently Compensation Services staff themselves have made to you that reducing a worker’s wage rate makes them mad – makes them less cooperative with the Board – it poisons the relationship between the worker and the Board –this is what they are saying in this memo.

A: My point of view is that unless there were a rational reason for the decision to have moved the rate review from 13 to 8 weeks that particularly with the emphasis on getting every worker that we can into early and effective treatment – the last thing we need in terms of effecting motivation to succeed in treatment is a reduction in earnings half way through a treatment program – it’s very expensive – and should have good restoration of function and return to work outcomes.

 

Q: But you’ll agree with me that the way in which the rate is conducted –the principles that are followed you are just going to make the worker mad 5 weeks later.

A: The principles of how we establish wage rate I think requires a broad stakeholder consultation and a social policy decision and I’m not sure that I should be making comment about that.

 

Q: Okay - my point however is that it appears to me that the Compensation Services staff have said to you the way in which we calculate workers’ long term wage rates is causing a great deal of unhappiness and anger on the part of them to the point that they are not able to cooperate with rehabilitation and return to work plans – and unless you change the way in that that’s done that anger is going to arise whenever you do it. Isn’t that a reasonable conclusion?

A: It may arise given the expectations that a worker may have entering the system not fully understanding that there are trade offs in the system relative to social policy.

 

Q: So you are saying that this anger that is being referred to by the staff here is misguided on the part of&ldots;.?

A: It is very real but the issue is what are the expectations of a worker who has a very varied earnings history over the last five or ten years and who hasn’t demonstrated the ability to earn regular earnings that one would apply to with respect to the policy and if the expectations are greater than the system can deliver yes there would be anger as a result of that.

 

Q: And it has been reported by your staff.

A: Well, there’s not only anger by the workers there is anger by the staff about how complicated the process is of calculating wages. And the number of times that discretion is exercised as – by the appellate groups relative to the establishment of wages because the policy isn’t that clear.

 

Q: All right - turning to another broad area that has come up before in previous days this week – there’s the whole issue of policy has arisen several times and I think it has left all of us feeling a little bit confused and it is as to just exactly what sort of creature this is – there have been discussions that the difference between policy and practice and in the background there is always the distinction between policy and the law – now as the head of Compensation Services can you tell us what training or what understanding you want your claims manager or case managers or your claims adjudicators to have regarding what policy is and just how far it is applies – how far your discretion goes to go do something that is not within policy?

A: I want every employee of the Workers' Compensation Board to abide by law and policy – very clearly that’s the objective that I think all of us should have relative to the system -–now when the Board of Governors made the Green Book here – the policy book – policy – I think what happens was that the history of guidelines and instructions to adjudication staff based on precedent became enshrined in policy such that we lost the ability to really issue the kind of instructions and directives to staff in a responsive way to Review Board and Appeal Division decisions. So every word in this policy manual – even if it is misspelled – has to go to the Governors under the current scheme to be changed. Now having said that let me tell you about an even greater problem. When I came to the Board under the Board of Governance structure there was a point of view that the Appeal Division decisions were decisions of the Board and they had to be followed by the Board. Now you heard Mr. Cott earlier this week say that that was not the point of view of the Panel of Administrators - that in fact the Appeal Division decisions particularly where they talked about policy unlawful or inappropriate should go out to broad public consultation and then the policy should be changed to incorporate the views of the public. That is very different than when I was operating under the Board of Governors – Mr. Dorsey and the General Counsel of the Board were pretty specific about the fact that if the Appeal Division made a decision that this policy was unlawful that we were to abide by the Appeal Division decision. Now you can imagine if I am operating under two points of view from the Panel of Administrators and the Board of Governors that the staff would have some difficulty with respect to that so you know there needs to be and I’d urge the Royal Commission to look at this and clarify this. I even went down and spoke with Don Munroe who put this framework together and said can you give me some guidance on what you intended relative to decisions of the Appeal Division and where the Appeal Division says that the visual acuity policy is unlawful – or that the policy of paying workers – not paying workers when they are incarcerated is unlawful – so there is some genuine confusion about what is law and what is policy.

 

Q: Well, don’t leave us hanging what did Don Munroe answer?

A: He said you have an interesting problem.

 

Q: Pay me my fee and I’ll tell you what I think about it.

A: I think Don’s view was that – was that the Appeal Commissioner was brought into the system in the way that that position was to ensure that those kinds of decisions could be worked within the system in terms of changing policy and that we wouldn’t have the prior situation of the administration judicially reviewing decisions of the Commission which would look quite ridiculous from an organizational perspective.

 

Q: Okay - I want to go back a bit on the comments you made that I wasn’t aware of – are you saying that the Panel made a decision changing the previous practice in saying to the Board effectively we don’t want you to follow what the Appeal Division interprets the law to be until we’ve changed the policy?

A: No, I think what you heard from the Panel of Administrators that where the Appeal Division alerts the administration or the system that there is a problem with law or policy that the Panel of Administrators wishes to go out and broadly consult the stakeholders and change the policy not necessarily the way the Appeal Division may have seen the change being required but in a way that met with public policy. So that is a departure from the way the Board of Governors viewed that issue.

 

Q: Okay, well let’s be a little more - let’s pick some nice concrete examples –so that it is a little easier for everyone to understand it - tab "K" of the binder that I’ve given you is a decision of the Appeal Division – it’s the second one actually – I was involved in an earlier case a couple of years before that in which the Appeal Division decided that the policy that says some benefits at least payable to a worker who is imprisoned cannot be lawfully be cancelled –now the policy says they must be cancelled unless there are dependents eligible to receive them – the Appeal Division said that they can’t be cancelled unless they are things that are tied to employment such as a loss of earnings pension – and they suggested that there would be a distinction between a loss of earnings pension and a functional pension – functional pensions are payable no matter what the worker is doing even if they are retired or on a permanent holiday somewhere – loss of earnings pensions are payable as a measurement of what they are losing because they can’t work or they can’t work as productively so it did seem that that was a reasonable distinction – but that issue really hasn’t been finally decided yet. But that was a decision back in the earlier decision of 1993 that between the Review Board and the Appeal Division in the case that I was involved in they decided first of all that pensions could not be cancelled when a worker was on day parole – the Review Board decided that and Appeal Division upheld it and secondly that the functional pension – the 23.1 pension could not be cancelled because as I said that’s not tied to actual work activity on the part of the worker – we have been told consistently since those decisions were made that they only apply to the workers who appealed them and other workers have been told that their pensions will continue to be cancelled because the policy hasn’t been changed. Now the Appeal Division decided that something was illegal and the Board continues to say that we are going to continue doing it – is that something that the Panel of Administrators decided – is that the situation that the Panel of Administrators decided should exist until they got around to making a firm change in the policy?

A: I think that’s what you heard Mr. McGinn and Mr. Cott say earlier in the week – that the Appeal Division decisions would apply to the individual case and that change in broad policy would be the subject of consultation by the Policy Bureau where the Panel of Administrators was given the full array of options from a public policy perspective and could change, modify, or whatever they chose to do – now what I’m telling you is that was not the view under the Dorsey regime with the Board of Governors. The point of view was that when a policy is declared unlawful by the Appeal Division that is a decision of the Board and the adjudication staff was bound to follow that. Now, that’s why in many cases that you bring to my attention the 6.1 issue etc. We had half the staff doing one thing and half doing the other and people saying now what do we do – is the Appeal Division decisions the law or is it the law of that one particular case.

 

Q: Now, I want to ask another question at this point – has the Board been trained about the implications of about just what policy is – it seems to me that in all this discussion there is no consideration of decisions of the highest courts that apply to this system – the Court of Appeal in BC which decided to test the case and the Supreme Court of Canada which tested the case called Maplewatch Farms and these decisions were 10 or more years old – provided them to the Panel of Administrators and to you in tabs "F" and "G", and essentially what the Court of Appeal said – that is perhaps the more applicable one because it was a BC Workers' Compensation Board case concerning wage rate and what they said about policy was that first they found that the policy that had been applied – the wage rate that had been assessed for Mr. Testo was absurd – it was patently unreasonable because in effect he had been injured for most of the year prior to his second injury and the Board said he had a very low wage rate because he hadn’t earned much in that year –that that was a ridiculous way to determine it but at page 14 of the decision they said that "it is no answer to say that the Board had a discretion to exercise –to blindly follow a policy laid down in advance is to disable the Tribunal from lawfully exercising its discretion". And they go on to quote some eminent legal authorities to support that proposition. Now what these cases stand for as the principle – sure administrative agencies can and usually should have some policies so that people know what they are going to do – they are given broad powers –it is in everybody’s interests that they understand how – what would generally be exercised but it is an error in law for them to say that these guidelines that we have issued have now become part of the law itself and we can’t change it. And what strikes me that everybody is missing in all of this discussion that goes on about this issue of how the Appeal Division decisions are implemented or not implemented is that adjudicators should be trained – I would think – that while the policy manual is a general guideline it can be departed from in a case where the facts call for it. And one of those facts seems to me to be where the senior appeal tribunal has decided that the policy violates the law. Do you have any comments on that?

A: Yes, I do. That’s why we have a very senior individual within our division who has extensive adjudication experience and it’s his role to take those kinds of decisions and impart them to the adjudication staff through a variety of means and make a determination as to – but I think it is limited to whether we exercise discretion on an individual case until the Panel of Administrators as the law makers for this particular policy manual decide that in general we should deviate in a general way so I’ll turn it over to Joe on that issue. A couple of points Mr. Sayre that I just wanted to respond to – clearly policy and I would hope that every adjudicator in our system would recognize that policy cannot and it is explicitly stated in the manual that they use – policy cannot supercede the law where there is conflict. But they must decide in accordance with the law and not in accordance with policy so once the law is clear the law prevails. But where there is conflict about policy and I think that’s the discussion that’s what the policy is – that’s where we get into the rub. If the Board has a policy that says it will do this or it won’t do this adjudicators have to – to repeat – have the discretion that they think in a particular case that warrants a departure from that discretion until they do it on their own or to bring it to somebody more senior and say I don’t think this quite fits the box – that the policy is wrong. But when the Appeal Division issues a decision – Ron has just gone over the whole debate about you know who then makes the Box. What is the basic rule that should be applied and the problem that I think the system is struggling with is that the law seems to give the role of policy making to the Panel of Administrators and not to the Appeal Division and I think you heard not only the Chair but the Acting Chief Appeals Commissioner recognize that it is not the role of the Appeal Division to set policies for the Board. It is a role of the Panel of Administrators. But it is, I acknowledge it’s a tricky dilemma when you have – when our staff is faced with requests from advocates saying your own Appeal Division has said this is an unlawful policy and I think what ought to happen is where that happens we need to have a fairly quick resolution through perhaps a better mechanism. Now I think you know that that that’s not to blame the panel of previous governors. Resolving some of those issues is not easy – I think in part that is why we are having this Royal Commission. So just to summarize – I agree with you that adjudicators have the discretion to vary from policy as it says it in the front of the book – it says it in various chapters and it says it later on in the book to vary from policy where A. They think it is warranted in a specific case and they’ve got instruction in this manual that if a policy conflicts with a law then they must abide by the law. Governance, policy making – we need – I think we need to have resolution to those issues – whether it is to hire Don Munroe again for his – whatever his rate is or to hear from the Royal Commission because where a decision like that comes down from the Appeal Division there needs to be a quick response.

 

Q: Let me put this way then in the Testa Case it was decided that the choice of a wage rate for a worker in circumstances where to follow the one year rule was absurd - was a patently unreasonable choice –and Court of Appeal did not say that the policy was illegal they just said it shouldn’t have been followed in that case – that the Board had a duty to decide according to the merits and justice of the case –which is also what section 99 of the Act says –general in terms of all decision making – decide the case on the merits.

A: And I think Section 33 which the Testa Case was referring to is particularly a discretionary section and I think our adjudicators recognize that that section is prefaced in policy with the understanding that you are only given a framework and you have to work from the framework instead of trying to find the right – that best represents the loss – so they settle on average earnings that best represents the loss. We learned a lot from Testa.

 

Q: Okay – well we’ll be talking about that when we talk about benefit levels

A: First thing Monday morning.

 

Q: There are some 20 some wage rate issues outstanding in which we will be suggesting to the Royal Commission that you didn’t learn enough from Testa –but to get back to this question –the Court of Appeal has said that adjudicators, case managers, claims managers – whatever they end up being called have to be willing to depart from the policy when the circumstances of a case calls for it -and I hear you still telling me that they can’t depart from the policy even when it’s been determined by the highest tribunal in the system that the policy is illegal now that doesn’t make sense to me?

 

[Mr. Bates interjects]: Judge Gill, my friend makes legal statements that can’t be argued for example he says that the Court of Appeal states that policies were applied without an application of discretion and then quickly tells the witness that the Court of Appeal says that the policy is illegal. In fairness I think if Mr. Sayre has specific questions to ask the lay witnesses then that is one thing but to make contradicting legal statements and then ask for comment I think in some regards it is unfair.

 

Q: I’m sorry that was a misstatement – if I said the Court of Appeal I meant the Appeal Division said in the ruling that the policy in regard to incarcerated prisoners was illegal.

[Judge Gill interjects]: Maybe if you slow down a bit because I certainly working within the context of the authority that the Board’s staff would have to depart from policy which is in of itself reasonable but not necessarily applicable to – your next question which Mr. Bates is addressing would seem to have implicit in it that the policies themselves are illegal. To be clear about which about which you are talking about and where it comes from in terms of the authority to make that proposition.

 

Q: To ask the question very broadly and it may be that you’ve helped us as much as you can with it but to what extent are your decision makers in the system told that they have the authority to actually take the merits and justice of the case into account even where it may mean doing something that is normally going beyond the bounds of policy? Are their hands tied behind their back to the point that they can’t do that until the Panel of Administrators changes the policy?

A: No, I get requests all the time; managers get requests all the time and senior adjudicators get requests all the time saying – you know – the policy says this – well currently in the Lower Mainland for example as we’ve revamped our treatment programs – we’re faced with a dilemma where some of the transportation requirements of our workers don’t fit quite within the policy rules. Now we’ve – our Policy Bureau and our Compensation Services staff are working on a policy proposal to address that – in the mean time we said – look if the rule doesn’t fit – with your manager’s approval you can depart from the policy and the reason I recommended the manager approval is that there would be some consistency within that region and in the Surrey Region the transportation that is being departed from in the policy can be done so that is just one quick example. My dilemma to go back to the issue that I think you were trying to get at is when I have a published policy in front of me of the Governors that I believe is the lawful policy making body and I have an Appeal Division decision that says that policy is unlawful I expect – I don’t think I have the authority to then say to staff – starting tomorrow morning stop following the published policy unless the Governors or in the present situation – the Panel of Administrators says that to me. Now, adjudicators can be guided by the principles of individual appeal cases and they’ll come to senior policy advisor types and say – you know what has the Appeal Division done in this kind of instance and we’re often using some of the thinking of train of thought but it is when you get down to that rub – I think there is a problem there. Which law am I supposed to break – for want of a better word – in providing guidance to staff.

 

Q: Is Mr. Hurst with us this morning? One instance in which the policy was changed without as I understand it – any official change by the governing body was in the case of pensions – loss of earnings pensions to people over the age of 65 in which the – again the Appeal Division decided that the current policy was unlawful and the administration of the Board developed an interim policy to tie the Board over until the governing body had created a permanent one and that interim one has - that was created several years ago and is still in effect – Mr. Hurst was the author of that so maybe he could tell us how that came about and why that can’t be done in connection with some of these other issues?

A: I’ll be happy to turn this over to Mr. Hurst. Because I’m not familiar with the process but before I do that I guess I want to emphasize something that Mr. Buchhorn – the point that he made – in the early days of the new governance model and in particular after some decisions of the Appeal Division there was a great debate about when the Chief Appeals Commissioner or the Appeal Division rendered some decisions – there was some great debate should the division wait and there was great argument that the decision should wait until the Governors actually changed the policy. There were some opposite views that said you can’t wait until the Governors change the policy – you have to move on the Appeal Division and I had not heard the enunciations that Ron – because Don I think had left at the time – but it seems to me that a lot of policies were in effect changed not by the governors but the division moved in line with the Appeal Division – I think as we move further into the nineties – into the mid nineties – it became obvious that we were moving in the direction that the Appeal Division had said without the sort of lawful changing of the policy by the people who were charged with the responsibility for changing the policy. And so we began to move away from some of those practice changes back in line with – with the – with the – with the – published policy and said Policy Bureau take this to the Panel of Administrators - clarify it for us and I agree with you – I mean this has been frustrating to workers and their representatives and employers and their representatives – you know what are the rules – why are you switching them – why are you switching them without authority from the governors – why aren’t you falling in line with the Appeal Division so again to emphasize this we would value comments so I think the example you referred where Mr. Hurst or others in this division have issued guidance to staff to try and move into line would be in the vintage of that confusion as to who owned the policy change. Now if you would an answer to the other Mr. Hurst can come up here.

 

Q: Yes, I’d like to know how the interim policy came about and as I said why can’t it be done for other instances.

A: There’ll be opportunity in pensions today to further expose some of those pension changes. I heard, just while Mr. Hurst is coming up, about how this might be resolved. And I remember Mr. Robertson speaking about a referral process – I think it’s unfair to expect an individual employer – perhaps a very small employer or an individual worker to take a policy to judicial review and incur all the expense and aggravation of that process in order to change a policy or have a policy declared unlawful or to refute that the policy – that that decision was incorrect so somehow there has to be a way to get these issues resolved quickly and ensure that we are practicing lawful policy and&ldots;.

 

Q: One of the fundamental principles that the system is designed with is that people shouldn’t have to go to court to find out what it means.

A: That’s right. [Mr. Hurst arrives]: Yes, good morning. Quite succinctly the issue was the Appeal Division found that it was – I can’t recollect whether the word was unlawful – they may have – but certainly not appropriate to find in each and every case that there would be no loss of earnings beyond the age of 65. They in essence thought it would be appropriate to have a rebuttable presumption so in other words you simply couldn’t presume that all disability pensioners entitled to a loss of earnings would cease working at age 65. Because of that issue there was considerable consultation with the then full time Chair of the Governors – Mr. Dorsey – and with the cooperation of the governors we put through an interim measure to address that issue until the matter could be resolved by the Policy Bureau so that was I think an extraordinary measure around the particular case with the cooperation of the governance structure in place at that time to address that on an interim basis. We didn’t address completely all the issues because it required a complex stakeholder consultation that you would expect from a policy review. What we did put in place was a measure to deal with those cases which we believed could be dealt with through a rebuttable presumption and we retained a list of those – the rebuttable presumption in that case was where there was clear and compelling evidence that there would be some loss beyond age 65. And then identify those who potentially would benefit from a broader policy when in fact that is addressed to the full – a review that you would expect with such a significant matter.

 

Q: Are you saying to us that the governors authorized that interim policy?

A: Yes, that is what I am saying to you.

 

Q: Was that done in effect by changing the policy so that the governors did change the policy by adopting the interim policy? Or did they say just go away and fix it – you know fix it for the time being and we’ll make it permanent later.

A: I think the conclusion was we needed some interim measures to deal with that; it was recognized that we ought not to address the resolution of the entire matter through some interim resolution that didn’t have the broad consultation that didn’t go with such a significant policy review. So that’s left to the Policy Bureau. So what we have is an in interim measure with the blessing, if you will, of the Board of Governors of the day.

 

Q: Okay, well I don’t want to belabour this too much longer but is it fair to say then that absent some direction like that from the governors – the Panel of Administrators now – the Board Administration doesn’t feel that it has the authority to generally authorize staff to depart from published policy – even if there has been a ruling that that policy is illegal? That is essentially what you are saying?

A: That was a discussion I heard on Monday and that appears to be the way we are dealing with those issues in this particular generation of governance.

 

Q: Yes, okay, I’d like to turn to a different aspect of policy now and it is going to bring back another issue that came up earlier this week –and that is the Code R issue –and I think that you Mr. Buchhorn is fairly familiar with the debate over the way in which continuity of income benefits are calculated –specifically whether they should be based on an employability assessment that has just been produced in the course of assessing a worker’s long-term pension entitlement

A: I am more than fairly familiar with that.

 

Q: More than fairly familiar – okay - one aspect of that debate was the question of whether – that of course the change in what was being done which resulted in the benefits that workers received were much lower than they had been before did not appear in the claims manual but has appeared in the rehabilitation practices manual or – is that what it is called?

A: Handbook.

 

 Q: Handbook – I’ve reproduced that change – I think it was in Mr. Steeves’ book of authorities as well and it appears at tab "I" of that book – the big bold "no’s" in there were my comments – I couldn’t find an unannotated comments so for the Royal Commission’s information that is my annoyed reaction when I first read it "no, no, no, no" - what I wanted to direct your attention to is the correspondence that followed that – You’ll see what happened that I didn’t – the photo copier that I was wrestling with this morning with some success but not entirely successful - didn’t get the first page of the first letter but in any event the May 22nd letter sets out the question and the argument that A. you are comparing apples and oranges –that a long-term employability assessment measures long-term earning capacity and section – the continuity of income benefits is intended to address the worker’s short term loss and that therefore the continuity benefits should be calculated the same way that part time, temporary benefits are calculated under Section 30 – and the response that I got from Mr. Parker in the letter of May 28th which is at the next page is that if you look at the second paragraph – "I agree with the rest of your letter that the job in which such a deduction is based must be available now and in fact the rehabilitation consultants have been instructed to follow the policy outlined in Section 30 – now as I understand it this letter was written in May, 1996 by the President seemingly agreeing with our position on that question but as I understand it even now after this issue has gone to the Hunt Report and the authors of that report have said that the administration - perhaps you Mr. Buchhorn crossed the line from practice to policy in the way that that issue was changed – even now the employability assessment is being used to reduce a worker’s income continuity benefits under Section 30 – is that right?

A: That’s correct.

 

Q: And if so why has Mr. Parker’s letter – Mr. Parker’s concession been abandoned?

A: Let me take you to a quick journey. This initiative was proposed by Dr. Harder who was the Director of Vocational Rehabilitation. At the time there was vocational rehabilitation consultation committee which was comprised of two representatives of labour, two representatives from the employer community and some people who were deemed to be in the public interest. And that group met with me when I was appointed to this position and said that they were interested in becoming part of the consultation process for their communities relative to vocational rehabilitation. I said to them at the time I’m happy to hear that – this process is important and I’m hoping that if anything comes up that would be controversial or that cause you to believe that you have not been gainfully consulted that before you walk away as stakeholders often do you would come to see me and have a chat with me. The Code R issue was proposed by the Division; was reviewed with the Vocational Rehabilitation Consultative Committee and we got no negative reaction. We got some discussion but no negative reaction and on that basis the handbook was revised.

 

Q: When you say proposed by the division – could you help us by clarifying&ldots;

A: It was proposed by Dr. Harder said that this is an area that I think we need to change – it is not well understood even when it went to the governors as recently as a month ago this issue was not well understood because in fact what happens is Code R is not the only vehicle for the payment of short term disability benefits to the vocational rehabilitation department. And what Dr. Harder was trying to do was in response to the Hunt and Lahey Administrative Inventory which was very comprehensive and set out many recommendations about how we could improve the system and become more accountable he was trying to capture the outcomes that we were getting from various vocational rehabilitation initiatives so that where it was practiced to carry almost everyone on Code R for short term disability type benefits we said we’d like to capture the number of people that we were paying Code R benefits to who are in formal training. And then we’d like to do Program Evaluation to determine how many workers we send to British Columbia Institute of Technology actually end up getting jobs and is this a viable option for workers relative to return to work initiatives and is it a viable way to spend money – to spend the system’s money with respect to return to work initiatives.

 

Q: Would that category of worker going to British Columbia Institute of Technology have been categorized as Code R at that time?

A: There would have been a very sloppy system that could have had workers on Code R or any other variety of codes.

 

Q: Even if they were attending a course as opposed to just waiting for their pension to be assessed?

A: Right, we’re not particularly specific about how we carried people with respect to short term disability so it was an effort to put more accountability and more program evaluation into the system relative to what interventions cause people to succeed and which ones cause people to fail.

 

Q: So how did deemed employability get introduced into that?

A: All right well let’s take this a step further; so the handbook revisions were made and the intent here was that if you as a worker were prepared to engage in legitimate vocational rehabilitation activities that we would capture the areas that you were being supported in, do the program evaluation, etc. to determine success. If you were a 57 year old worker who said I don’t want to be retrained, I’ve got Canada Pension Plan, I’ve got a pension coming from the Workers' Compensation Board, I may have some other – a company pension, I may make the decision that I don’t want to cooperate in a vocational rehabilitation retraining program – I want to retire. And in those situations we make a determination that we would deem that worker’s ability to earn money in the workforce and give the worker a pension that he was entitled to or she was entitled to as a result of that process. It was intended to be an initiative that took people who were not interested in being retrained and re-entering the workplace and giving them a quick deeming and loss of earnings pensions so they could go off and retire or do whatever they wished to do other than be retrained and reintegrated into the workplace.

 

Q: So the policy or practice or whatever it was only intended to apply to people that had taken themselves out of workforce?

A: That’s correct. And in fact when I went down to the BC Federation of Labour convention in 2 years ago and listened to you people and their views with respect to this policy – I said listen if you can bring me a specific case of a worker who feels disadvantaged by this change in policy I’d like you to bring them in and I will see if we have applied it appropriately and fix it. To this day, Mr. Sayre, I have had no referrals in terms of a worker who has been disadvantaged by this policy. None. And I’ve canvassed the entire labour community through public forums – I’ve been in every community in this province listening to workers and employers and their point of view on this issue and whenever Code R has come up I’ve said to them if you can bring me a case that actually has that kind of an aspect to it I’d like to have a look at it.

 

Q: Is your offer still open?

A: Yes it is.

 

Q: All right. We may well be able to arrange that.

A: Anyway, the outcome of all of this Mr. Sayre, is that when the issue became contentious it was I who suggested that Hunt and Lahey be retained to come in and do a complete review of vocational rehabilitation and the Panel of Administrators said let’s have somebody review the Code R issue I said no – I’d like somebody to review the vocational rehabilitation department in its entirety and who better than Hunt and Lahey who have been in the system. Prior to that I sent a request to Mr. Sanderwick in the Policy Bureau and I said would you give me a legal opinion on whether this is a practice change that I have the discretion to make or whether this is a policy change. Mr. Sanderwick replied this is a practice change and it is within your discretion to make this change. Now, I should say that had I to do it over again I would have consulted more broadly, however, I think it should be important to you that the Policy Bureau has now considered this – they are independent of the Administration – they report to the Panel of Administrators and their recommendation is to proceed with this change and make it a policy change. So there are two issues here – one is what was the process and was the process, perhaps flawed and secondly is what was the right thing to do. Well, it appears that the right thing was done – perhaps the process was incorrect.

 

Q: I’m not aware of the Policy Bureau’s recommendations – if that is the recommendation – they didn’t follow our recommendations but ?

A: Well, it did go out for broad public consultations so presumably they did take your views into consideration.

 

Q: I don’t want to go too far and I wanted to wrap this up. The next area I want to deal with is the medical decision making and I’m going to take your suggestion and wait until this afternoon and it is Dr. Graham that’s coming this afternoon?

A: Yes.

 

Q: But just so that I get it clear then you have just told us that this policy was intended or whatever – we would say it was a policy change – in any event it was intended to only apply to people who had voluntarily decided that they weren’t interested in another job and &ldots;

A: Or were willfully uncooperative and not engaging in a rehabilitation intervention.

 

Q: All right so what about all the other workers who are considered – their condition is considered to have plateaued so their wage loss benefits have been terminated – there is a pension process in place – it is going to take awhile – there are several stages involved you know and in the mean time they are not actively being retrained – maybe they don’t need retraining in the long term – maybe they are going to be able to go back and do something – maybe the retraining has not started yet but they are interested in retraining and they are interested in getting a job – are they going to be affected by deemed employability or do they get a different type of code benefit?

A: They get carried on a job search allowance on a whatever allowance is appropriate for what they are engaged in the process.

 

Q: So if they are doing the best they can to support themselves or to retrain themselves – in effect they will get wage loss benefits?

A: That’s my understanding now we have a full day dedicated to vocational rehabilitation and the Director of Vocational Rehabilitation, Julie Wakelin and her staff will be here and they can take you through some specific examples of how that is being applied but that is my understanding.

 

Q: I gather then that you would agree that’s the appropriate type of level of benefit that a person should get in that situation?

A: If an individual has a functional impairment, cannot return to his or her former workplace and has to be retrained or accommodated in terms of finding a new job we should provide that individual with support and benefits, however, we should hold where there should be some accountability in that process and it needs to be mutual objective setting with the individual so that it is not the Board’s target that they worker is shooting for; it is the worker’s objective that we are trying to facilitate and there needs to be accountability that when we expend in some cases a fair amount of money and that the worker is doing the very best that he or she can to put into effect their training or retraining initiative.

 

Q: There is one other area that I’d like to turn to –we have five minutes or so before the lunch break and it doesn’t concern medicine as such but I think it is a case management element probably - we understand that very recently – so recently that the Ombudsman – that the Board’s Ombudsman didn’t know about it until a week or so ago - the Board has decided to house claims adjudicators in some of the large workplaces – specifically Vancouver General Hospital and Richmond Hospital and Vancouver City Hall –now if that information is correct and if so why that decision was made and what consultations you did and why you did it?

A: That information is correct and Mr. McCall recently met with CUPE and the City of Vancouver where our first adjudicator is residing and I’ll turn it over to him to speak to the process and the reaction that the two clients have had with respect to that kind of service. The information as Ron said is correct – the impetus was that an office became available in the Human Resource Area of City Hall and an offer was made to us if we would like to avail ourselves of that office – we said hook up EFILE and we’d be down there and we would be up and running – so we did. We took advantage of that offer, unfortunately there was some glitch with respect to the information between ourselves and the city and CUPE so we subsequently met on that issue. The resolve to all parties satisfaction was that we remove ourselves from the office area in the City of Vancouver and rather than go into the worksite through that auspice if you will – we will be equipping the staff of our Vancouver City case management team with laptops and we have agreed with respect to the approach that we will be going out to the worksites equipped with laptops rather than using the platform of the City of Vancouver. Now &ldots;

 

Q: You will no longer have an office in the city hall with Workers' Compensation Board over the door?

A: That’s correct. We never had a sign; it was really a stopping point that we went into and moved from there to the various and many worksites of the City of Vancouver. But that initiative does conclude there – we currently have discussions going on – we are establishing a new case management team for example that will serve St. Paul’s, the Vancouver Hospital, and the University Hospital and we are currently having discussions with those three facilities and the unions involved with respect to that kind of an initiative so this is an alignment with where we are going with case management – we in the future see ourselves taking our case managers out with laptops in some cases. In some cases, we could see in small communities, telework offices out of case manager’s homes in some cases – as we recently saw in Salmon Arm through other facilities that we either rent or borrow and many other approaches with an intent that we move ourselves out to the worksite.

 

Q: The concern that was expressed when I heard of this from other worker advocates and later reflected slightly from Peter Hopkins, the Ombudsman when I told him of it because he had not heard of if before - was that workers might well get the impression that a adjudicator resident at the workplace was somehow part of the staff – that this was across the line between the Board being an independent – in an independent position between the employer and the claimant and in effect being a part of the employer. So it may be an appearance of impropriety even if the impropriety really wasn’t there.

A: That’s a valid concern and in hindsight again in the offer that was made to us through John Beckett of the City of Vancouver we did not consult enough with CUPE – with these future endeavours that I mentioned we would be undertaking discussions with the unions involved and ensuring that all parties have an understanding of what this is about – how it is going to better serve and that it is not as you describe it any way tainted.

 

Q: I should perhaps clarify – Peter Hopkins as I said - he didn’t know about it until I mentioned it and his reaction was that he didn’t believe me –it wasn’t so much that – to wasn’t a considered opinion but I got the imprecation that he didn’t believe me because he didn’t think that the Board would have done something like that.

A: I was in Vernon earlier this week and during the postal strike one of our adjudicators/case managers had made arrangements with the local Member of Legislative Assembly offices in Salmon Arm and acted for a period of time out of the Member of the Legislative Assembly office so you know we are going to be moving out in these kinds of ways in the future but I think what’s important in your comment is relevant – that when we move out we need to communicate, dialogue and consult and we will do that.

 

Q: Well it may go beyond that – it strikes me that one of the inherent dangers in the very – and at the same time one of the strengths of case management you want greater linkage between the adjudicator and the employer because then the employer gets, the adjudicator – or case manager gets familiar with the workplace, gets familiar with the work processes – at the same time you don’t want that linkage to result in a collaboration between the two.

A: Correct.

 

Q: At which point the manager is going to feel inhibited from acting decisively on behalf of workers when there is an actual risk in the workplace and the manager becomes aware of it.

A: I’d just like to clarify that

 

Q: How are you going to deal with that problem?

A: The collaboration is intended to be around return to work issues so most of these claims will have been entitled – there will have been decision letters about entitlement made – there is now a genuine reason to be collaborating not only with the employer but the worker in the workplace to keep the attachment of that individual to the workplace. That is what the collaboration is intended to do – not collaborate about whether the worker is entitled that decision will have been made at arm’s length. So that perception is sometimes as important as reality.

 

Q: So you are telling us that it is not likely following these meetings between management, the adjudicator, and the worker – the worker is going to be cut off and feel that cut off because of the close relationship between the manager and the employer?

A: I don’t believe our staff would do that – I don’t think I need to tell our staff that they shouldn’t do that – I think our staff understand what we are intending to achieve in terms of our workplace presence and our focus that this group has had in the last three years about the importance of return to work not only from a physical well being perspective but from a psychological well being perspective.

 

Afternoon Session

TR: Mr. Buchhorn wanted to make a clarification.

 

Buchhorn: I was advised that the policy bureau took exception to my characterization of their recommendation to the panel. There was a minor change made. We have Mr. Kemsley here who can explain it or we can talk about it on the vocational rehabilitation date.

GG: If you wish to set the record straight now might be the best time.

Buchhorn: My understanding is that the difference in the recommendation to the panel versus that which is in place is that we now give the worker 30 days notice of the change to the Code R benefits. We had been immediately reducing benefits to the pension level.

 

I am Tom Kemsley with the Policy Bureau. I don’t know what happened this morning.

 

TR: Mr. Buchhorn, in discussing, his implementation of a new Code R procedure indicated that although the process was somewhat flawed the result was correct in that policy bureau had recommended that identical process to the panel of administrators. Apparently Mr. Buchhorn’s understanding of that was not completely clear.

A: In terms of the final change to policies that have been recommended as Mr. Buchhorn has just said they would agree with the change in the Code R rate after the employability assessment. But 30 days after the employability assessment the practice from 1996 that continues to date is to change the rate immediately after the employability assessment without waiting for the 30 day period. That is purely the kind of substantive change to the policy. In terms of the process it is quite a different process. The practice change was made without consultation and notice to the panel of administrators. We have been through consultation and we have been to 2 of the panel of administrators on this issue. Now we will be going back to them in March with the final recommendation and the details that they have asked for

 

TR: When do you expect a decision from the panel on that?

A: I would hope that they would make it at the meeting. Sorry it was going back to March but it will be at our April meeting. I expect that they will make a decision in April. It did go to them in January and they have the recommendations but they wanted further information about the costing of the options and some more details about trying to reduce the period in which Code R is paid. Were there other options for attacking the problems?

 

TR: Does any other council seek to clarify?

 

Sayre: Mr. Kemsley we were told that policy was only intended to apply to those who were choosing to take themselves out of the work force or who were refusing to cooperate with rehabilitation efforts. Anybody who was doing their best to get back to work would continue to receive effectively the wage loss rate. Is that correct?

A: The policy that we had brought to the panel of administrators deals solely with income continuity benefits. If people are otherwise engaged in rehabilitation efforts then they would entitled to other benefits – planning benefits, training on the job benefits. Those are not in this policy. Income continuity benefit deals with situations where they are no longer entitled to any other benefits. Even though, for example, the employability assessment hasn’t been completed a worker may well be on their full wage loss rate if they are otherwise engaged in an active rehabilitation plan.

 

Sayre: I gather that people affected by this reduction are those who are refusing to cooperate or who are saying that they can’t work anymore and just want their pension?

A: Well they are people who are no longer engaged in active rehabilitation for whatever reason I suppose.

 

Steeves: Mr. Kemsley does that mean Code R will continue at the wage rate after the employability assessment if the worker was participating in retraining or rehabilitation programs?

A: If the worker was involved in retraining or rehabilitation they wouldn’t be on code R. They would be on one of the other payments. There are 6 or 8 wage replacement codes that rehabilitation uses and they only use Code R if the worker doesn’t qualify for anything else. It is purely income continuity.

 

Steeves: My original concern was that the worry of workers, when they changed to code R, was 2 things. One, at the date of employability assessment the date was changed and you have addressed that. Now there will be 30 days notice, correct?

A: That is the recommendation.

 

Steeves: The other concern is that the change to the policy would mean that there wouldn’t be code R payment at all until the employability assessment. Can you comment on that?

A: Prior to the practice change income continuity benefits had been available both before and after employability assessments. The practice change does limit income continuity under Code R to post-employability period now. Prior to the employability assessment wage replacement benefits are paid under other payment codes. For example, the planning codes or specific training codes that they have. There is no longer income continuity prior to the employability assessment. I think the idea is there shouldn’t be a need for income continuity because the worker should be engaged in some rehabilitation during that time period and hence, eligible for other benefits.

 

Steeves: What if they are unemployable and waiting for a pension, which could take up to 14 months? They wouldn’t get anything?

A: At the point when they are no longer engaged in rehabilitation plans because they are unemployable then they would immediately have the employability assessment done. If it did take another 14 months then they would be eligible for Code R benefits then.

 

Steeves: Why do you say that the employability assessment would be done immediately because that is not the experience of workers?

A: That is position of the department. I don’t work in the department though.

 

Steeves: Even if the assessment was done on the day of the plateau it could take weeks before a decision was made, correct?

A: Decision about the pension?

 

Steeves: Decision about what employment is suitable.

A: That is right, that is the developing pension options or determining the loss of earnings rate for pension.

 

Steeves: Assuming that the employability assessment was done on the day of plateau that is when the wage loss would end and that is unheard of that I know of. It would take weeks or even a month before income continuity would kick in.

A: You would have to work through the mechanics of this with someone in the department. It is my understanding from talking to them about this that there won’t be a gap like that in the process.

 

Steeves: What I hear you saying is that the recommendation that has gone to the panel is that Code R would start on the date of employability assessment and not before.

A: The recommendation to panel solely deals with the rate at which Code R is paid. It can be adjusted 30 days after the employability assessment to the expected pension rate. There is nothing in the policy to say that it can’t be made available earlier. The current policy makes Code R payments available after wage loss benefits cease. The department has decided to divide that up and to make income continuity under Code R available only after employability assessment I believe in order to track their different kinds of payment. There is nothing in the policy to limit it to this.

 

Steeves: Let’s take the example that I am a worker and I am plateaued today. Assuming the recommendation is approved by panel, the rehabilitation consultant, effective tomorrow can put me on Code R based on the same rate as my wage loss regardless of whether I have had an employability assessment.

A: They are not prevented from doing that by the policy but their practices are divided up under different time periods and paid under different codes. It is discretionary any time after wage loss ceases.

The issue is whether the Code R benefits is reduced after the employability assessment. If you are unemployable you are still entitled to all of your benefits.

 

Steeves: We need to be more specific. If plateaued and unemployable my wage loss stops. I would not be entitled to other rehabilitation benefits because I am unemployable so that is an appropriate time for Code R.

Buchhorn: Yes it is an appropriate time for Code R. And when the employability assessment is done should plateau not indicate 100% disability then your Code R would not be reduced because your employability assessment says unemployable. So your stream of income would continue. Only when the pension is less than short term disability benefits and you are not unemployable and you are not participating in rehabilitation that we would drop income continuity under Code R benefits.

 

GG: Let’s revisit this on rehabilitation day.

 

Buchhorn: Mr. Chair I would also like to point out that Doctor Don Graham is now here and he is our physician from Prince George. If there are any questions with that particular pilot or the medical advisor he would be happy to answer them.

 

SAYRE:

Q: Before we get into the medical issues I was made aware of another instance where the line between policy and practice has become blurred. To summarize (see copy) it is a recent decision of the review board concerning overpayments, specifically whether a type of overpayment is classed as decisional and therefore not recoverable from the worker or administrative and therefore not recoverable. The reason I thought it would be of interest is because it is related closely to the Code R issue. It appears from this decision of the Review Board and the letter which you wrote that they recorded in this decision that you had some dealings with the former Board of Governors. They had recommended that they classify as administrative an overpayment resulting from an employer giving the Board incorrect earnings information. I imagine on the belief that they were going to carry out that you had instituted some directives that staff should start carrying out that practice before the Board of Governors had done that and it turned out that they didn’t do it. The decision of the Review Board was that because had the Board of Governors had not done what you recommended that that was not Board policy and the worker was entitled to keep their benefits. Do you want to comment on that on the context of the line between policy and practice?

A: I’m not sure if it is this particular case but we are aware of this. The Review Board has said that the words in published policy don’t necessarily say the same thing as the memo from the then vice-president of compensation services that followed the appeal division decision that gave rise to this whole policy change. I believe that we have referred this to the bureau to ask them to clarify that policy with the panel.

 

Q: This is a memo from Mr. McNealy, the former vice-president. He instituted the process and then there was a letter here from Mr. Buchhorn saying in his opinion the practice was lawful even though the governors had not actually approved it.

A: Mr. McNealy’s memo, this was one of the issues I referred to this morning. When the appeal division made its decision on retroactive adjudication there was not, at that time, a decision by the governors. It was left to the division to take the action. My recollection was that Mr. McNealy then issued a practice that he did copy to the governors I believe and that set out the rules that the division followed. It drew the distinction between administrative error versus decisional error. The issue that comes out of this Review Board decision is that the words in the manual don’t necessarily say what the McNealy memo says.

 

Q: I’m going to tell you what issue I think arises out of this and the Code R story. When we put labels like practice and policy on things it is just semantics. With respect to distinction in the act – which is what we are trying to talk about here – it seems to me that what the policy of the governors is the actual substantive rules that determine what people get under the Act. Policy tells you what kind of benefits a person gets and you can’t change that by changing practice. I don’t see how either one of these situations could have been regarded as practice changes. Does the Board understand that distinction so that we are not going to see more benefit cuts described as practice changes?

A: As we’ve evolved in our working relationship with the bureau and with this panel one thing that we have all agreed on is that if there is a practice change, procedure change or anything else that affects benefits or will cost employers more that will go to the panel. We have all resolved on that issue.

 

Q: If these issues came up again where something would change what the worker gets then it is policy and it would go to the governors.

A: I am not sure that that statement says that what the Board did was necessarily wrong in the context of the time that it did. You drew a distinction between policy and procedure and unfortunately that is not the only distinction that needs to be drawn. It is not just policy and operating procedure. In the Code R the policy said something to the extent that the nature and extent of benefits and the duration of those benefits were at the discretion of the vocational rehabilitation consultants. The vocational rehabilitation consultants have been practicing a certain way. The then director thought that how that how that discretion was exercised was up to management. We, I think agree, that where there is a change in how discretion is to be exercised that will affect the amount that workers receive or the amounts that employers should pay that should go to the full public policy process.

 

Q: So it is now understood that that would be considered policy change or what ever it is considered it now goes to the governors?

A: That is my understanding or at least that is the general understanding of all the parties.

 

Q: We won’t see anything more like this in future?

A: What you have seen since this situation is a full circulation of all practice directives, a full circulation of all initiatives within the division put out for comment so that we have gone beyond even the issues of policy and practice. We have gone out of our way to ensure that stakeholders are allowed to comment not only on practice change but also on new methodology in terms of how we do our business. We will endeavour to continue to do that.

We receive requests all the time for "what does this policy mean." If there is no policy, if there is a variety of words that can be interpreted from a policy or if we have an inconsistent practice then we will issue direction to staff to say this is how we think practice should be followed. If this represents a change that strays from normal practice then it will be brought before the panel.

 

Q: I assume you mean that you will refer it before it is implemented.

A: Yes so I draw that distinction again. I may issue a memo tomorrow morning saying I notice an inconsistency in how we are doing this and this is how we think it should be done. In order to bring consistency to the process where the discretion is left to the department or its officers we will clarify that. If we are saying stop doing it the old way and start doing it a new way and that is going to impact workers or employers we will work with the bureau on that to send it to the panel.

 

Q: That distinction makes sense to me so I am pleased to hear that the Board understands it that way.

I would like to turn now to medical decision making. Some 700 or 800 workers have appeared before this commission and its clear that one of the most consistent messages is get rid of the medical advisers, stop them messing around with our claims, stop them disbelieving our doctors when our doctors tell us and the Board that we are unable to return to work and the medical adviser looks at the file and says sure he is. Stop them disbelieving our doctors when our doctor says he is totally unemployable and he can’t do heavy work anymore and the doctor says sure he can. We heard a lot this morning about the case management system and the new role of the medical adviser. We were told that the description of that role would be reserved for this afternoon. How will the role of the medical advisor change in a way that will prevent those kinds of justifiably angry reactions?

A: I am happy to tell you that there is a huge change happening at the Board to deal with your concern. I have worked at the Board, full time for 5 years and as a sectional medical advisor prior to that since 1986 so I know exactly what you are talking about. Most of those issues occurred when the claim was very old, at least 20 weeks into an injury when things get very difficult to treat. You are long past the major therapeutic things that you can do for a person when claim has gone on that long. That’s when you get into chronic pain disorders, chronic illness behaviour and psychological problems. There is no physician in this country who doesn’t have a great deal of difficulty in dealing with those claims when they get to that level. When we started talking about case management we thought the best way to deal with chronic illness behaviour is to do it right in the first place. My role as a medical advisor is to not get involved in claims at the 20 week period but to get involved in case management at 2 weeks. The plan is to get involved with the case as early as it can get into case management. The basic rule is that any claim that goes beyond 4 weeks or that has the potential to go beyond 4 weeks will be in the case management model immediately. This means that some claims will be seen within days of the injury. My role at that point is to try and understand what the clinical problem is and then go to the attending physician and between the two of us come up with a collaborative plan helping that worker to get better in the most expedient manner possible.

 

Q: Isn’t that the treating physician’s job?

A: Yes it is so I don’t tell them what to do but there are many services available that physicians may not be aware of. I consider my role to be a facilitator, an educator, someone to point out where is the best place to get the job done.

 

Q: What sorts of services are you referring to?

A: Several new things have happened where we can get expedited information from various experts. We don’t have to wait in a queue for four months to get their opinion but we can get it within 2 weeks to get the information back on the file within three weeks. A lot of physicians don’t know how to use expedited consult yet. And I work with the specialists as well to tell them that because they are getting more money for the expedited consult and because it is really valuable to us in treatment they should really take advantage of it.

Q: I heard that the Board will pay more money than the doctor would get for medical services in return for the doctor seeing the worker immediately.

A: Yes that is in the BCMA WCB fee schedule available to all the physicians in the province. So that is one of the ways that we can expedite getting the information we need to make good decisions up front on the claim.

 

Q: Is the choice of the specialist that gets the expedited referrals up to the treating physician?

A: There are two ways to do it basically. In the case management model what I would do is collaborate with the attending physician and it would be their choice as to which way we want to go. Sometimes the specialty clinics that have been set up is the quickest most expedient way to go, sometimes you are better off to stay in your own community and deal with the physicians that are providing service all the time.

 

Q: If the treating physician says that he sends his patients with back problems to Doctor Jones. Is that okay?

A: The treating physician and I would sit down and examine that . If Doctor Jones can’t see the patient for 6 months then we will sit down and talk about the implications for that worker.

 

Q: Does Dr. Jones get the increased fee if he can see the patient immediately?

A: Yes he has that option. If I talk to the family doctor I will say if you want a consultation consider who you want to send them to. Ask for an expedited consult because if we can get it in two weeks that is far superior to waiting six months.

 

Q: What other services can you make treating physicians aware of?

A: In the whole realm of establishing diagnosis on claims, which is critical because without that you can’t do treatment. To establish diagnosis is really difficult in the usual MSP health care system. If you need an MRI to determine what your problem is you will wait 4 months in most communities but through WCB, MRIs, CT scans and those kinds of investigations can be done within a very short span of time. It can take between 10 days and 2 weeks to make the diagnosis and get on with management planning.

 

Q: How has the Board made those arrangements? Is that by also offering hospitals and labs an increased fee for testing?

A: In the beginning arrangements were made with hospitals like Richmond General and St. Paul’s Hospital. They would see workers in an expedited manner. We also get them in Prince George where I work on an expedited manner as well.

A: The initial arrangements were made with St. Paul’s by adding an afternoon shift on their MRI so as to see workers without taking away from citizens’ service. I am not aware of an expedited fee for that. We’ve worked through the public sector facilities and tried to build in extra capacity.

 

Q: Instead of an expedited fee you have provided them with an extra staff or full time or part time staff to use their equipment?

A: Yes and I should add that the expedited consultations have been in the WCB-BCMA fee guide since 91.

 

Q: You mean they would get the same amount that they would get&ldots;

A: No there is an expedited fee of $200 agreed to for specialists so that fee - if it is done within 3 weeks of referral from the attending physician – attracts an enhanced fee. That is not a new feature that has been there for 7 years but I think Dr. Graham is suggesting that physicians are not aware of that.

 

Q: What other services are there?

A: Other than getting the information you need to manage claims from specialists and investigations the whole other area is treatment. Up until recently we have not had a great deal of choice with respect to treatment and rehabilitation of workers. Physiotherapy was a mainstay along with chiropractic manipulation and basically tincture of time, which drove everybody crazy. The difference now is that once we have established diagnosis and I sit down with the attending physician, who in most case management claims are orthopedic specialists, and we work out what that physician feels is the best possible way to rehabilitate the worker. We have a new model available called a continuum, with multiple providers providing work conditioning programs, occupational rehabilitation, pain programs around the province that are available to us now. In addition there are specialty clinics like the hand clinic in Richmond or the head injury assessment team, which can deal with a more specialized type of claims.

 

Q: I am a little surprised to hear that an orthopedic specialist in Prince George wouldn’t be aware of these special services around BC without the board having to tell them about it.

A: I would be willing to bet that if you pulled the physicians in BC you would find a very small percentage that could explain what is happening in the continuum in the province. This is other than the ones that have had direct dealings with physicians explaining it to them.

 

Q: The Board, I know, also has its own special facilities here in Richmond.

A: The Board’s facilities are the gold standard facilities to which they compare other providers and provide some standardization for treatment around the province. So it is being measured and monitored in that way.

 

Q: Are you a qualified orthopedic specialist?

A: No I am a family doctor with a certification in family practice.

 

Q: So when you sit down with an orthopedic specialist I can imagine you would be a bit diffident about telling the specialist what to do.

A: I don’t tell them what to do. I learn a lot from talking to these doctors and I also contribute a lot in terms of what is available to help them manage their claims in the best way possible. They don’t necessarily know what the best plan is for rehabilitation. They deal with the problem and look at it periodically to see how it is going but there is no plan.

 

Q: What did medical advisors do before case management especially in the context of assessing how disabled a worker was, when they could go back to work and the other things that I mentioned at the outset?

A: Basically the difference is that most of those claims we would look at when they got beyond 16 to 20 weeks. That is a long time into recovery for claims. Most injuries should have recovered by that point in time so then we were stuck trying to deal with claims that were delayed that shouldn’t have been and then dealing with how to care for them in the best possible way.

 

Q: It wasn’t uncommon for that to arise because an adjudicator was saying that this person shouldn’t have been off work so long so I think I will ask our medical advisor to see if he should be returning to work.

A: Yes to give some explanation.

 

Q: That might happen despite the fact that the attending physician was still sending in Form 11 saying they are unable to work.

A: Yes

 

Q: And in effect in many of those cases the medical advisor would be contradicting the advice of the family doctor saying yes this person should be back at work. That is where a lot of the hostility has arisen between doctors as well as between injured workers and the Board’s medical advisors.

A: That is definitely one of the sources.

 

Q: Will that happen under case management. There will not be any stage of the process at which the Board medical advisor is going to be making judgements that contradict what the attending physicians – the specialist and the family doctor is saying?

A: The way case management is set up the doctor talks to doctor in a collaborative process and we come up with a joint plan that is fed back into the system that we know about and that we agree with. Then the case manager follows that plan that is already prepared by the community physician.

 

Q: At the point when it might be considered appropriate to end wage loss benefits who provides the medical input to that decision?

A: On the clinical care plan that we devise together we try to determine as best as possible when the expected date of recovery will occur. Given all the possible things we could do to help this worker get better when will they recover where there will be nothing more for us to do medically or surgically. We then identify that date.

 

Q: That is a prediction a couple of weeks, 4 or 5 weeks into claim?

A: Yes

 

Q: 12 weeks into claim the time that was predicted has come around and the worker says he can’t go back to work and the attending physician agrees. Is that the end of the story? Does he continue on benefits?

A: Yes he continues on because if there is a discrepancy like that the attending physician and myself will be back on the phone trying to figure out what happened and what could be done to rectify it.

 

Q: If the Board came to the conclusion that the attending physician was simply letting the worker stay off the work longer than needed would the medical advisor provide a memo essentially advising the claims adjudicator or case manager to terminate the benefits. Or would the matter be referred to an independent specialist to sort of referee that dispute?

A: In case management, since I’ve been doing it, we haven’t seen that happen yet. Most physicians appreciate the collaborative process up front and we are all aware of all the issues that are on the table. We are all working for the same goal, for the claimant.

 

Q: Would you agree that, if for nothing else, for the perception of fairness on the part of the worker, that if that ever should arise that it would be preferable to have an independent specialist?

A: If it is a medical issue or depending on the reason for the attending physician negating the return to work, if in discussion it is a medical issue or diagnostic problem then we agree to get consultation.

 

Q: Consultation with an outside doctor?

A: Yes and the number of medical exams that I do at the Board has diminished greatly since this plan was implemented. We are working in the direction of empowering the community physicians to manage these claims in such a way that we don’t get into the prolonged claims. There is no need for me to examine when they can examine.

 

Q: This is consistent with what you said before about your relationship with the attending physician under case management. You are more of an advisor and informer as opposed to someone that could over rule them. What about the pension assessment process. Are you involved in any way in that?

A: No I’ve done no pension assessments.

 

Q: The problem is that workers don’t trust board doctors because they are board doctors. They might accept the medical opinion of an independent specialist much more readily. At the point of assessing the worker for pension purposes it is going to be done by a Board medical advisor as it has been in the past? Or will that change with the case management system?

A: Most of that concern if not all of it should be addressed by the initiatives that are under way to establish the external measurement process using the Arcon technology. It is effectively a neutral, scientific measurement process outside the Board and that is probably the best answer for that kind of concern. It removes the conflict of interest with the Board physician who might have previously been involved on that particular claim or any other Board physician that may have been involved. There are some parts of that measurement that require medical expertise around the medical limitations that are not measurable in a physical sense whether they are additional factors, sensory problems, certain unique kinds of injuries. My sense is that that approach will address those concerns in large part.

 

Q: Arcon is presently a pilot project?

A: Yes

 

Q: You are saying that if the tests work out then the Board will use it for pension assessments?

BLAIR: Yes it is a reliable technology. There is considerable experience using it in other jurisdictions so the issue at hand is applying it appropriately and accurately to the guidelines and the process that has been developed in this Board. That is what is closer to the point in terms of what is being piloted – applicability and accuracy.

 

Q: I attended a demonstration of Arcon and it was done by a Board physiotherapist up at the rehabilitation centre here. Toward the end of having watched what was going on and hearing the description of how it would work was that this might be a very big part of the solution to the problem of worker hostility because it struck me that the one remaining input that was needed from a physician for the purposes of that test was the sort of narrative comments that you can’t measure with a protractor or whatever other equipment is part of the Arcon technique. Who better to provide that then the attending physician? The anecdotal comments that seem to be instrumental in a pension decision about the worker’s subjective pain complaints and that sort of thing would be provided, if provided at all, by the attending physician. Is that something that you are looking at?

A: I agree with your recognition that there are parts of an evaluation that require independent clinical judgement. I have a real problem with your suggestion that the attending physicians would, in general, be capable of doing that very effectively or be willing to do it. It is a relatively specialized field of medical and clinical expertise and assessments. It is a knowledge base that the rank and file practitioner in the community probably doesn’t have so if you were prepared to get into the issue of suitable training and certification to do that reliably then you might have an answer. It would come down to medical expertise and the availability of people with that kind of knowledge.

 

Q: I am talking about a medical assessment of how disabled a person is and what sort of work activity they are capable of so that the Board can proceed with the next phases of pension assessment. What is involved in that that an orthopedic specialist could not do?

A: With respect, quite a lot is involved in that. It also, as you pointed out, involves some assessment of the particular occupation and their ability to do that. That also involves someone outside the medical field in a sense, someone in the in the vocational assessment field who have input into that process as well. To be consistent, fair and equitable it requires a certain amount of expertise to do it well and to do it reproducibly across a variety of centres across the province.

 

Q: You are resisting the idea that the attending physician would have a key role to play in the pension assessment process? You don’t think that is practical?

A: In my limited experience I am not aware of any jurisdiction who does that now and I don’t see how it would be now.

 

Q: Will that be done within the Board with their doctors?

A: Part of that will need to be done by physicians with the appropriate training. Whether that remains as in house physicians from the board or contracted out to suitable independent medical examiners that is an issue to be answered down the road.

 

Q: At present the plan at Arcon is to be contracted out is it not?

A: Yes

You may want to distinguish between the Arcon initiative and the medical examination. Arcon is a software and diagnostic tool that assists in calculating the outcome from the medical examination. There are two issues here. Should we use the Arcon platform for measurement of functional impairment? The second issue is who should we have do the medical evaluations. Subject to the outcome of the pilot, which will be evaluated by Cooper’s Librand and put into the consultative process I am hoping that it will be a success and that we will be able to have independent medical examiners who will have trained staff that they will supervise to do functional impairment evaluations throughout the province. The Board physician would not be involved in that because of the perception that the insurance company is doing your medical examination.

 

Q: Is this process of being an independent medical examiner something that people become qualified in through course that are available now?

A: We put out a request for a proposal. We tendered this initiative Some groups in medical community have experience and specialize in functional evaluation.

 

Q: Are there courses available in medical schools in BC?

A: Most of it is American and some Board physicians have been certified in the NADEP protocol. It is largely centred around the AMA guides.

A: The certification process is not available in Canada as of yet. I am aware that there is an organization being established to create the equivalent.

 

Q: Are you telling us that all Board doctors over they years who have conducted examinations did not have this not available in BC certifications?

A: I am sure that some have been certified but I don’t believe that it was condition of employment.

 

Q: You now feel it is a necessity?

A: What I am telling you is that we are feeling the urgency of this from the outside.

It is my view as the head of the division that wherever we can put in place certification by an independent or neutral party that demonstrates that the activities of the board are conducted in a professional way we will seek to achieve that. We are requiring CARF accreditation for all of our rehabilitation facilities. We are requiring accreditation for all of our rehabilitation providers. It is US based but I think that we need to show a gold standard with respect to the evaluation and the processes we use as a board that will withstand public scrutiny. The past process has been that we have had some very experienced physicians who have learned this business through course, perhaps not through certification and they have trained other physicians. I am not so sure that is necessarily an appropriate way to show that we have an accredited, certified, repeatable process.

 

Q: Is it true then that some of the Board doctors that are doing this work now are not certified in this manner?

A: It is true that some who are doing this work now are not certified. The majority of those physicians in BC who are available, I suspect, to do this are within the Board physicians.

 

Q: Would you have made that remark at a convention for the BCMA when you were running for president?

A: I would ask anyone in the room with independent medical examination qualifications to put up their hand and I am not sure that I would have seen any.

 

Q: I thought you just said that the only people capable of conducting this examination were essentially Board doctors.

A: Given your concerns about the level of ability of Board physicians and your opening comments about your feedback from claimants I think that is the obvious answer.

I think that we should qualify this and say that there is no requirement in Canada for any kind of certification for medical impairment examinations by the medical community. On the other side of the business in litigation you have the same issue. I suspect that there are some people in the non-WCB environment who have made practices out of functional capacity evaluations for litigation purposes. I am not aware that they would have a certification process. It is an area that they specialize in and are perceived to be experts in.

 

Q: The courts consider them to be experts in that capacity correct?

A: Yes

 

TR: What does the American jurisdiction certify? Is it occupational medicine? Is it something else?

A: There are two organizations one is NADEP and the other is AADEP. One is the American Association of Disability Evaluating Professionals and the other is the National Association of Disability Evaluating Physicians. We are about to have CADEP – Canadian equivalent.

 

TR: These are not like the Royal College certifications?

A: No they are not Royal College certifications or American College certifications. They are association certifications. They are certificates of competence I suppose you could say. They are not extensive training programs that last for years. They are training programs and they often have ongoing educational opportunity and they may have an exam process at the front end so they are a reasonably solid certification process.

 

TR: Is there an academic requirement or residency requirement for certification?

A: I don’t think so. The majority of the individuals involved in this would probably come from rehabilitation fields where they could have a rehabilitation fellowship or they could perhaps be orthopedists or from other fields in other areas.

 

SAYRE: Mr. Buchhorn you showed us a slide that had staff per 1000 claims first reported across the top of it. Do you recall that?

A: Yes

 

Q: When you talk about productivity it seemed to me that you were measuring the number of claims that could be handled per the number of staff people in a particular location. Is that what it is measuring.

A: I think I demonstrated the methodology. It is the number of staff involved in the compensation services division divided by the number of new claims registered. That doesn’t take into account re-openings, it doesn’t take into account the complexity in the system, it doesn’t take into account the increase of employer protest on claims, it doesn’t take into account the reduced work week that has been negotiated in the last 10 years. It is a very crude measure but one we would like to see going in the right way because no other private or public sector corporation in this province has had the luxury of being able to keep their head in the sand and have their productivity line go the wrong way.

 

Q: Productivity means handling more claims with the same number of people or better yet fewer people?

A: Is that handling them more efficiently perhaps? Yes.

 

Q: Where does the change come in? Does the change come in on the people who are making the decisions. Are the same number of people making more decisions on more claims and presumably spending less time on each one?

A: I think the answer to that is if you re-engineer your processes and you have the appropriate people doing the appropriate things and you use specialists to do some of the specialized things in an organization of 1000 people you should reap significant benefits in terms of processing more claims or processing them more efficiently.

 

Q: That doesn’t quite answer my question. If you have 1000 claims and you manage to handle them with less staff to increase productivity through the means that you have been telling us about is that because you don’t have clerks wheeling paper files around? Or is it because you have less adjudicators deciding the claims and they do it faster and spend less time on it saving FTEs there?

A: I wouldn’t want it done faster with less time on it but I think that there are efficiencies that we can make in the adjudication process. One of the largest and most effective strategies for us has been in the removal of the paper processing system such that we don’t have the need for file clerks, phone controls, and for as many of the support staff.

 

Q: The intention is not to get adjudicators to get decisions done faster in less time? You are willing to assure us of that?

A: We should be making quality decisions so I don’t think that we should make any judgement about whether that should be done quickly or slowly. We pay these people $65,000 to $70,000 per year to make quality decisions and I am not going to sit behind them and tell them that they are too fast or too slow. They are knowledgeable workers, they know the work that needs to be done and I think that they should be respected for that.

 

WINTER:

Q: In 1991 the Act was amended with the governance structure. It was at that time that policy ended up in the Act with a different focus than it had had before. Is that correct?

A: Yes with specific reference to the panel I believe and also with some references around the rights of the board and the president, I think, to refer decisions to the appeal division.

 

Q: Decisions from the review board that the president felt might contravene "published policy" of the governors. There is similar language in Section 96 for certain type of employer appeals that don’t involve claims but on the assessment side and the prevention side an employer has rights to bring appeals on certain grounds, one of them being contravention of published policy of the governors. Is that correct?

A: Correct

 

Q: Those were new concepts in the Act that were all of a sudden dealing with the concept of dealing with a published policy and they came in in 1991, correct?

A: Correct

 

Q: It became a complicating factor with what is policy because now the Act all of a sudden brought in language on published policy. The policy manual was there before yes?

A: Yes

 

Q: The Testa case was dated 1989 so that was before the amendments when published policy was raised into the statute.

A: Correct

 

Q: Doctor Graham my understanding is that issues on health care is being dealt with Monday and Dr. Blair will discuss the role of the medical advisor so I will defer for today any extensive questions in that area. Doctor Graham do you act as a family doctor now or did you?

A: I have worked full time with Board for 5 years and before that I was a family doctor in Prince George for 20 years.

 

Q: You would have had occasion to be on the other side dealing with the board on behalf of patients of yours who had injuries or illness arising from work.

A: Many

 

Q: When reading files you can often sense a relationship between doctor and patient and that flows into the documents. Can you comment on how, as a doctor, when you are communicating to the board on behalf of your patient how you feel on behalf of your patient?

A: Primary relationship for any patient is with his family doctor. The problem comes when dealing with disability medicine. It is a very poorly understood subject in North America. You are faced with signing disability forms every day of the week. The patient just wants you to sign the disability form because it means money to them. Lots of times the medical issue becomes secondary to signing the form. That is when all the problems start. If a physician is directive and understands that the well-being of patient comes first – and that may not mean disability - then when they sign the form it is done with some kind of expertise. If they had an extreme sensitivity to this patient then they would be directive not just compassionate for time loss.

 

Q: When I was listening to people like Mr. Sayre or Mr. Steeves is that when they look at the Board medical advisors they start getting into maybe they are not so objective. Acting for employers it seems that some of the doctors are writing things down a little more subjectively on behalf of their patients then objectively. Is that fair?

A: That is correct. The very good physicians send in objective material but most physicians agree that in seeing the patient every two weeks or whatever frequency they choose they are dealing with the complaint at hand, which is a subjective thing. It is not very likely that you are going to give them a thorough exam every time they come in complaining of the same complaint they had the time before. So a great deal of the comments you will see at the board is numerous subjective complaints and not much objective.

 

Q: From the employer community we saw the role of the Board medical advisor adding a little bit of objectivity away from that relationship to be able to look at that evidence and all other evidence that may be available to them and give another opinion on the file. Is that your opinion of what the board medical advisors are trying to do?

A: They try to be objective as humanly possible.

 

Q: Current system – you speak quite favorably about the new case management program. The concern I had was when you got to the point of we are going to collaborate to the nth degree. Is the Board losing control over something that the Act seems to say is still ultimately the Board’s responsibility? Mr. Sayre was trying to push you towards, if you can’t agree we are always going to let the worker stay on benefits throughout. We are going to let the family doctor decide Would the family doctor have the final say or would the Board medical advisor?

A: It will always boil down to some issue that has to be addressed – medical, psychological, socio-economic. There will be an issue as to why they feel the claim should go on and not be resolved. The other side of the coin is that we don’t have to talk total disability for all of these claims. There are many solutions in the workplace now with disability management programs where people can continue to work safely even though they are still recovering from an injury. That is an area that is slowly developing that I think is a huge necessity to help workers stay at work safely with medical input and the agreement of the family doctor or the primary care physician. The problem there is that they don’t understand what is going on in workplace very well except through the eyes of the worker. So the Board, in case management, plays a huge role in finding out what is happening on the work place and feeding that information back into the collaboration between the medical advisor and the attending physician.

 

Q: If there becomes an ultimate dispute between yourself or the Board and the family doctor and/or attending specialist it is the Board’s responsibility to make a final decision on how they are going to handle this matter. This is appealable but a final decision has to be made and that is the Board’s responsibility. Do you agree with that?

A: That is right.

In isolation if all we had was a new model that had collaboration between the board physician and the attending physician then I would agree with some of your concerns. However, the early intervention approach that we are taking ensures that workers receive treatment from a variety of programs with interdisciplinary professionals. There are comprehensive discharge reports available from that interdisciplinary team. The ultimate decision is the adjudicator’s decision weighing the evidence of the occupational rehabilitation program discharge report, the functional evaluation unit report, the Board’s medical advisor report and the attending physician’s report.

 

Q: I want to talk about some trends – you called them statistics. I’ve provided a copy of some pages from 1996 Board’s annual report – look at the last page. It sets out certain numbers from a 10 year period from 1987 to 1996. First one I want to note is injury rate. Under statistics that is the first one highlighted – it says injury rate. It describes how you get that and then excluding the effect of bill 63. The reason I am using those numbers are because it does go all the way back 10 years. Looking at those numbers you would agree that there has been a steady decline from 1990 when it was 6.7 per 100 person years down to 1996 when it was 5?

A: Correct

 

Q: As Mr. Fattedad likes to say that is a good news story. Something is working within the prevention safety area so that the injury rate is going down.

A: Yes

 

Q: The concern is that other indicators are going up. Duration of claims is rising. From 1990 – 1994 there was an increase then there was a decrease for the next two years and in 97 it has gone back up to the 93/94 of 24 days for duration

A: For the same injury yes.

 

Q: The other number that gives the same concern as claims cost is – here we have a lower number injury rate - an accelerated claims cost except for 94 when it went down. It did go back up in 95 though.

A: Not sure there is a direct correlation between injury rate and claims costs because your work force is increasing. So you could have a reducing injury rate but if you have an expanding work force then you may have more claims, you may have higher costs. In fact, short term disability claims have been coming down.

 

Q: Let’s look at that under statistics. I didn’t highlight it. The first line is claims first reported in a year. From 1990 to 1996 I see a decline basically. We may have a greater workforce but we do not have a greater number of claims.

A: Claims went up in 1997 by 2%.

 

Q: We know duration went up in 1997 and claims went up in 97. What about claims costs?

A: I believe they went up about 5%. The claims increased by 2%. Claims cost went up about 5% and the difference of that 3% is the increase in duration of claims.

 

Q: We have to try to find out why duration is going in the opposite direction from injury rate. Is it something within the Board or outside it or is it a combination of factors?

A: In the ideal world we would have the appropriate data we could do some analysis that would give us some concrete answers. I would love to have the data that you saw Sid put up with respect to the profile of employers. Within a couple of years, given the data warehouse project, I am hoping to get that kind of an analysis by industry, by employer aggregate, mix of claims, what types of injury types are we receiving, which ones seem to be of protracted duration. Right now I can’t tell you if we had the same mix of injury this year as we had last year. I am assuming with a population of 200,000 there wouldn’t be significant differences.

 

Q: When did you join the Board?

A: In 1993 I joined as part of the administration. I joined Board of Governors as the Minister’s representative for two years prior to that.

 

Q: In 1990 the duration rate in the injury year was 20.4. In 1994 it went up to 24.3. First off are there any statistics on what each extra day of duration, on average, costs?

A: $8 million

 

Q: So that is a significant number. When you go up by 4 days here we are talking $32 million?

A: Correct

 

Q: Did the Board do any study or investigation over this period of time where every year you were seeing an escalating duration rate?

A: I am familiar with the fact that Mr. Dorsey did do some significant analysis of what was driving duration back in about 1993 but I don’t recall anything specific coming out of that analysis. We don’t have the ability to analyze that amount of claims in a statistical fashion. I asked this question of the chief statistician, Keith Mason, when these figures first came out for 97 and he couldn’t help with where duration is rising.

 

Q: You said that claims cost increases are significantly tied to duration increase, right?

A: Yes

 

Q: In the Board’s strategic plan, the goal on duration is to cut it by 20% by 2000 and I take it that is from the1995 level?

A: That is correct.

 

Q: Without having a lot of information. What is the game plan when you don’t know what the problem is?

A: You look at what you are doing in your current state and you look at best practices in other jurisdictions in terms of how they achieve significant reductions in duration and increased return to work rates. You then project that if you did that in your claims population that you could achieve the same kinds of outcomes. Most of the initiatives that have been undertaken and that are articulated in the strategic plan were, in fact representative of best practices in other jurisdictions.

 

Q: With respect to the duration rates would it be fair to say that the Board’s best plan right now is the case management plan?

A: There is a fair bit of evidence that that will have a dramatic reduction of duration in the C claim area – the complex claim area. Not only that, if we deal effectively with treatment and return to work it will have a significant impact on the conversion rate from STD to LTD claims and vocational rehabilitation referrals. The Prince George pilot, while encouraging, I don’t think is statistically significant in that it is such a small number of claims compared to the aggregate within the system. You know Mr. Munroe suggested a 22-day reduction in duration for complex claims. That is a significant reduction and one that would have us on target to achieve the 20% reduction overall.

 

Q: Are there other initiatives going on other than the ones discussed today that would have some significance on the duration question.

A: It is my opinion that the entire continuum of care strategy where we use early intervention techniques and put people into effective rehabilitation where there is no disability plan in the workplace will have a reduction in duration and a significant impact on the conversion from short term to long term disability.

 

Q: We will hopefully have a good idea by the next Royal Commission if that worked.

A: That’s correct. I should add that in the area of ASTD adjudication I believe the initiatives that we have under way will also ensure that we get into the work place early and assist the worker with job modification before we see chronicity set in.

 

Q: I have one other question for you on the statistics. I want to deal with the one you’ve given – staff per 1000 claims first reported. You showed the number in 1997 was 5.3 and in 1990 it was 3.1. That is a significant increase (about 71%). At the same time, looking at the Board statistics actual claims have dropped by about 14%, from 217,000 and change to 186,000. So we have staff going up and claims going down.

A: I don’t think it is that simple. I think the effects of not staffing appropriately for the 217,000 claims that came into the system in 1990 haunted the system for 3 or 4 years after that. If you increase case loads to a level where people cannot do their jobs effectively you pay the price. You burn out your staff, you have high turn over, you have people on sick leave. In another context the complexity of decisions is increasing because of a changing mix of claims. The employer involvement is increasing making our job more difficult. I would argue that we have a pyramid, a base of claims that are always subject to reopening and every year that goes by the bottom of that pyramid gets a little larger. You are not looking at all of the work that is involved in reopening every claim, managing every claim for a lifetime. Every year that goes by that you take in another 200,000 claims there is more work that has to be done on the existing inventory of clients in our system. That might just be the payment and authorization of medical treatment. It might be the provision of a new prosthesis, it might be a new wheelchair. All of these things take administrative time. We would love to be able to streamline that and improve our processes and we are working hard on that. I think it is very simplistic to look at these aggregate numbers and say that somebody at the Board is doing something wrong – you are overstaffed, you are incompetent, you are lazy, etc. I know that is a view that is supported by certain members of the community and I don’t support that.

 

Q: Let’s look at it a little differently then. You talked about the E-file system and the efficiencies that you hope to achieve. Does that translate into a goal of reducing staffing?

A: It could. The employer community has become fixated on administration costs. We spend a billion, two hundred million dollars a year roughly in benefits. I think it would be foolhardy for us to start niggling about whether we have three or five or twenty less FTEs to manage a benefit portfolio of $1 billion, 200 million per year. So the strategy is that where we can rework or re-engineer our processes we will move people to the back end of the business so that we can do better job in vocational rehabilitation, a better job in disability management, a better job in assisting people at the back end. We have had an inverse proportion of staff. We have had a staff of 800 in short term disability and 200 staff in long term disability. Long term disability is where the bulk of the costs are so the whole re-engineering process was intended to move staff from the front end to the back end of the system an provide a much higher level of service to the injured workers at the back end and also to significantly reduce the costs of the system. If you get in there and use an interdisciplinary team for those claims I think we can see a huge benefit in terms of keeping people attached to their work place.

 

Q: I think what you did was you cut off one part and said that the employer community is focused on administrative costs. The employer community is focused on all the costs and administrative is just one side of it. I think that we can agree that the employer community funds the system so it is not unreasonable for the employer to be concerned with how the money is managed.

A: I would agree that that should be of interest to employers. I would argue that the micro-management of administration costs might be something that one would leave to the administration and hold the administration accountable through ongoing reviews by the people they work for. I think that there has been a tendency by the employer community and particularly ex-employees of the Board to demonstrate their wisdom to administration members.

 

Q: I want to talk about quality services, accountability. I want to start with the role of managers and I gave you the practice directive entitled Review by Manager. That was dated January 15,1996. Is this practice directive still in effect?

A: Yes

 

Q: There used to be a system in the policy manual called a managerial review.

A: Yes

 

Q: It was an informal, semi-formal avenue of appeal in the claims system.

A: Yes

 

Q: The employers’ general experience with this is if a managerial review was brought often the decision would say I have looked at the file, I find that the adjudicator used all of the evidence covered on the file on reaching his or her decision so there is no basis to make change.

A: Yes

 

Q: Are you aware that that happened quite often in managerial reviews?

A: That was my sense that it was largely a reconfirmation of the decision of the adjudicator.

 

Q: From my experience in the employer community I found that it was less used. Did you find that experience?

A: I am not sure that we did an analysis of the numbers of managerial reviews that were coming into system but when looking at its utility and when we looked at the Hunt and Leahey administrative inventory they commented on the lack of utility of this particular initiative. What we did is we took the mandatory requirement by policy to inform employers and workers of their right to a management review and made it an informal process. So that in a true service environment if I have a problem with a service I am going to ask for a manager. The managers are available to deal with service complaints of any kind but it is not required by policy in the decision letter that you have a right to a managerial review, which was generating a whole variety of management reviews because people felt that was a step they had to take in the process before they went to the review board. Now we hold case conferences on a weekly basis with staff so that we can discuss issues that might be the subject of a management review. It is a more comprehensive peer review process so that is how we attempt to build quality into the system.

 

Q: I read this practice directive as having two concepts in it. The first 3 paragraphs is dealing with the internal quality control, quality assurance aspect regardless of whether the manager asks anybody to review a case. The rest, starting with a paragraph saying "the party must apply in writing&ldots;" deals with the more informal request from an outside party. I want to deal with the top part – the Internal quality control mechanism used. In the second paragraph it says that managers also have the duty to ensure that decisions of board officers are consistent with the act and published board policy and are based on proper evidence consistent with the higher standards of adjudication. Managers will continue to review decisions of board officer on a random basis as part of a regular quality assurance program." Is that still the position of the Board?

A: Yes

 

Q: How is that being implemented. Is there any set program to ensure that, for example, they will do random basis reviews as a regular quality assurance program? Is there a goal or an objective or a target for a manager to meet when doing that?

A: No there isn’t. It is left to the discretion of the manager. We target by a number of ways. E.g. the data on ASTD claims – if I or directors see something abnormal we will send in a team to do file reviews. Doctor. Blair was just part of team that did an entire file review of files in the lower mainland on compliance with the clinical care plans and the continuum of care. We will take specific initiatives and review files or we will take a specific individual based on complaints or any other abnormality and review files. Case management initiative is designed so that we don’t have to rework adjudicative decisions. When you have an interdisciplinary team working collaboratively around the table you have a documented case plan and return to work plan so there is no need to go in and review that. The only need is for manager to ensure that the plan is being complied with.

 

Q: If nobody is overseeing the manager then how do you know if any quality review is occurring?

A: I will ask Mr. Munroe to answer because he is tenacious in his encouragement of the case conferencing process which brings difficult claims to a peer review process and he is probably aware of the file process that is used.

I think Ron has pretty much captured that approach in the case management arena. As we have been designing the 2 other arenas where we also have to bring some attention with respect to quality assurance - in the call centre and in entitlement we have specific initiatives in those arenas as well. E.g. in the call centres – just speaking to the Richmond one – we not only have 2 management positions overseeing the call centre operations but we also have 2 supervisors and one full time trainer. The primary role of those supervisors and trainer is to provide training, mentoring and quality assurance day to day. As well we will be introducing a triage person – quality assurance person – who will come in to review a set number of claims and refer them to the entitlement arena.

In entitlement, through a similar mechanism, we have already established a quality assurance position. 20% of all decisions being made in the entitlement unit before being referred into the case management arena will be reviewed by a quality assurance individual. As we are building the new organization model we are building in quality assurance mechanisms and ideally we want to build it in the front end. That is the intent with having more mentoring and more support. The entitlement officers are just beginning a new approach where they are self-assessing on a form that they have just created. They are assessing their own quality of adjudication and the form is being reviewed with the assurance people. From our view of the case management initiative the single biggest quality assurance mechanism will be the team meeting. The manager has the ability to see who is on top and to see who is a little lax in the approach taken in return to work planning. Their peers are also seen where there is some slippage in the quality management of things.

 

Q: Practice directive gives managers a duty to ensure that decisions of officers are consistent with the act, published policy and based on proper evidence. A lot of decisions of officers in claim matters are appealed to the Review Board, correct?

A: Yes

 

Q: You have given us a statistic about the Review Board upheld number so the reverse of that number would be the allowed. So it is saying, in the Review Board’s opinion the adjudicator made an error either on weighing the evidence, applying the policy or the Act.

A: It may not be an error. There may be additional information presented. Imagine a decision where you have an appeal of a decision where you have no right to representation. The Board decision maker is not in the appeal process so you make a decision and it goes off to appeal and no one asks you for your reasoning as to why you made that decision. The whole issue gets re-adjudicated by three people or one person at the review board who doesn’t make a decision about whether you weighed the evidence properly or whether you followed appropriate policy or process. They really adjudicate the issue based on his or her view of that particular evidence. If you put this into another venue like the court system, imagine having your case heard without the right to be represented and that is what happens at the Review Board. It is small wonder that many decisions are re-adjudicated in a different way.

 

Q: That can happen in the court system where a case gets passed on from one judge to another judge and you end up with another decision sometimes. In my view errors are going to happen and that is why you have the appeals system. Hopefully if the appeal system is working well you will see less appeals as you move higher up in the system and hopefully as time goes by less appeals all together, less allows and away we go. What I see as one aspect of quality assurance is that it can catch those errors and keep it out of the appeal system if we can. I am trying to explore whether or not that is happening internally. If errors are being caught what happens? Is it being communicated, do we know that it is happening, are decisions being changed on your own motion or is it something that we’ll never know about or it is not happening all together?

A: I would suggest that errors are being caught and there are reconsiderations as a result of discussion between either workers and employers and managers relative to a specific issue they may with a claim. However, I think that when you read the administrative inventory it placed very little value on that process because it was almost an automatic this is my 6th step in the appeal process so I should try this one first and then I should try the Review Board, then the Appeal Division and then the Medical Review Panel.

 

Q: I understand and that is why I am not asking any questions about the bottom part where it is initiated by a party. I am just looking purely at the quality control system that the Board is or says it is putting in itself regardless of anyone comes to the manager. You accept that there is a duty on the Board itself to monitor what the adjudicators are doing and that responsibility is being placed the on managers.

A: Or as Mr. Munroe explained, a quality assurance person who evaluates a random percentage of decision making at each stage of the process and that is what we have built into the new model.

 

Q: What happens when they find an error and how do we outside the system know that is happening?

A: You would get a reconsideration and presumably we would get a letter to the worker and a letter to the employer conveying the reconsideration.

 

Q: Is there any sort of information within the Board trying to assess how this or the system you are going to is actually working on quality control – how many errors we are catching and steps taken when we do that?

A: We don’t’ have any way of tracking complaints that come into the system of any variety through the managers or any other means. We do work closely with the ombudsman, we review all Review Board decisions and Mr. Pinto is present at case conferencing sessions where issues of errors in policy or processes are discussed with staff.

 

Q: I want to talk about accountability. Do you have a definition for accountability?

A: Within our 2 divisions we have worked with the Reiberg/Levy group, in particular, to involve staff, managers, directors and myself in developing key performance indicators and what we believe to be accountability within the system. We have data now that I think is better than the Board has ever had with respect to those key performance indicators. We report those indicators back to staff and with every decision letter we send back a card and ask the worker or employer to tell us how we did. Of all the decision letters that go out, 20% are returned and 80% are positive. There is a requirement that the manager respond to any card that has a negative response and figure out what the problem was with the way that the worker or employer viewed that service and how can we improve that. I think we have built in accountability and continuous improvement within the system through that mechanism. In addition you saw the client satisfaction surveying that has taken place, particularly with the injured worker community. On all new initiatives we intend to build in the client satisfaction surveying of both employers and workers in the system.

 

Q: I take that answer as accountability from the system towards the stakeholders primarily. Is there an accountability system in place internally of staff towards other people – managers, directors, etc.? I know that there are certainly terms of reference between the panel themselves and senior positions that sets out accountability. It sets out what is expected, roles responsibilities, what will be measured and it sets out evaluation process. Are those types of accountabilities built into the human resource side for want of a better description?

A: Well flowing from the strategic plan every division has a business plan and share that with stakeholders and anyone who wishes to see those. That is a compilation of departmental business plans with full accountability around budgeting and targeting with the expectation that we report out by unit. I had a quarterly review with the CEO until I lost him but it was against all of the key performance indicators that I was responsible for in the strategic plan. We have weekly divisional director meetings where we review our performance against key performance indicators. Every quarter I have my managers in and they report out against all their key performance indicators and share best practices with their colleagues. We have accountability down to desk level now where an adjudicator understands what their key performance indicators are – what is their performance against income continuity, what is their performance against timeliness, what is their performance in duration? We have an aged inventory report by desk that shows claims that are zero to 30, 30 to 90 and 90 to 180. We review those, managers review those with staff. Those are the claims that are brought forward to the case conferencing sessions. I think that we have a lot of accountability built into the system.

 

Q: We had a variety of topics that overlapped between yesterday and today. I would like to talk about fraud. When talking about fraud there is a variety of different focuses and I think it is unlawful conduct, improper conduct that we are talking about. The discussion over the week has looked at from the viewpoint of employers, concerns towards employers and we have heard, for example, discussions about suppression of claims under Section 13. We have heard about Section 14 concerns of assessments. We have heard about worker fraud discussion, misrepresentation or fraud with respect to paying benefits. We had a little bit of discussion about WCB staff themselves. We have heard a little bit about WCB staff themselves and we have heard a little bit about suppliers so it’s a broad term and we aren’t trying to focus on any one element. What we are trying to focus on in the employer community is what steps are being taken to deal with this? Mr. Massing said that policy is being considered and that it is in the initial stages. Are you aware of policy developments in that focus with respect to the topic of fraud?

A: I have a divisional controller who is a representative of our divisions on a corporate committee that is looking at strategies with respect to all types of fraud in the organization.

 

Q: What kind of time lines are we talking about?

A: I have had repeated requests from the employer community to deal with this issue. We had a list of about 80 things that we wanted to do and fraud was not on the top 10. I have undertaken to say that we will deal with fraud. I am not interested in what people would like from a political perspective, which is to bang a big drum about fraud and have all the high profile hotlines around fraud. When I looked at this particular issue there are now systemic ways that you can look at patterns of behaviour, patterns of expenditure that allow you to identify fraud much more accurately then by diverting staff time to answering phone calls about things that have nothing to do with fraud but everything to do with a perception. For example, someone is out mowing their lawn when they have a back injury. We tell people to be active until they are ready to return to work. We are working with a software provider, which has a very good product that is used in the credit card fraud business that will allow us to professionally and accurately identify a subset of behaviours that will allow us to target our investigation people.

 

Q: The problem in the employer community is that they hear comments to what you just said. They keep being told it is going to be dealt with. For example, I was told that 2 things happened a couple of years ago that would bring to the Board’s attention that there was a concern around fraud. I understand the Board’s communications department, in 1993 or so, did a survey of workers and employers asking about problems they found in the system. What was a surprising response was that workers put fraud high up on their list. I remember that vaguely yes.

A: Yes

 

Q: Does that sound vaguely right that it was in the top 5 concerns?

A: That sounds vaguely right yes.

 

Q: In 1994 I was told that a study was commissioned from a Doctor Roz Kunan with the Laurier Institute

A: Yes

 

Q: I am told that she looked at the future expectations for the use of the system?

A: We commissioned both Nuella Beck and Roz Kunan to try and give us a sense of what was going to change in the work place, what was happening to jobs and what were some of the issues that the Board should be looking at 10 to 15 years down the road in terms of the types of injuries, they types of issues that the Board should be looking at. That was part of our attempt to get a strategic planning process under way and that would have been the external scan. There was a chapter in that book on moral hazard. That was deemed to be politically incorrect and reissued.

 

Q: That is what I understand happened. There were a lot of copies and it was destroyed other than the few that people had that had that chapter still. And it was reissued.

A: Correct

 

Q: And that book, that chapter on moral hazards, again identified a concern on the fraud area.

A: I am not diminishing the fact that when you have a billion dollars per year in expenditures that we should be exercising due diligence with respect to protecting the assets of the system. I am just saying that when I have 30% of injured workers not getting paid within a reasonable amount of time then I suggest to you that I have a bigger issue to deal with then trying to deal with the 1 or 2 % of potential fraudulent situations within the system.

 

Q: One of the proposals that the employer has raised with the Board is a fraud line or a tip line. Could you explain what the concern would be of implementing something like that? It would have both deterrents and a potential identification recovery factor that would be tied to the general deterrents. What do you think about that?

A: In the jurisdictions that have used fraud lines it has largely been for political benefit. It is something that you see largely in the States, you see posters in every airport saying fraud will get you this and there is a picture of someone looking at you from behind bars. My sense in canvassing other best practice jurisdictions is that you can do that for political gain but you really waste your resources with respect to a fraud line because there are more accurate ways of identifying fraud in the system. There are better ways of allocating your resources to those identified patterns that are abnormal. As I said to the employer community when they come in to see me are you interested in the political issue or are you interested in dealing with fraud. If you are interested in dealing with fraud then we should probably purchase a system that would identify fraudulent patterns of behaviour and then I could apply the resources effectively.

I think that the experience at ICBC and some of the other jurisdictions that we’ve looked at is that you get an awful lot of calls, you waste an awful lot of time and a lot of it is just alleged, exaggerated behaviour or whatever. In the meantime the organized rings of people that are taking millions out of your system go unidentified. I suspect that I will be guided by the panel on this issue because it will be a very contentious issue.

 

Q: You raised ICBC and today Mr. McMillan said that he contacted ICBC a couple of years ago about their fraud line. He was told that they have a secretary who gets 10 or 20 calls per week and they found that it did have some use and brought back $1 million annually. Is that the information you got from ICBC?

A: I gather that since the discussion yesterday we do have some data from ICBC. We heard that they received 6,000 calls over 2 years, 59% of the calls relate to claims fraud and exaggeration and they estimate the savings on this area as $1million plus. I can tell you that in the Board’s investigative unit, without a fraud line, we are recovering a significantly larger amount of money than that.

 

Q: Is that something that we can get our hands on through Mr. Bates?

A: Yes

 

Q: My understanding from listening to Mr. Massing the other day is that if you get a Section 13 suppression concern it will be referred to legal services to investigate the matter.

A: It should be referred to field. The one issue I had which I considered serious was handled by field investigation. That was a forest products company in Northwestern BC.

 

Q: It would go from there up to legal services if there was evidence of concern?

A: It would be referred to legal if we felt we should proceed in that manner yes. In this particular case I asked the CEO and the senior vice-president to attend a meeting at the Board. I consulted with the trade union involved and it was mutually agreed that they would not prosecute, that the claims would all be re-adjudicated and that the employer would undertake to educate their work force relative to this particular issue.

 

Q: Turn to the flip side. I have seen and been involved with cases where there has been concern raised with the Board about workers who have complained of bad backs or whatever and are doing activities that don’t seem to flow from that. The Board will then send out investigative field officers to investigate, correct?

A: Right

 

Q: When you get a report back, or the ones that I have seen, the field investigators do raise a concern. That happens on occasion, correct?

A: Yes

 

Q: I have seen cases where the result ends up being that the adjudicator simply terminates payment. A lot of times the next thing you get is a letter terminating the payment and it basically says that we have evidence that you are now back to pre-injury state or whatever and we are going to terminate effectively now. Are you aware of that?

A: Yes

 

Q: Is there consideration then given that we those matters should be referred to legal services for somebody else to consider?

A: My understanding is that when the field investigation unit – investigator or manager – believes that there is a serious issue that needs to be dealt with they will consult with our legal services department. There is consultation with crown and subject to the advice we get from crown we either proceed to prosecution - that is a separate step – and then we take whatever civil action is appropriate to recover the funds. The first step would be to stop the payments obviously. We have looked at getting a dedicated prosecutor for this particular area.

 

Q: My understanding is that it doesn’t just have to be fraud to entitle the Board to seek recovery – misrepresentation would be another ground, correct?

A: Yes

 

Q: Does the Board do that, look at cases of misrepresentation?

A: Yes, it is an area I have reviewed in my meetings with staff around the province. I think that there is a sense by adjudicators, for whatever reason, in the past we haven’t been as diligent about proceeding in this area. I have assured both the internal and external communities that there will be zero tolerance with respect to fraud in the system and I expect to deal very aggressively with abuse of the system.

 

Q: Is there any sort of statistics or information within the Board on how many cases in year the Board would seek to recover from worker for misrepresentation or fraud?

A: Yes there is a report that comes to me on a monthly basis that shows recoveries made, prosecutions that are proceeding, successful prosecutions. We get a fairly comprehensive report from our field investigation unit.

 

Q: Is there annualized version of that?

A: I believe that it is aggregated and could provide you with a copy.

 

Q: I would appreciate having an annualized version of that.

 

Q: Mr. Munroe I want to look at your presentation under case management, first slide. You say workers, employers and unions are frustrated by and then they set out a whole bunch of Xs. How did the frustrations of workers, employers and unions get presented ? Was it a survey, face to face conversations, a variety of ways?

MUNROE: All of the above and there were focus groups. I guess the surveying techniques we use provided a lot of the information. Focus groups for workers, initially in 95 through Martrend really opened our eyes to concerns that workers wanted to express. Similarly in Prince George and elsewhere we had meetings with the employer representatives.

 

Q: What were their concerns back at the initial adjudication stage. What frustrations did they share?

A: They are captured here in the slide shown.

 

Q: So these apply to employers equally?

A: Yes

 

Q: So lack of input into planning and decision making, lack of communication and lack of response contact were raised by the employer community?

A: Yes

 

Q: You believe that the case management system that you have put into place will try to relieve that frustration?

A: Yes

 

Q: Let me give you some examples of some of the things that employers bring to my attention. Employers fill out Form 7 and put on it a protest. My understanding was that there was policy and practice that the adjudicator was supposed to contact you and say what is the nature of your protest. Is that your understanding?

A: That is our desire on the new model I don’t know how we chose to conduct it previously.

 

Q: The direction that is going to go out to the case managers is make sure that that is done?

A: Maybe I just need to provide some clarification. If we receive a form 7 that is protested typically that sort of thing will go into the entitlement unit as opposed to case management.

 

Q: So entitlement unit will seek input?

A: Correct

 

Q: I have an example of when an employer let me know there was going to be a protest. The adjudicator called and the employer started to explain the protest. The adjudicator said that we will accept the claim so put it in writing anyway and that is what happened. That builds quite a frustration on behalf of the employer saying that I am not going to get heard now so what is the fairness in this. Is that something that employers raised with you?

A: Yes that is exactly the concern that they were expressing and we are trying to deal with that in the new structure.

 

Q: You believe this structure will have a quality control system that will catch that if it continues to happen?

A: We receive into our call centre a form 6 or an 8 and normally the 8 is the first one in from the medical community. We have got extended hours in place now where we are operating 7 to 7. Within 24 hours we are trying to contact the worker and the employer and initiating that discussion and tracking information much more quickly.

 

Q: Even when adjudicators try to listen to employer concerns when the decision letter comes out there is no explanation why their concerns weren’t obviously addressed. Are you trying to correct that?

A: Yes and I think that is the communication process that we talked about earlier and it is captured in this slide. The plain language, the way we communicate between the parties is extremely important and that all parties know the reasons for our decision.

We now have adjudicators assigned to specific employers or specific geographic areas. The intent there is that there is some relationship built between not only the employer but the trade unions and in some cases the worker in that particular work place. We should have a pretty good sense about who we are talking to in that work place because we understand the work that is being done, we’ve seen the plant, we’ve met the key people in the claims management process. All of that should alleviate some of your concerns. Having said that there are some employers who use the protest as a punitive measure against workers in order to ensure that the worker doesn’t get paid on time. Where that is sensed we have what we call a three day rule. You have 3 days to get your information in so that we can consider it and weigh it but we won’t keep a worker and his or her family from getting a pay cheque because you have a punitive policy of protesting every claim. There are some fairly large employers in BC who engage in that kind of claims management.

 

Q: Assuming that you are correct on your perception is the Board still willing to encourage or allow the employer to send in all information after that and will it be weighed by the Board at that point?

A: Absolutely and when new evidence comes in we will reconsider the claim file and re-adjudicate. That is what reconsideration is all about. We may, in fact, accept a claim to do our jobs from an income continuity perspective. If we get information later that shows that perhaps we have made an error then we can reconsider that. That has been a tough sell for our staff who would rather wait longer and make the right decision the first time. In most cases it will be accepted anyway.

 

Q: Mr. Buchhorn, in the slide where you have the team involved in case management I believe prevention was involved. Could you elaborate on that aspect?

A: Our corporate strategy is to provide much more integrated services in future. This is an early attempt to involve the prevention division in a discussion about the serious claims and about causation with a view that in many cases it is an issue that may be dealt with in the work place. E.g. there was a case conferencing session in Prince George where a worker had taken a large rock and beat another worker over the head with it saying that is why you should wear a hard hat. In the old model we would have dealt with that claim. We would not have had a prevention officer at the table who raised a whole bunch of issues around the propriety of that, going into that work place, doing the appropriate things. This model ensures that where there is an opportunity to prevent similar injuries from occurring the prevention officer can then act on that particular issue.

 

Q: You see a real value in having prevention interact with compensation in this way?

A: Absolutely

 

Q: Are there other areas outside this case management that you see usefulness between prevention and other aspects of the Board interaction. E.g. talking about Experience Rating we talk assessment information and you say that you can’t wait to get your hands on that sort of information. I assume that is an important element for prevention also, to be looking at that information for their purposes?

A: Yes, we would like to have in our electronic tool kit for adjudicators not only claims information but assessment information that would allow us to go into a workplace, sit down with an employer and say if you don’t reintegrate this worker into your work place, make the accommodation or whatever the claims reserve will be set aside for this claim will be $284,000. We will also say that if you choose for us to retrain this worker for another industry and another employer that is your choice. That would be an example of having an integrated systems approach where we could sit down and talk, not only about the moral and ethical issues about disability management and return to work but the financial side of that.

 

Q: I am looking particularly at prevention and I will tell you why. The Board has a strategic plan that they are moving forward particularly in your area and the commission has determined, in the first phase, that there should be a separate occupational health and safety act. What the commission held back determining subject to the second phase is where should that responsibility lie. Should it lie with the WCB or with a separate agency? Your chart tweaked me to ask these questions. If you put a prevention officer on case management do you have any opinion you want to share today on the goals that the Board wants to meet and the impact of not having prevention within the Board to do that?

A: There would be a significant loss to not having prevention under the umbrella of the Worker’s Compensation system. We would lose a lot of opportunity for an integrated look at a workplace and to ensure that we could do the very best with all of the resources that we have brought to bare. We see that now in those industries that aren’t covered by our particular act where that friction is there between the prevention division and the regulators that are in those work places. From my perspective and I think it is a fairly widely held perspective within compensation services we see real value in being aligned with the prevention people.

 

Q: You talked about the 8 week review and 13 week review. The reason that you were looking towards the 13 week review with respect to keeping a worker motivated and early intervention was that you didn’t want to distract that process. The purpose of either 8 or 13 week review is to try and better assess the worker’s true earnings for the longer term. Is that correct?

A: Yes it is

 

Q: And for the short term the worker is provided benefits based on his or her earnings at the time of the injury so moving it is going to have a cost implication?

A: Yes

 

Q: What is the cost of moving from an 8 to a 13 week review?

A: I know that work was done and I will provide it.

 

Q: I just wanted to flag the issue and we can talk about it when we discuss the issue on average earnings. Will you have the information then?

A: We will have that first thing Monday.

 

Q: We talked a little bit yesterday about form 6 and that it is not provided to the employer up front. Are you aware of that?

A: Yes that is not the current practice.

 

Q: Do you know why?

A: I know that when we looked at this whole issue we were amazed at the emotion over this whole issue. When I worked in claims management back in the late 70s I know that form 6s were available in most first aid offices and employees filled them out. It was not uncommon to have them attached to the 7 or the 7A and the employer would send it in. Apparently that practice was eliminated and I don’t know why. We have tried to re-institute putting form 6s in physicians’ offices so that workers can fill out the form while they are waiting.

Perhaps you can enlighten me as to why form 6s were so sensitive in the work place?

 

Q: That’s what I am trying to get at. Employers would like to get a copy of form 6 when the Board does. My understanding is that it may be arising from the FIPA – the freedom of information. All I wanted to do is spend a couple of minutes going over the kind of information that is in a form 6. What we heard yesterday from Heather McDonald is that the commissioner of freedom of information came out with a discussion paper, which you know about and it dealt with several recommendations with respect to the WCB. One of them was that the Board should revise its practice of allowing disclosure just for an appealable decision that there should be an actual appeal and you circulate a letter saying that that change has been made. Then the commission didn’t say that the employers should get no information but they used the phrase "need to know."

A: Right

 

Q: The employers feel that we need to know. There is an allegation, there is a claim made, this is the initial documentation that starts this process eventually. That sets out the basic information the employer needs to respond to even at the adjudication level. What we are trying to look at is what on that document, do you believe, to be confidential that the employer wouldn’t already have?

A: I am not sure. Why wouldn’t the employer call the employee and ask them how they are doing, ask about their injury, when they are expecting to return and if there is anything I can do for you?

 

Q: Let’s take the example of an employee who has a disease and may no longer be working for his or her employer but has filed a claim. That was the kind of case where I thought the employer would want information because all the employer gets now is a fax saying we’ve got this application by for a claim of, please send us a form 7. The employer is sitting there wondering what this is.

A: In that situation you would want to know what the claim was for. In a conventional employment relationship I’m not sure that we are building in another step in the bureaucracy by exchanging 6s and doing all of these kinds of things when most of these situations are straight forward. We get all the information we need from the 7 and from the physician’s report. We don’t always require a 6. We usually only require it when there is question of credibility of the evidence that has come to us.

 

Q: What you are saying is that particularly when it is a continuing employment relationship the information on form 6 is information that the employer should know or have anyway. From their own investigation they will find out the witnesses but there should not be anything really confidential on the 6 that the employer doesn’t know anyway?

A: There shouldn’t be no.

 

COMMISSION:

Q: Mr. Buchhorn, we talked about measuring return to work and what the appropriate indicators would be of durable return to work that would enable some kind of measurable progress. Would workers that are deemed able to return to work at a given position be included in measuring the success of return to work overall?

A: They should not be in the way that we want to capture data on the e-file system. We should categorize a deeming as exactly that. I see that as a failure of the system. I think we need to be more aggressive and focused on return to work as being the only acceptable outcome for clients who are motivated.

 

Q: So being deemed return to work is not an appropriate measure of actual return to work?

A: No it should not be.

 

Q: In the area of durability it is my understanding that a 3 month period is the conventionally accepted measurement of a durable return to work.

A: It is out of our rehabilitation programs currently. I don’t think that 3 months is a long enough period and in the program evaluation unit we are looking at ways of measuring durability at the 1 year point because, particularly with the more complex rehabilitation plans and the more complex claims I don’t think that we should be satisfied with 3 month as a durable indicator.

 

Q: Will that measurement be incorporated into the e-file data collection?

A: Theoretically yes but the technique of acquiring that would not be e-file driven. The return to work indicator would be keyed in by the Board officer at such time as there was successful return to work. The durability aspect, whether it be 3, 6, 9, 12 months out would be researched in some form or another – perhaps an Angus-Reid survey or some sort of follow up mechanism - and likely a separate data base would be kept to track that information.

 

Q: That is being worked on currently?

A: It is being worked on out of our evaluation unit but the issue is who should do it. Should we have staff dedicated to making follow-up phone calls 3, 6, 12 months later with the difficulty being that workers move? So we won’t have a complete sample size but we should have statistically significant numbers of surveys done at the one year point to determine whether people are still at work. It won’t be possible for every worker who gets assistance within the system.

 

Q: Will the inquiry be able to distinguish as to cause of loss of work connection?

A: Those are questions we ask now. We ask whether the lack of work is due to the injury or was it some other decision like I opted to leave the work force or I wanted to go on an extended vacation, etc. We do ask what the reason is for the lack of employment.

 

Q: Would that data be gathered from employers or from other sources as well?

A: It is now being gathered from the worker because we have a lot of transient workers. E.g. in construction industry it wouldn’t be appropriate to contact the employer, it would probably be more appropriate to contact the workers.

 

Q: The continuum of care initiatives are designed to deal in large measure with soft tissue disorders. A number of those are already in progress and are being applied, yes?

A: Yes I think that the example we use at the Board is the soft tissue continuum because of the sheer numbers of clients who come in with soft tissue injuries but I think Dr. Graham can speak to the hand program being part of the continuum, the amputee program being part of the continuum for that particular injury type and the ASTD treatment program that we are designing would be a continuum of care for those kinds of injuries. So we typically use the example of soft tissue but I think that what we are trying to effect is a mainstream, evidence based treatment program for every type of injury and assurance that a worker gets into a treatment program at the right time

 

Q: For all of those various ailments that could be involved and in particular with respect to, perhaps, the ASTD and the soft tissue ones is there any kind of evaluation that is currently under way to determine what kinds of impact these program initiatives are having in terms of, for example, secondary injuries or re-openings, those kinds of things? Is there anything in progress to look at how these programs are affecting those kinds of issues?

A: We have not studied that issue yet because early intervention approach to the continuum of care, particularly to soft tissue injuries, is new enough that we have not gone back and researched re-openings. That is an area that we would like to deal with. In fact, this afternoon we had Doctor John Frank, who is with the Ontario Institute of Work and Health address the rehabilitation providers on issues of that nature and how we may capture recidivism issues.

The continuum was set up for soft tissue injuries because there are so many. In the case management model because we deal with complex claims so much of the time and in our experience 40% of our claims have been very complex fractures we find the continuum model extremely valuable. When the time comes to plug these more difficult claims back in for appropriate therapy because there are several different types of therapy in the continuum we can be very specific in the prescription that you write for these people. If it is a very complex situation you pick something that has a multidisciplinary approach to it. So you might have an occupational therapist, a physiotherapist and a psychologist involved in their care while they are in that continuum model. When they come out of that program they should be best suited to return to work at whatever capacity they have.

 

Q: In the continuum of care files being handled outside of the case management project, who oversees that?

A: The process for soft tissue injuries is that we have early intervention staff who asks the worker how they are doing and whether or not there is a plan for the worker to return to work, has the worker been in contact with the worker with respect to return to work, has the worker seen a physician recently to discuss what the clinical care plan is for the injury. And if a list of 8 questions are answered in a certain way then we encourage the worker to see his or her attending physician. We then contact the attending physician and ask if they would consider referring the individual to a treatment program. So it is done on a fairly systematic basis and the attending physician is responsible for making the referral. For the other claims like hands injuries and the ones that immediately go into adjudication then the adjudicator is responsible for making referrals to appropriate treatment programs.

 

Q: There will still be, then, a dedicated claims adjudicator to handle non-case management files but claims files.

A: The business process decision we made was that because of the high success rate of the first phase of the continuum of care – the work conditioning phase - where we are getting about 80% successful return to work that we should triage clients into case management if they fail the work conditioning program. That then allows us to reduce the number of claims going into the case management model so that we end up with 15 to 17% of claims and then we apply that much more intensive process – that you saw in Prince George – to those claims. On the results of the case management model you would see the high number of claims that are resolved through the entitlement area and it says resolved or in the continuum. So it is not until the worker is not deemed fit to return to work out of a work conditioning program that they move into case management because of the sheer numbers. We are talking about 10,0000 – 12,000 workers a year who are referred into work conditioning at this point.

 

Q: That is what I am asking I guess. You’ve got the bulk of these claims not going to case management at all but still involving medical rehabilitation and perhaps vocational rehabilitation decisions and protocols. As I recall from one of the charts it went out from entitlement directly to the continuum of care. Where does it come back into the system?

A: At the point where the worker isn’t fit to return to work after that 6 week treatment program. The reason those people don’t have rehabilitation or real case management is that we are assuming that they will recover and return to their former jobs, in which case rehabilitation isn’t an issue. If they are not fit to return from that program then we believe that they need to be triaged into this interdisciplinary model where we start looking at why the injury is preventing the worker from returning to work. That may be elevating the standard of care to a specialist consultation. It might be an interdisciplinary assessment through an OR program. So there are a variety of choices that can be made. Even in the entitlement unit we have a nurse advisor who oversees staff and clients who move into the first phase of the continuum. So there is some medical supervision in terms of that particular phase of treatment.

 

Q: So it is conceivable then that a number of the unsuccessful continuum of care files that went out from the entitlement officer could also end up in case management?

A: About 20% of them would end up in case management based on our current success rate in the work conditioning phase.

 

Q: We’ve talked about adjudication and a number of key performance indicators to measure performance in that area. How do you measure the actual quality of the decision itself as opposed to how quickly it was made or how productive it was or even how satisfied the client might be, that is not always a measure of quality. How do you measure that other than the allow rate for appeals?

A: Review board indicators are one way. As we indicated in the new model there is the triage officer who evaluates on a random basis the quality of the work. We will do random file reviews as we’ve just completed our clinical review. The case conferencing process, which is really a larger process then the case management process. In the old model it focused on difficult claims. There is a peer process of assistance for adjudicators who may have a difficult claim. We do targeted reviews, systemic reviews, triage officer reviews, etc. We don’t do a good enough job in that area.

We have tried to trade the balance historically and in the new and current model, a balance between trying to ensure that the right steps were taken in arriving at the decision and that policies were followed, practices, etc. But there is a hesitancy in saying there is a right or wrong decision if right steps have been followed. At the end of the day the adjudicator is required and given the authority to make the ultimate decision and the Act said that each case will be decided on its own merits. E.g. there was a case of 3 people and the same car accident. One chose to sue, one wanted to sue but came to the Board to ask whether they could go and they were told that their claim wouldn’t be accepted. The third person’s claim was accepted. We had three different results but in every case the decision of the adjudicator was correct. There were 3 different adjudicators dealing with the case and we have some protections to avoid those multiple situations being handled by different people but in this case it didn’t kick in.

 

Q: You have triage experts assigned to look at review board hearings. Best place in my view to get through your quality assurance programs and to accomplish the continuous training and education that a good quality assurance program has you have to get that at a level significantly close to the field and to possibly where accountability lies first. Yet what you have chosen to do is remove that function at a field level and put it further away with triage experts and quality assurance people. Shouldn’t it be linked back to the field level at perhaps the manager level again? I don’t understand what the manager does.

A: I don’t think that we should make the assumption that the manager isn’t involved. This isn’t widely endorsed by staff but every decision letter that we send out has a level of satisfaction card. Every negative response is reviewed by the manager and, if necessary, discussed with the adjudicator or any other staff member. That is a pretty high level of accountability that a lot of organizations don’t have built into the decision-making process. It may not speak to whether this green book was followed in its entirety. We have to look at technical issues and I don’t want my managers totally immersed in quality issues when they are swamped with planning, direction, control, budgeting, meeting with outside community, managing our client relationships, etc. It makes more sense to have a technical resource, a very proficient adjudicator, that looks at every 5th decision out of the call centre and every 5th decision coming out of entitlement should be looked at by a very competent adjudicator. We have checklists that must be followed, which was not there until very recently.

 

Q: What is the function of the general manager because it seems that reviewing the files for quality decisions should be the primary task?

A: If you have a group of 20 or 25 staff reporting to you and you have to liaise with clients in the community, discuss issues with trade unions and employers around how our service is doing, scheduling staff, replacing staff when there are absences, budgeting issues, hiring, discipline, etc.

 

Q: I think it is a function of us having a different managerial philosophies because I do think that it is the fundamental piece of a job that is more important than the liaison. Once you get the job done right then the liaison part won’t occupy as much of your time.

A: That was what we were accused of as the Board, delivering service the way we thought it should be delivered. So what we have tried to bring to this organization is to go out and talk to the clients and design your delivery system in accordance with the expectations of the community. We could deliver service to the Richmond Hospital unilaterally and say tough that is the way it is and that is what we did for 75 years. We could go out to Richmond Hospital and ask what is lacking and then change our service to you so long as it fits under law and policy. We’ve been asking managers to get out in community, find out what the issues are and then designing the system from the outside in.

When I was commenting on the supervisors and the triage I was being more specific to the call centre where the so called routine claims are being entitled. In our more complex arena in entitlement we have 2 technical managers as well as the triage person who are all very much involved in quality reviews of the more complex entitlement decisions taking place.

 

Q: They are involved with who?

A: They are involved with the board officers making the entitlement decisions.

 

Q: I am trying to understand the accountability chain. Who is responsible to who, who pulls in these technicians and then who is responsible to make sure that that training takes place?

A: That, in fact, is the case.

As the manager the officers and the triage officer report to me. In order to do enough quality reviews the triage officer does this on a random basis fairly consistently throughout the day. They would bring to my attention any particular performance problems with particular people. If there are technical problems then I would get involved and work out a performance plan with that person.

 

Q: You expressed dissatisfaction with your quality assurance program so what do you have in mind?

A: Most of our organization has not made the transition to case management so we have a huge number of claims existing in the system and new claims coming into the traditional adjudication model. I am not satisfied that we are achieving consistency and reliability. We have the occupational diseases area, albeit a small unit, where I think that we have to be concerned with the quality of decision making. We have the disability awards area where I need to be concerned about the quality and consistency of decision making. My point is that we are trying to design quality assurance at the front end of process versus at the back as we previously did.

 

Q: Do you survey the adjudicators on a regular basis with respect to common problems in the field?

A: We have 954 staff in the division not all of whom are adjudicators. We have commenced an annual staff survey that centres around morale and climate but we don’t survey staff on technical concerns or issues. We do have the program that I have discussed. We have case conferencing sessions and issues that are raised from those meetings, if warranted, will be brought to Mr. Pinto and he will pull together a group to figure out how to deal with issue and bring consistency of decision making to the organization.

If your question is around escalation of technical practice kinds of concerns it works on an escalation procedure. In the lower mainland I am able to meet with the managers on a weekly basis. If we think it needs to be taken to bureau then it will be.

 

Q: What is flow of policy from the bottom up?

A: Most of the issues have been identified over the last 20 years but let’s say a new one came up. It will go the managers and sometimes adjudicators will come directly to me. I will decide if it is an issue requiring policy review or if whether it is a matter where we just need to be more consistent in what we are doing. If I feel it is an issue where there is no policy or the policy is getting in the way of process then with Ron’s approval and other directors’ approvals it is sent to the policy bureau. It has to be a meaningful, substantive issue. We can give you a flow chart of the administration side.

 

Q: Yes I would like to see that.

 

Q: You talked about funding at the Board. You sounded like you felt reasonably comfortable with where it is today. Are you comfortable with it?

A: I would like to see reserves in place. We should have fund in place in the event of a natural disaster, which we haven’t taken an account of. We need additional reserves for occupational diseases. I don’t think that we are funded to the extent that we are happy but I believe that the projections we have estimated over the next 5 years will provided us with that level of funding and will help reduce assessment rates over the next 5 years.

 

Q: You talked about what you would like to see on policy. You said that you wold like to see stricter policy guidelines for adjudicators?

A: There are a number of areas where we would like to see clear direction in terms of how the compensation system deals with certain situations. The average earnings situation begs clarity. There will always need to be discretion in the system because every individual and circumstance will be different.

 

Q: Where should policy come from?

A: Policy should come from governance structure if that is the wish of the legislature.

 

Q: You don’t support policy coming from the appeals system?

A: I think policy issues should be identified by the appeals system and where there is a matter of lawfulness about policy I would prefer to see a quick referral process where that issue can referred for clarification. The intent of the current governance model was that by having the appeal commissioner at the governance table there would be an opportunity for the appeal division to influence the governors with respect to policy.

 

Q: Do you think that there should be a time limit from when an issue is raised and identified as a policy problem before the policy is in place?

A: There needs to be a mechanism for the resolution of significant policy issues that is much quicker than our existing process. I am guilty of driving forth more quickly with initiatives than other areas of the Board because I was passionate about providing a better level of service. In the case of regulation review that took 6 years and a couple of attempts. The team that I have here wasn’t prepared to wait 6 years to improve services for injured workers. I probably erred on the side of being too aggressive, too quick in some initiatives but overall you can see that it had a fairly positive impact on key performance indicators.

 

Q: You mentioned the time that it takes for an employer to get claim file – 3 days is about average time. You also mentioned some are as high as 25 and you aren’t satisfied with that?

A: Yes you are right. Three years ago I couldn’t have dealt with the 7s if they had come in any faster. In the claims registration area we would be backlogged for 5 to 7 days in terms of our internal processing capacity. I couldn’t really criticize employers for not sending information when I couldn’t process it anyway. We are now at the point where we register claims same day. We can process claims when they come in within the 3 day limit. The process that we put in place is that from the first form that comes in we give the employers 3 days of leave to provide us with information with which we will make the adjudication decision. Absent any information from the employer we will adjudicate the claim based on the medical and worker information. Other jurisdictions have put in administrative fines but we need direction from Royal Commission here. We can’t keep our processing time if information isn’t made available to us in a timely way. We are trying to make it user friendly for employers to provide us the necessary information and we have negotiated with the BCMA over 2 successive contracts in a reduction of timeliness of their reports to five days. The first form we typically get now is from the doctor and then we then call the employer and give them 3 days. I have a list of employer reporting times and they are no where near 3 days. I have a letter drafted for the CEO of all those organizations asking them to deal with the issue of late reports.

 

Q: When you get a new CEO are you going to write to him because the WCB takes 31 days on average to get a claim to registration?

A: Internally you are saying that we take 31 days? We should be a role model for these kinds of things.

 

STEEVES: Mr. Winter asked whether or not Occupational Safety and Health should be within the same entity as the Board. BC Federation of Labour supports that there should not be a separate statute and that there not be a separate agency for the reasons that Mr. Buchhorn stated.