Debates of May 31, 2006 (day 2)

Mahsi, Mr. Speaker. My questions this afternoon are for Mr. Dent, the Minister responsible for the Workers’ Compensation Board of the NWT and Nunavut, and it relates to the efforts by an injured worker to have his appeal heard before a freshly constituted board. Mr. Speaker, it’s rare that an injured worker’s appeal makes its way all the way to the Supreme Court. The onus is almost always on the worker to shoulder the expense, and the time, and the burden, and the energy that’s required to get it this way, and I think it’s to Mr. Valic’s credit that he has persisted over the years to challenge and win these judgments. Now he is still a long, long way from actually receiving any tangible result. He still actually has, for instance, to get a favourable decision from this new tribunal and that is what I want to focus on, Mr. Speaker. So the question that I have now, 19 years after his accident, five years after he started action to appeal decisions and now six months after a Supreme Court ruling, Mr. Valic still waits to be heard. Why has it taken so long to assemble the fresh panel of tribunal adjudicators to rehear Mr. Valic’s case, Mr. Speaker?

Thank you, Mr. Braden. The honourable Minister responsible for the Workers’ Compensation Board, Mr. Dent.

Return To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Thank you, Mr. Speaker. The reason is because Mr. Valic and his solicitor have determined that the public interest representative on the panel, the appeals tribunal right now, who would be available to hear the case is not suitable. Their argument is that she was involved in the case. I have been assured by her that she has never even read the file, but they have decided that they wanted a new person. So in order to achieve that, we’ve had to advertise for additional members of the appeals tribunal. That’s been done and, as the Member noted in his statement today, it is the closing day for applications. I will review those applications very quickly and move to have somebody appointed as quickly as possible. Thank you.

Thank you, Mr. Dent. Supplementary, Mr. Braden.

Supplementary To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Mr. Speaker, I appreciate the answer, but it is quite consistent with the kind of responses we’ve had from the WCB on such a range of issues. There is never any issue of whether or not there may be some fault or some lack of consideration or process at the WCB. The ability of the WCB to put a fresh panel forward is really what’s at question here. So we’re now coming up to six months, Mr. Speaker, for this process to grind its way along. Now I’m hopeful that qualified tribunal members will come forward from this latest process, but I anticipate that there’s going to be training and orientation required. So when may Mr. Valic expect to actually have his day before this fresh appeal tribunal, Mr. Speaker?

Thank you, Mr. Braden. Mr. Dent.

Further Return To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Thank you, Mr. Speaker. It had been the hope of the appeals tribunal that they could have heard this case much more quickly, and it was the opinion of the tribunal and their legal counsel that they could put together a freshly constituted appeals tribunal to hear this case right away when the decision was made to hear it. However, since Mr. Valic and his counsel have rejected one of the members, we are working with all due haste to try and put one together. I can’t say exactly when that hearing will be able to be held, but I can assure the Member that the appeals tribunal will work with Mr. Valic’s counsel to try and schedule as soon as mutually possible, as soon as a mutually acceptable date can be found. Thank you.

Thank you, Mr. Dent. Supplementary, Mr. Braden.

Supplementary To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Mr. Speaker, to the ruling delivered on December 14th last year by Justice Schuler of the NWT Supreme Court, there were two significant areas here in which the WCB were found at fault. One related to the denial of natural justice to this injured worker and the other to a violation of the Charter of Rights and Freedoms. These are significant pieces of law and policy and administration. Significant, Mr. Speaker. I would like to know what steps are being taken by the WCB to hold to account those officers who allowed these positions to be taken and persisted in endorsing them and actually drove this worker all the way to the Supreme Court to actually have it found that these positions were unjust. How are those officers being held to account, Mr. Speaker?

Thank you, Mr. Braden. Mr. Dent.

Further Return To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Thank you, Mr. Speaker. Mr. Speaker, I think it’s important to note that the WCB recognizes chronic pain syndrome as a compensable injury. There was some difference of opinion as to whether or not it fits in the disability tables, but the issue is one of whether or not compensation is being paid. The WCB says, or will accept chronic pain as a compensable injury. Each case is dealt with on an individual basis and it doesn’t fit into a standard table as some of the other injuries do; for instance, the loss of a thumb or the loss of a foot in which there is a standard sort of response. Each case is being examined on its own and sometimes the pension could be allowed. In fact, a pension is often allowed and treatment is typically provided. So there has not been any individual wrongdoing here in these cases. This is a situation where the judge was not satisfied with the manner in which the appeals tribunal and the Workers’ Compensation Board handled the case and has directed that it be looked at again, and that is exactly what both the WCB and the AT will do. Thank you, Mr. Speaker.

Thank you, Mr. Dent. Your final supplementary, Mr. Braden.

Supplementary To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Thank you, Mr. Speaker. I’m not a lawyer and I’m not going to attempt to turn the Chamber into a courtroom, but the point was the decisions and the policy and the practice undertaken by the WCB as it relates to Mr. Valic were a violation of the Charter. It found that the way in which it treated Mr. Valic and others who have come forward with chronic pain syndrome was different than the way they were treated from workers with other conventional kinds of injuries, if you will, Mr. Speaker. So that is the point where the WCB was found at fault. That was the point that the officers and the people or the experts of the WCB we rely on, who injured workers rely on to get fair hearings and fair decisions were let down. So this is not some trivial area of misinterpretation. This is a serious, a very serious impact on these workers. What is being done to hold the officers of the WCB to account for this type of action, Mr. Speaker?

Thank you, Mr. Braden. Mr. Dent.

Further Return To Question 12-15(5): WCB Appeals Tribunal Rehearing For Ivan Valic

Thank you, Mr. Speaker. The judge did not say that anybody wilfully did something that was not acceptable. The judge said that she found that they had made the wrong decision and that, in her opinion, it needed to be re-examined. So this is not a situation, if you care to look at the judgment, that there was any indication that an individual was found to have done anything wrong. So, Mr. Speaker, in terms of who is going to be held to account, the WCB has had the ruling of the court, it's looked at it, the Governance Council has agreed not to appeal the case, the appeals tribunal is prepared to rehear the case as soon as a freshly constituted panel can be put in place and, as the judge said, it might not be realistic to expect it to happen within 60 days and that has proven to be the case. But the appeals tribunal is moving as quickly as possible to deal with the issues. The Governance Council has also taken the opportunity to, or taken the occasion to review its policy on chronic pain. They have undertaken that review and will finalize that review at their next formal meeting and we’ll have, I suspect, a new policy in place. But I think it’s important to understand that with or without that policy, chronic pain is seen as a compensable injury and each case is looked at on an individual basis. Thank you.