by employers are
assisted by
employers’
advocates.
Discussion of Key Issues
During meetings with the Department of Post-Secondary Education, Training and Labour, the Panel sensed workers’ advocates were, in addition to their primary responsibilities, often seen to be a resource person for the Department for WHSCC issues.
The job position confirms that being a resource for the Department for WHSCC issues is not part of the Workers’ Advocates mandate, but instead to help injured workers and their families obtain the benefits they are entitled to receive under the New Brunswick Workers'
Compensation Act.
Workers’ advocates can assist the injured worker at no cost, in a number of ways including: determining if there is a problem with a claim that can be resolved through an appeal; helping to prepare an appeal, written or oral; and appearing with the injured worker or their dependent as his or her representative at an appeal hearing.
However, it appears the Workers’ Advocates have largely focused on one aspect of their mandate, that being the representative of an injured worker on appeals. The Independent Review Panel believes that becoming involved earlier in the process could have the effect of reducing appeals, i.e., the Workers’ Advocate, on behalf of an injured worker, could ask for a review of the decision by the regional manager or assist the injured worker in obtaining the evidence for reconsideration.
The Panel understands that injured workers frequently appear at appeals with new evidence previously undisclosed. This suggests that many injured workers are inadequately informed of their rights to a reconsideration based on new evidence arising, which if so informed would eliminate a practice of going through an unnecessary appeals process.
The Independent Review Panel would therefore encourage the Commission to ensure a process is developed that, when a decision is rendered, information about a worker’s right to appeal, as well as a worker’s right to a reconsideration, is clearly articulated in a guideline or form.
The Panel recognizes the importance of the role of the Workers’ Advocates and would encourage them to fulfill all aspects of their mandate, not just representation of injured workers at appeals. The Panel’s recommendations are suggested with the objective of streamlining the appeals process. If accepted, the appeals process should improve, the number of appeals should decrease, and the Workers’ Advocates will have the tools to assist them in fulfilling their wider responsibilities. However, adequate resources need to be maintained.
Although advocates have full access to all Commission files and records that relate to any claim they are reviewing, they must access the files at one of the Commission’s regional offices. This is time consuming and incurs unnecessary travel costs. Access from secure terminals in their offices would expedite this process.
During the Independent Review Panel’s consultations there were some suggestions that advocates, worker and employer, be under the umbrella of respective stakeholder groups. The Panel also heard workers’ advocates should be available at the Workers’ Rehabilitation Centre.
The Advocates program, workers and employers, provides a public service to workers and employers of New Brunswick whether it is to unionized or non-unionized workplaces. They have offices in various locations around the Province. The Independent Review Panel respects the current reporting structure.
The Panel sees the Workers’ Rehabilitation Centre as a place for therapy and medical treatment, not as an advocacy centre, which would be inconsistent with the mission of the Workers’ Rehabilitation Centre.
The Independent Review Panel heard a presentation from the Saint John Labour Community Services that appears to have a successful model in the delivery of services to injured workers. The Panel encourages other communities and/or district labour councils to consider offering such programs to assist with appeals and to provide information on benefits available to injured workers.
During its consultations, the Panel did not hear of any issues specific to the Employers’ Advocates.
Recommendation #56
The Independent Review Panel recommends that the Workers’ Advocates mandate and job description be revisited in light of the Panel’s recommendations.
Recommendation #57
The Independent Review Panel recommends that Workers’ and Employers’ Advocates have electronic access to WHSCC files from secure terminals, not only terminals located in WHSCC regional offices.
Costs
Expenditures for New Brunswick’s Appeals Tribunal have risen slightly since 2002, as shown in the following table.
In 2006, the actual expenditure was $1,242,000 (0.64 percent) of the Commission’s total expenditures of $193,457,000. However, Appeals Tribunal expenses as a percentage of total administration expenses has been relatively consistent since 2002.
Expenditures of New Brunswick’s Appeals Tribunal 2006 2005 2004 2003 2002 AT Expenses (000s) 1,242 1,236 1,212 1,039 1,116 Total Administration Expenses (000s) 33,593 32,184 30,964 30,300 29,158 % of Total Administration Expenses 3.70 3.84 3.91 3.43 3.83
Source: 2006 WHSCC Annual Report, p. 84.
The Commission is required by legislation to reimburse the provincial government for operating costs of workers’ and employers’ advocates. In 2006, the Commission incurred $714,000 for these costs and in 2005 these were $691,000.
Operating and Administration Costs of External Appeals Bodies
Overall costs of external appeals bodies and administration costs per decided appeal depend on a number of factors, namely the number of panel members in the appeals body, the number of cases received in a particular year and the cost of the services provided to appellants. Overall costs and administration costs of external appeals bodies for 2006 are shown in the table below and range from $170,000 in Yukon to $18.4 million in Ontario. In New Brunswick, the Appeals Tribunal cost was $1.242 million. Information was not available for most jurisdictions as to administration costs per decided appeal. Newfoundland and Labrador had the lowest cost at $500 with Manitoba at $5,100 and New Brunswick at $2,226 per decided appeal.
Costs of External Appeals Bodies Overall Costs of External Appeals
Body ($ millions) Administration Costs per decided appeal ($)
AB 8.0 -
BC 16.7 -
MB 1.05 5,100
Overall Costs of External Appeals
Body ($ millions) Administration Costs per decided appeal ($)
NL 0.9 500 NT/NU 0.2 - NS 1.5 - ON 18.4 - PE - - QC 53 1,930 SK N/A N/A YT 0.17 -
Source: Information gathered by the IRP from each jurisdiction through phone conversations or annual reports.
Discussion of Key Issues
During the consultation process the Independent Review Panel was informed that it had been a number of years since remuneration for Appeals Tribunal members had been reviewed. Currently, an Appeals Tribunal Vice-chair in New Brunswick is paid a per diem rate of $238.50 with Appeals Tribunal members receiving $200 per day. In order to obtain quality candidates, it is important that the per diems be competitive and should be reviewed on a regular basis.
Recommendation #58
The Independent Review Panel recommends remuneration of the Appeals Tribunal positions be regularly reviewed to ensure per diem rates are competitive.
Mandate Question Overview
The Independent Review Panel was asked to assess how well the New Brunswick workplace health, safety and compensation appeals system compares in terms of processes, cost, and efficiency.
New Brunswick’s Appeals Tribunal is a unique hybrid model. The Independent Review Panel considers the current structure appropriate and believes it important to maintain the independence of the Appeals Tribunal and members. It is the process of appeals which needs to be changed.
There currently is no preliminary review mechanism for decisions under the Workers’ Compensation Act. The Panel believes this has contributed to what it sees as a considerable backlog in the number of appeals to be heard, resulting in
unacceptable time delays and the Panel’s consequent recommendation for a preliminary review process.
The thrust of the Independent Review Panel’s recommendations is to create mechanisms intended to decrease the number of appeals and streamline the appeals processes both for the appellants and advocates.
The Panel is satisfied that the recommendations to modify the appeals processes, establish a new review mechanism, and enhance involvement of the Workers’ Advocates at an earlier stage, will assist with establishing a more efficient and timely appeals process.
As previously outlined, overall costs of external appeals bodies and administration costs per decided appeal depend on a number of factors. This, taken with the hybrid structure of New Brunswick’s appeal system makes it difficult to determine how well we compare cost-wise to other Canadian jurisdictions.