Debates of August 21, 2007 (day 14)

Thank you, Ms. Lee. Mr. Doyle.

The answer to that would be it would still have to contribute to the injury, or contribute to the disease, death or injury in a material way. It can't be something that is just trivial in its relationship to the injury.

Thank you, Mr. Doyle. Ms. Lee.

Right. Trivial. I never use the word trivial. But let me try this again because I'd like to get more clarification. Say if somebody has carpel tunnel syndrome, as an example, and say if he could prove that…I mean I think from a layperson's point of view -- you don't have to be a doctor -- as I understand it, carpel tunnel syndrome could come from repeated use of a computer keyboard. But in modern days, a lot of us use computer keyboards at work and at home. Say if it was under proof of…I mean if the standard proof was something like dominant cause or something else, you would have to prove, not prove, but the fact that you might have been using keyboards at home might affect the fact that your injury happened at work because, you know, you're using computers in both places. How I understand it, from a layperson's view, is the fact that you're using computers at work should help you to determine that that injury, carpel tunnel syndrome, if you could prove that it's from repeated use of a keyboard, that it happened at work. I'm trying to simplify how I understand this. Is that a correct…that one should be able to say that carpel tunnel syndrome happened from work because of repeated use of keyboards at work, and would this provision make it easier to prove that?

Thank you, Ms. Lee. Mr. Wright.

I think the Member is correct, that if the work contributes to the injury, then that would be a casual link that might give rise to a claim. But I think what this section is intending to deal with is to deal with a situation where the work component of the injury is small and a worker might perhaps argue that working at a computer is not a very significant portion of his or her injury in your example, that the dominant cause had nothing to do with the work they're doing, then this section would say that that would not be contributing cause. In other words, the work part of the injury has to be significant, but it's also saying that it's not the only cause. There could be some non-work cause, some work cause. It has to be significant but it can't be trivial. If you have a worker that, say, has worked one day in his or her life on the computer and has a lot of time working at home, then that would be a trivial cause. After that, it's really a question of fact. I hope that helps.

Thank you very much, Mr. Wright. Ms. Lee.

I realize that we may be…I guess the lawyers here might want to err on the side of caution and we don't want to be too definitive in interpreting this clause. But I think Mr. Wright has basically said what I was looking for, but I'm just going to confirm this again in my remaining seconds. Am I right in thinking that if, say, this clause requires the workplace to be a dominant clause, dominant factor of the injury or the disease, your burden of proof would have been lot higher than what we have here, which is a little lower but higher than trivial cause? I could look in that step-by-step way. This clause sort of goes to the middle or maybe a little lesser burden than the middle, which was agreed to by all stakeholders. Thank you.

Thank you, Ms. Lee. Mr. Wright.

I'm agreeing with Ms. Lee.

Thank you, Mr. Wright. Thank you, committee. We are on clause 13, page 25. Agreed?

Agreed.

Thank you, committee. Page 26, clause 14, clause 15, clause 16, and clause 17.

Agreed.

Page 27, clause 18, clause 19, clause 20, clause 21.

Agreed.

Page 28, clause 22, clause 23.

Agreed.

Thank you. Page 29, clause 24, clause 25 and clause 26. Ms. Lee.

Thank you, Mr. Chairman. I just need some assistance here. I have a question on the section on conflicting medical opinion and we're going by lumps of clauses, so could I just get some advice as to when I could raise that question? Thank you.

Thank you, Ms. Lee. I'm calling each clause on each page. If you have a specific question to a clause, just mention the clause that I've just called and that would be sufficient. Have you got a question on a specific clause on page 29? Clause 24, 25 and 26.

Agreed.

Okay. Thank you, Ms. Lee. Page 30, clause 27. Ms. Lee.

Thank you. Very conveniently, section 27 deals with the question I had in mind and it's in regards to conflicting medical opinion situations. I'd like to ask either the Minister or whoever on the panel, Mr. Wright, just to explain to the people out there how does this section address situations of conflicting medical opinions.

Thank you, Ms. Lee. Mr. Doyle.

Thank you, Mr. Chair. The way that it addresses conflicting medical opinions is if there's a disagreement between the medical advisor and the health care provider, they can seek the opinion of another medical professional who specializes in the area, and that decision of that professional is binding on all parties.

Thank you, Mr. Doyle. Ms. Lee.

Thank you. What sort of input do the workers and his or her medical advisor or health care provider have in choosing who that third person, opinion, might be?

Thank you, Ms. Lee. Mr. Doyle.

I'm sorry; I didn't hear the question.

Thank you, Mr. Doyle. For a response, I'll go to Mr. Wright.

Subsection (4) provides that the Governance Council can establish a policy that deals with things like how the medical professional is selected and submissions that the medical advisor of the board and the worker's medical person have to the third medical opinion, so that it requires that the Governance Council establish a policy to deal with that issue.

Thank you very much, Mr. Wright. Ms. Lee.

Thank you. Before I move to subsection (4), I have a question on subsection (3), which speaks to the capacity under this clause to go to a third opinion. It says in there in 27(3) that this resolution is binding, so whatever the third opinion is, it’s binding to both parties, subject to new medical evidence. So I have a question about what that new medical evidence means exactly, because it could happen in either case. You could have binding resolution on a conflicting medical opinion where both the medical advisor, WCB and the worker agree to a…Let me just ask first whether they have to agree on who the third party is. Then they get a decision and it could be in favour of the worker or not. Say the decision is in favour of the worker, found the claim to be valid or whatever, but he says it’s subject to new medical evidence. What does that mean? Could a decision be overturned on the new medical evidence and what is the standard of that new medical evidence?

Thank you, Ms. Lee. Mr. Wright.

Thank you. On the first issue, which was how the medical person is selected, the policy has to deal with that. That is not addressed specifically in the section. Obviously, there may be a number of ways that could be done. As far as the opening words of 27(3) are concerned, I think what that is saying is that the third opinion is binding but it’s always possible that there may be new medical evidence. For example, there may be new technology available. So when the third opinion comes out, perhaps in the meantime there is some new technological means that can give a definitive opinion that is otherwise questionable, whether taking it from a question of opinion to something definitive. So that’s saying that if there is some such evidence that’s available, then that would put precedence over the third opinion.

Thank you, Mr. Wright. Ms. Lee.

Thank you. I want to reserve my question about subsection (4) again, but just following up on what Mr. Wright said, what assurance do workers have in listening to this explanation of subsection (3) that the new medical evidence will only be about something that was unknown, something totally new that would change your resolution, but it would not be another third opinion that would just reverse your decision? Do you know what I mean? That’s what the workers are concerned about…or maybe WCB side, too. That there is some standard on what that new medical evidence should be that would put the question into new light, that it would not be…Could I just get the industry standard on that? Thank you.

Thank you, Ms. Lee. Mr. Aitken.

I would have thought that the new medical evidence would be, as Mr. Wright described, something that resulted in a change in technology or a change in how it’s evaluated, but I would also think it would be medical evidence relating to the person themselves, some change to their medical condition that can be traced back to the workplace injury or disease. So there has been some change in their medical status that has to be reconsidered. Thank you.

Thank you, Mr. Aitken. Ms. Lee.

Thank you. I take that to mean that somebody…So if there is no condition change on the person…Oh dear, this is so hard. If somebody had a back injury and one doctor says no, it’s not caused by work and another doctor said yes, it’s caused by work, the WCB medical advisor says we don’t think it’s caused from work. Another doctor says you have an injury and it’s caused by work and it should be compensable. You go to a third party and the third party agrees with the worker’s side. No change in condition, no medical opinion or anything. There is no change in the worker’s condition, but you cannot use a third opinion that agrees with the workers’ compensation side to change that decision. I think that’s what the people are concerned about. What assurances can be provided that that is not going to happen?

Thank you, Ms. Lee. Mr. Wright.

The section says “new medical evidence being acquired.” So it’s not like you are bringing in a fourth doctor because you don’t like the third doctor’s opinion until you keep stacking opinions until you get one you like. You have a new test or something new has come up that is new that three doctors who have looked at it already haven’t seen. It’s a new piece of evidence that might cause them to change the way they look at things. It’s not a third or fourth or fifth or sixth opinion.

Thank you, Mr. Wright. Ms. Lee.

Thank you. I do understand that and I approve that interpretation. I think that’s what we meant to do. I think it’s the difference between medical opinion and medical evidence. I just wanted to make sure that we put it on record, so that people out there could feel comfort in how this legislation will be interpreted. In the remaining seconds, I just want to ask the panel on subsection (4). It states there that much of how this will be implemented will be written out in the policies and procedures. First of all, would the Minister and Governance Council be willing to set up some sort of stakeholders’ consultation group to see how this policy will be written? It’s really hard to ask what is going to be in that policy because I don’t think anybody in that panel will have a say on that in the level of detail that I like to look at. I would like to know, for example, would the injured worker have a say on who the third medical opinion person will be? How can we be assured that it’s somebody who is neutral or somebody who is going to be seen to be objective, somebody who could have that level of distance and objectivity? That’s a big concern, whether justified or not. The workers want to make sure that when they go to a third party binding resolution process that they will get a full, fair hearing. So any information the Minister could give me to assure me, just any information on this section would be helpful. Thank you.

Thank you, Ms. Lee. Mr. Minister.

Thank you, Mr. Chairman. The present practice of the board with regard to any revised policy or introducing the new policy, they do err on the side of the workers and other partners in this where they do run it by them before they make a final draft. So they do run it through the different organizations, the workers, employers and vice versa. I think it’s important that we stress that we put on consultation and ensure that we are transparent. That aspect with regard to establishing that policy will be done through that process which is being used today. Thank you.

Thank you, Minister Krutko. Clause 27, committee? Ms. Lee.

Can I ask the Minister to commit to…Could I ask the Minister whether there’s any intention under this legislation to give workers a chance to have a say on who that third medical opinion will be?