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editor
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 Posted: Mon Jan 05, 2009 4:22 pm Post subject: Applying for Disability Benefits Worldwide - HEADS UP! |
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Applying for disability benefits - Does anyone have a duty to protect the sick or injured insured claimant or even tell you the truth about how your benefits scheme really works?
How to prepare a claim for disability benefits/compensation:
What to know about legal duties and obligations to sick or injured worker
| Quote: | Localize THIS:
Legal theory and principles governing insurance are rarely original - frighteningly so, in our view. Simply replace proper nouns according to regional boundaries and you'll get a snapshot of the rules in your jurisdiction. Legal tests such as the general acceptance test for admissibility of expert evidence, for example, are often similarly applicable. If you need help, e-mail editor@bcdisabilities.com. We live to serve.
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What do we mean by disability insurance?
| Quote: | Disability insurance can be available through group insurance, or through the purchase of an individual policy. Usually, group coverage is provided through employment. The employer purchases a policy of insurance with the employees as beneficiaries. The employer or the employee, or both, pay the premiums and benefits are paid to an employee who becomes disabled. Individual coverage is typically purchased by an individual, and is specific to an individual.
There is also disability insurance available to employees as part of a collective agreement. These plans are not insurance policies, and are usually operated through a trust established by the employer and administered by a third party trustee. These plans are not subject to the Insurance Act, and coverage disputes are governed by labor relations legislation. ... (From Disability Insurance Claims, Policy, by Alison L. Murray of Dickson Murray, Continuing Legal Education Society of B.C., Dec. 10/99, p. 1.1.01. See also the excellent Plaintiff's Case chapter 4 by Brad Garside of Paine Edmonds and Faith E. Hayman of Murphy Battista from the same seminar.) |
Atty said, 'DON'T sign any waivers!'
Any insurer duty to fully explain benefits and claim procedures?
Duty Rating: Follow atty's advice and DON'T sign! (see below) And yes, some duty but it's clouded by competing interests.
| Quote: | | The Canadian Life and Health Insurance OmbudService (CLHIO) assists consumers with enquiries, concerns and complaints about life and health insurance products and services. Our objective is to provide fair and prompt resolution of problems. The CLHIO is an independent service that is overseen by a Board of Directors, the majority of whom have no ties with the life and health insurance industry. We belong to the Financial Services OmbudsNetwork (FSON), a national dispute-resolution system. We are sponsored by life and health insurance companies that do business in Canada. |
Infer from the creation of so many busy ombudservices that insurance claims are hotly contested. Insured would be well advised to verify ALL information about benefits first with insurer and again with atty. (see below)
How about the medical duty to the insured seeking diagnosis and treatment?
Duty Rating: Changeable depending on the purpose of opinion sought and fraught in any case with, in our view, irreconcilable ethical conflicts.
See Legal Liability of Physicians, which offers docs several guidelines. Note especially:
| Quote: | Before giving an opinion on an employee's fitness to work, a physician should be sure that the physician has accurate information about the requirements of the employee's job. ...
Physicians should ensure that they have received the employee's consent to provide information to the employer or its insurer. Physicians should take care not to disclose more information than is covered by the employee's consent or is required by the employer's request. |
Insured, then, has to communicate clearly using plenty of descriptive verbs to ensure doc is fully apprised of condition as well as the nature and extent of employment duties. See the Persons With Disabilities (PWD) physicians' checklist for suggested terms of art. Personal injury/employment/labor law attys will also be familiar medical reports. Ask for guidance.
Note , too, that insured has some discretion regarding consent at various stages of examination and again in the provision of medical records. When, how much and how to exercise it are important questions for atty (see below).
Note, too, the conflict in professional standards, which unreasonably, in our view, often require B.C. general practitioners to have more expertise than Specialists:
| Quote: | I would like to see a specialist. How do I arrange this?
In British Columbia, you need to have a referral from a family physician or general practitioner or another physician involved in your care to see a specialist. The family physician decides, based on his/her medical knowledge, if the referral is necessary. Similarly, if he/she feels that a second opinion is unnecessary, he/she is not obliged to provide that referral. |
Such a broad notion of 'doctor shopping' clearly prejudices the claims of insureds with long-term illnesses such as CFS/ME and Lyme Disease, for example, that are often difficult to diagnose and treat. Insured, in our experience, is often more knowledgeable about the condition than family doc AND family doc's roster of specialists, who may actually harm insured by failing to diagnose, treat and even acknowledge the presence of illness.
Broad discretion by labor panels to draw conclusions not founded on common law rules of evidence increases prejudice against claimants already inherent in the claims adjudication process, in our view. Ultimately, it means panelists are entitled to overrule a comprehensive medical report by a fully qualified expert in favor of evidence that might not even be admissible in court, and once they do, the decision will be difficult if not impossible to reverse! Not surprisingly, perhaps, many charities and advocacy groups, including personal injury attys, often seek expert medical advice to help educate the community and assist clients. Consulting these groups for both medical and legal information as early as possible might prevent or at least minimize 'doctor shopping' prejudice against insured.
On a separate but equally important note, see how the doctor-patient relationship changes in the Independent Medical Examination. Note the ethical conflicts this examination poses with the doctors' Code of Ethics, whose first Fundamental Principle is to "Consider first the well-being of the patient." See especially the second guideline:
| Quote: | | Explain how this examination differs from an ordinary doctor/patient interaction. Explain that its purpose is to determine the health status and functional status at the time of the examination. It is not for discussion of treatment. Confirm that treatment advice will not be given. |
Inferred advice to claimants from Working with a Third Party:
| Quote: | What is sent to a third party when I have consented to that?
If the consent you sign is global (as most are), the physician is obliged to send the entire file (with a few exceptions). If you wish to maintain confidentiality of sensitive and private information irrelevant to the third party, you should be careful to specify this in your consent. |
Again, worker's discretion to consent to these examinations is a legal matter for atty PRE-EXAMINATION (see below), but see also at the bottom of the page What happens if I don't attend insurer's assessment/independent medical examination?
Any union obligations toward a worker claiming benefits?
Duty Rating: Nothing that might be interpreted as advocacy!
Union duty of fair representation:
| Quote: | The "duty of fair representation" as stated in Section 12 of the Code provides that a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith in representing or referring a person to employment. These words have been interpreted in a number of cases by the Labour Relations Board. This Guideline provides some questions and answers that will assist you in understanding what the terms arbitrary, discriminatory and bad faith mean in the context of a union's role in representing employees in a bargaining unit or referring them for employment. (From the equally unhelpful B.C. Labor Relations Board (B.C. LRB) website Aug. 25/08)
For an overview of general principles, see Alberta Labor Board Bulletin #18 THE DUTY OF FAIR REPRESENTATION, March 13/08. |
| Quote: | A word about unions: It's no secret that many workers' funds from which benefits are drawn are in trouble today. We're living longer and retiring sooner, for one thing. We'll have more about this shortly. Please check back soon for updates! In the meantime, the prudent union worker inquires fully into the collective kitty - whether the fund is sufficient to meet its obligations, how much is currently paid out each month to claimants, how many new claims are anticipated and whether fund managers are doing their job effectively. Demand nothing less than Sarbanes-Oxley accountability. If a poorly managed fund or some other internal crisis has meant secret decisions to raise the bar on certain or all benefits claims, both workers and government forced to pick up the slack NEED TO KNOW.
More on depleted benefits funds and a few U.S. proposals to fix the problem.
More on Canada's nurses and the union scandal in B.C. that may be the canary in the coal mine.
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What about the B.C. gov't's Workers' Advisers Office?
Duty Rating: Dangerous! Duty is unclear; information misleading. Its 76-page Worker's Information Kit claims it "explains the law in general" independent of the WCB, but the opening waiver at p. 1 that kit "is not intended to give legal advice" fails to adequately warn visitor/worker that legal representation from the OUTSET of an insurance claim is not only merely advisable but preferred!
| Quote: | Who can help?
Your trade union
If you are a member of a trade union, there may be people in the union who can help you with your review case. Call your union and find out.
Workers' Advisers
The Workers' Advisers Office can give you advice and help. A Workers' Adviser may also be able to represent you. This service is free.
Do I need a lawyer?
You do not require a lawyer for a review. If you think that you would like one, contact the Lawyer Referral Service. Whether you win or lose your review case, WCB policy is not to pay legal fees. (From Worker's Information Kit, p. 12) |
Again, as per duty Rating, the information here is misleading, unhelpful and occasionally just plain wrong! ANYONE seeking to advise another of his/her legal rights regarding a disability insurance claim - how to act for the best to take full advantage of benefits to which you're entitled - should have a CLEAR legal obligation to represent first and foremost worker's interest. No one listed here can make such a claim. Tempting visitors to rely on this mysterious, dubiously motivated public body is dangerous, in our view.
More dangerous 'not legal advice' in the kit:
| Quote: | How will my review be considered and decided?
In almost every case, a Read and Review process will decide your review. Very rarely, the Review Officer may decide to schedule an oral hearing, where you can appear in person to give evidence. It is recognized that there may be strong reasons for holding an oral hearing in a specific case, such as where:
- Credibility is an important issue, or
- An oral hearing is required to determine significant facts in dispute. ...
... Your employer will be invited to participate.
... You may wish to call your union representative or the Workers' Advisers Office for help with preparing your written submission. ... (-- pgs. 12-13) |
Take ONLY from the above an assumption that the odds are stacked heavily against the claimant, odds that will most likely require considerable legal expertise to overcome. (see below)
Is there anything in that so-called Worker's Information Kit I can take to the bank?
Doodley-squat!
If insurer, union, labor board, Workers' Advisers Office and the medical establishment fail me, will the courts give me justice?
Duty Rating: Despite Canada's loftily-worded Charter of Rights and Freedoms, probably not. Courts presume you've had due process via the separate administrative tribunal system.
See Gendron v. Supply and services union of the public service alliance of canada, local 50057, [1990] 1 S.C.R. 129:
| Quote: | The duty placed on unions, as exclusive bargaining agents, to fairly represent the employees in their unit has its origins in American case law dealing with employee allegations of discriminatory practices engaged in by unions. That such a duty exists in Canada, independent of statutory enactment, was recognized by this Court in Canadian Merchant Service Guild v. Gagnon.
Unless the statute contains words that expressly or by necessary implication oust the common law duty or remedy, one has a choice of remedies. Parliament has codified the common law duty of fair representation within a larger comprehensive legislative scheme and has provided a new and superior method of remedying a breach. The common law duty of fair representation is neither necessary nor appropriate in circumstances where the statutory duty applies. Therefore, while the Code does not expressly oust the common law duty, it does so by necessary implication in most situations where the terms of the statute apply. A different result may obtain in situations where the statute is silent, or by its terms does not apply, and where it is not clear that the statute exclusively covers the breach, such as in the context of human rights violations. Even though the statutory duty ousts the common law duty in most situations where it applies, it is still necessary to determine whether the statutory duty can be the subject of a claim in the ordinary courts. While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As the statute was applicable in this case, respondent could not base his claim on the common law but instead had to have recourse to the Code, and, in addition, had to proceed to the Canada Labour Relations Board, the decision-making structure assigned this adjudicative task under the legislation. There is no original jurisdiction in the ordinary courts to decide the matter, only the ability to review Board decisions in the very limited parameters contemplated by the privative clause.
The principles governing a union's duty of fair representation which are set out in this Court's decision in Canadian Merchant Service Guild v. Gagnon clearly contemplate a balancing process. A union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union's choice was clearly due to the obvious error made in the selection process: it had no choice but to adopt the position that would ensure a proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by improper motives and as long as it turns its mind to all the relevant considerations. (emphasis added) |
But isn't there some theory or principle of natural justice that might persuade the court to overturn a decision that's clearly unfair?
Friend, you've been watching too much TV!
| Quote: | V. Jurisdiction Over Long-term Disability Eligibility: The Courts or the Collective Agreement
In recent years, a number of claimants dissatisfied with long term disability decisions made under Plans constituted pursuant to the terms of a collective agreement, have commenced court actions against their employers, their unions and against insurance companies acting as administrators of the Plans in question. In two recent decisions, the B.C. Supreme Court has directed such claimants back to the remedies available under the collective agreement, holding that the court did not have jurisdiction to adjudicate the claim. This suggests that if the collective agreement language indicates the parties to it intend disability claims to be decided in the context of the employer/employee relationship, the courts will enforce this intention. (emphasis added)
A. Paller v. Great-West Life Assurance Co. et al. and Chan v. Great-West Life Assurance Co. et al., 2003 BCSC 0582 ...
After reviewing the relevant documents, Neilson J. concluded that the dispute between the plaintiffs and HBT arose expressly or inferentially from the collective agreement, and that the intent of the parties was to resolve such disputes by the process provided for under the collective agreement and the Labour Relations Code. As a result, Neilson J. concluded that the Court did not have juurisdiction to adjudicate the plaintiffs' claims.
B Ali v. The Manufacturers Life Insurance Company et al., 2004 BCSC 717, 2004 BCSC 781 ...
In the first hearing, Humphries J. agreed with the comments of Neilson J. in Paller; to the effect that if the collective agreement specifically provides for certain benefits and the specific plan or policy is incorporated by reference into the collective agreement, the courts ypically do not have jurisdiction to adjudicate disputes arising under the plan or policy. ...
At the subsequent hearing, plaintiff's counsel advised the court that the plaintiff wished to pursue the action as against the insurer and its employees regardless of whether the CRC decision was enforceable. Having concluded that the action was for benefits outside the scope of the collective agreement and that the parties intended long term disability disputes to be dealt with under the collective agreement, Humphries J. dismissed the plaintiff's claim on the basis that the court had no jurisdiction to adjudicate it. (From Cross Canada Case Law Update by William Westeringh and Allison Taylor of Fasken Martineau DuMoulin LLP for Disability Insurance Claims - 2004, Continuing Legal Education, November, 2004, pgs. 5.1.8-5.10) |
Could I bring my case before the B.C. Human Rights Tribunal?
Duty Rating: Good luck with that.
| Quote: | For example, Professor Adell, in his CLE Article, Labour Arbitration vs. Human Rights Code (CLE Human Rights: Disability Issues 1999)wrote: "A fundamental and probably inescapable problem with labour relations law is that, by its very nature, it tends to conflate the tripartite employer-union employee relationship and the bipartite employer-union relationship. The most concrete legal response to that problem has been the implementation over the past 30 years of the union's duty of fair representation (DFR). The increasingly frequent links between anti-discrimination rights, which are vested in individuals, and the collective agreement administration process, which privileges collective rights, threaten to put very heavy pressure on the DFR both in theory and practice. Those pressures are further aggravated by the various lines of jurisprudence stemming from the Supreme Court of Canada decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, which are giving unions and the grievance arbitration process an as yet ill-defined range of new responsibilities for enforcing employee rights (and duties) previously enforced in other forums – rights under benefit plans not incorporated into collective agreements, rights and duties under defamation law and other aspects of tort law, and so on.
… In addition to the expectation that arbitrators will generally do a fine job of enforcing human rights law (which may well be true), an important thread which runs through Weber, through the judgment of L'Heureux-Dubé J. in Béliveau St. Jacques v. Fédêration des employées et employés de services publics Inc., [1996] 2 S.C.R. 345, and through the arguments I have heard for exclusive arbitral jurisdiction over human rights complaints is a resolute optimism that the DFR will be up to the arbitral task of protecting individual rights in a situation where unions retain a veto over access to arbitration. On that score, however, very little about the DFR is particularly reassuring. One big problem is that DFR proceedings are essentially an elaborate sideshow. They consist largely of a battle between employee and union, although the real dispute in most cases is between the employee and the employer. As well as draining resources from the union, DFR proceedings often drag out the employer's involvement as well. For good reason, employers commonly feel obliged to participate in the DFR hearing, and if the DFR complaint succeeds, part of the remedy may be an arbitration against the employer anyway. It has always seemed to me to make more sense to ensure that the individual has access to a forum that cannot be foreclosed to him or her by the union. The human rights forum does meet that need to some extent, though very often not as efficiently as one might like. The second problem with relying on the DFR as a fallback in human rights cases, and in other cases as well, lies in the fact that it was never designed to get much traction on the merits of the underlying dispute..
In theory, and most of the time in practice too, labour relations boards do not look closely at the merits of the particular grievance and at whether the union was right or wrong in dropping it. In process terms, the union only has to avoid "gross negligence", and it has to pay serious attention to the grievor's story and investigate it carefully. If it does that, and if it doesn't show any subjective ill-will toward the grievor, the union is unlikely, as I read the jurisprudence, to be found in breach of the DFR. (emphasis added) The K.H. case discussed above may indicate a more intensive duty in disability cases, but that may not be a desirable development. Unions are, above all, collective bargaining representatives. They are not boutique law firms, and they should not have to put endless resources into litigating human rights issues.” (From footnotes in CHAPTER VII: FORUM MULTIPLICITY OPTIONS – SPECIAL CONSIDERATION, Human Rights Review, Background paper for the Administrative Justice Project, p. 7 of 32) |
But can I trust a shark - I mean, my attorney?
Duty Rating: High. The duty owed by an attorney in a solicitor-client relationship in most jurisdictions remains nothing short of legendary. In addition, atty is not allowed to take a case unless s/he feels competent to advise. If there's any question, the law society quite often steps helpfully in, spreading if not sweetness and light at least light. See Practice Standards and - gulp! Conduct and Discipline Hearings.
Conclusions:
| Quote: | Making a claim for insurance benefits - especially LTD - is rocket science! Yet, unbelievably, there is NO ONE in the normal course of injury or illness with a clear duty to represent the claimant's interest. The union duty toward individual workers is limited at best, and insurance companies are not in business to 'share the wealth.' To make matters worse, the labor board has discretion to prefer evidence from a two-hour Functional Capacity Evaluation (FCE) ordered by insurer over a comprehensive report by a world-renowned medical specialist. Panelists may even deny a claim supported by that specialist's report on an assumption that claimaint went 'doctor shopping' to get a more favorable report!
When you suffer injury or illness in the course of employment, seek both medical AND legal advice. The rules of evidence and the burden on claimant to prove claim are wildly different at each forum and both change again on appeal. You'll need both types of expert in your corner to ensure your claim succeeds EARLY ON - before the hurdle increases - before you get here. Do 'lawyer up'. Benefit claims are NOT U.S. TV cop shows! Believe the old wheeze - Any man with himself as a lawyer has a fool for a client. Enter the ring alone and panelists may correctly conclude that unrepresented you has simply rolled over and waived your right to an advocate, making it much easier to deny your claim.
To find a lawyer, search the B.C. Labor Board Judgments, which helpfully list counsel, and/or search the terms, 'disability workers compensation' at the Continuing Legal Education Society of B.C. (CLE), which yielded 212 hits when we checked Aug. 25/08. When you've got a list of names, find contact information at the B.C. Law Society's excellent Lawyer Lookup link. Again, various charitable organizations often provide up-to-the-minute medical information as well as a list of plaintiff attorneys. |
Losing the battle does not mean you lost the war:
| Quote: | | If your claim is denied, you're out of resources and/or each atty you consult says sorry, the odds against appeal are stacked too high, insured may wish to enlist advice and support from political representatives and the media. The provision of health services everywhere in the world is a matter of public concern. More specifically, medical experts whose evidence is found somehow deficient should be informed of the outcome. It's in their interest as medical authorities and as patient fiduciaries to balance, shall we say, the powerful insurance lobby with actual, authoritative medical information and to ensure that information is properly and fairly not arbitrarily considered. |
We'll continue to update and add to all of the above. Please check back soon for updates! Meanwhile, gotta question or comment? Send it to editor@bcdisabilities.com. We live to serve.
Link to this entry
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Last edited by editor on Thu Jul 30, 2009 1:50 pm; edited 14 times in total |
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editor
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Joined: 31 Oct 2003
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| Posted: Mon Jan 05, 2009 4:25 pm Post subject: |
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Not everyone agrees that 'lawyering up' is the way to go:
Avoiding the Cracks
A Guide to Understanding the Workers' Compensation System
Hardcover
By Anne Tramposh, vice-President and co-owner of *Advantage Health Systems Inc.
Rating: Moderate. Author refers to the U.S. workers' comp system but many of her findings are applicable to other jurisdictions. Case studies illustrate danger points post-illness/injury where effective communication might often prevent a solid claim being denied. Very good physical assessment forms beginning at p. 116 to help claimants identify post-trauma challenges affecting work duties, i.e., ability to sit/stand/push/pull/climb/balance and so on, which in turn might assist treating physician and independent medical examiner in preparing a report to support a claim.
| Quote: | In the majority of workers' compensation cases, an attorney is not necessary. In fact, sometimes hiring one can actually be detrimental to an injured worker. (emphasis added) Several things happen when an attorney is retained by a claimant (the term used for a worker who has filed a claim). The first, and most significant, is that the employer and the insurance company representatives can no longer talk directly with the injured worker. They must now talk through the attorney. This introduces a breakdown in communication.
The second important thing that happens is that the attorney charges the claimant a percentage of the benefits. While the actual percentage varies by state, the typical range is from 25 to 50 per cent. People hire attorneys because they think the attorneys will help them get more than they can get themselves. However, in many workers' compensation cases, the actual dollar amounts of the benefits are spelled out (nearly to the penny) by law, and the attorney can not increase the value of the case one bit. ...
Nevertheless, there are times when an attorney may be helpful to an injured employee. If benefits are being denied by the company when it is highly probable that they should be covered under workers' compensation, an attorney may be able to help. Workers who have been fired specifically because they filed a workers' compensation claim will probably need an attorney.
If the employer acted negligently, injured employees may have a cause of action in addition to the workers' compensation claim and will need to retain an attorney. Please note that negligence will probably have to be willful; in other words, the employee will have to prove that the employer virtually caused the accident on purpose. If a product or tool a worker was using causes an accident, the employee may have a cause of action against the manufacturer of the tool, in addition to a workers' compensation case, and here an attorney will also be necessary. While it might seem that these situations are common, that is far from the truth. (From Chapter 8, Potential Players in the System, pgs. 77-78) |
About the author:
| Quote: | | Anne Tramposh, a physical therapist and rehabilitation specialist, is cofounder of the firm specializing in the prevention of industrial injuries, Advantage Health Inc., where she is Vice President of Professional Services. A frequent lecturer before employers, physicians, and employee organizations throughout the country, she is cofounder and former Director of Industrial Services of Wx: Work Capacities Inc., also focusing on the treatment and prevention of injuries involving workers' compensation. In addition to this volume, she has published previously on work-related injury as well as been coproducer of a video series on trauma. (From the last page of the book) |
About Advantage Health Systems, Inc.:
| Quote: | ... Late in fiscal 1993, the company acquired Advantage Health Systems, Inc. This addition brought what Primedex's president and CEO at the time, John H. Petillo, Ph.D., called "advanced medical management procedures which draw heavily on expert medical and technical systems to achieve efficient, high-quality and cost-effective health care delivery." Products offered by Advantage included Physician Directed Care Management--a medical/surgical management program--and Network Management Services, which was a network modification and management service used to lead traditional indemnity-type insurance into managed care.
Legal Entanglements in the Mid-1990s
The company's acquisitions had been made in hopes of accommodating the expected growth in managed care due to 1990s health care reforms. With the additions of RadNet and Advantage, Primedex owned and provided management services and/or had interests in 17 different California diagnostic imaging centers. This enlargement of the company came with a price, however. In 1993, Primedex experienced a net loss of $47.8 million, or $1.25 per share; RadNet suffered operating losses of $13.5 million. These figures were due, at least in part, to the negative impact on the company's business that came from California legislation that cracked down on workers' compensation fraud. These reductions in collection percentages of the company's workers' compensation-related accounts receivable, resulted in a poor financial performance.
As a result of this negative financial impact, all offices of Primedex Corp. were closed. While this was a difficult decision for the company to make, Primedex Health System management determined that it was in the best interests of the company and its stockholders to phase out the workers' compensation business and to concentrate instead its other areas of business.
According to a June, 1994 New York Times article by Diana B. Henriques, the Los Angeles District Attorney's office issued search warrants to Primedex controlling shareholder, Robert E. Brennan, whom she described as an "embattled Wall Street financier." This investigation was to determine if the company committed fraud, as they allegedly submitted inflated bills to workers' compensation insurers. Additionally, the Los Angeles D.A.'s office searched executive Primedex offices in Newark, New Jersey, and other company facilities in California.
This investigation of the Primedex Corp. unit and its association with worker's compensation plan treatment and evaluation went on for about two years. Having first performed a raid of the Primedex Health Systems' California offices in late 1992, fraud squad investigators again raided offices in 1994 in Los Angeles, New Jersey and New York for evidence of wrongdoing. Specifically, the warrants pertained to activities including alleged criminal conspiracy, tax and securities fraud, and grand theft. A Los Angeles grand jury sought additional related documents, and Robert Brennan was charged with securities fraud and ordered to repay $71 million in illegal profits made from the manipulation of stock trading in the early 1980s. He and his new company--First Jersey Securities--filed for bankruptcy less than one week before they were due to pay the judgment against them. (emphasis added) (From Funding Universe on Primedex Health System's takeover of the author's concern) |
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editor
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| Posted: Mon Jan 05, 2009 4:26 pm Post subject: |
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About workers' compensation:
National Institute of Disability Management and Research
Recommendations to the Royal Commission Into the BC Workers' Compensation System
January, 1998
Vancouver, B.C.
| Quote: | | Quote: | Background: The Demand for Change
Workers' compensation systems
Workers compensation systems across Canada are at a crossroads. Most of the existing workers' compensation systems are under review or have been substantially restructured in response to a broad-based dissatisfaction with services and benefits.
Criticism from employers has revolved around the high cost of funding the system, the rapid increase in rehabilitation expenses, and the lack of measurable outcomes for rehabilitation/return-to-work efforts.
Workers and union representatives are alarmed that a growing emphasis on controlling costs has resulted in a decline in benefits and entitlements, and an increasingly combative atmosphere as claims are delayed, diverted or denied. (emphasis added) (-- p. 9) |
| Quote: | Disabilities that affect working Canadians are not always incurred through work. An automobile or recreational accident, or a debilitating sickness or disease, can lead to temporary or permanent disabilities for working adults that affect the individual, the family, the workplace, the employer and the social system.
Private and public short-term and long-term disability insurance providers face many of the same criticisms as workers' compensation systems. In many cases, workers are not adequately supported in efforts to return to work and suffer frustrating and often debilitating delays in receiving benefits or rehabilitation assistance. Employers are increasingly demanding accountability for rising costs and lengthy claims handling. New medical conditions, changing workplace conditions and demands, and the continual pressure to contain or minimize costs contributes to increased tensions between claimants, employers and insurance providers. ...
Government departments that provide services and benefits to persons with disabilities are facing similar criticisms from taxpayers. ... Persons with disabilities not covered by entitlement programs such as workers' compensation, automobile insurance, or short-term and long-term disabilitiy insurance programs face a subsistence level income and limited access to vocational rehabilitation. The increasing demands on our benefits system, and the growing discontent of individuals who feel abandoned and are forced to live a subsistence existence on shrinking disability nenefits, add to the demands for reform.
... CPP/QPP disability cliams rose at an unprecedented rate, creating concerns about the future viability of the program. The federal government blames some of the increase on the increasingly cash-strapped provincial governments shifting claimants to the federal disability benefits system. ...
Unions report that growing numbers of workers are falling through the cracks of the insurance system because they are suffering from poorly understood injuries, diseases or other conditions. Employers and insurance providers, in their narrow focus on containing costs, are forgetting that workers agreed to give up the ability to sue employers in return for protection from work-related injuries and disease. (emphasis added) Unions, advocacy groups and persons with disabilities are concerned that many insurance and benefits providers are simply stonewalling new claims, cutting income replacement or pension income levels; forcing workers with disabilities into jobs that are unsuitable or unsafe. (-- pgs. 10-12) |
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From the inquiry on the adequacy of benefits:
| Quote: | Current policies and adjudicative procedures make it administratively feasible for British Columbia’s compensation system to handle the 180,000 to 200,000 claims it receives a year. However, the efficiency of these policies and procedures, which are designed to ensure that workers are not stranded without income, is gained at the expense of more precisely individualized adjudication. The result is a situation where, even if the average indemnity benefit paid to the injured worker is adequate relative to the average loss, some workers will receive less than this and some will receive more. In such circumstances, the system is generally perceived to be functioning appropriately in that it is accomplishing what is referred to in legal terms as “average justice.”
This average-justice system differs from the tort system it replaced, in that the latter’s focus is on a much more precise and detailed assessment of each individual plaintiff’s actual loss. However, it is far from clear that the tort system is necessarily capable of arriving at better outcomes for injured workers. The tort system is different not only in the extent to which it takes a detailed measure of individual loss, but also in many of the causation and damage assessment principles that it applies. ...
The commission acknowledges the prospect that, as long as determining compensation for workplace injuries and illness remains outside the jurisdiction of the courts, the administrative adjudication of claims will inevitably result in some workers getting more and others less than the amount which might be considered ideal. There should, however, be average or collective justice. The concept of collective justice is entirely defensible in a system of administrative adjudication as long as individual deviation from the collective is within acceptable limits. (From For the common good: Royal Commission on the Workers' Compensation System of British Columbia, Jan. 20/99, Vol. II, Chapter 1, The Adequacy of Benefits, pgs. 5-6 of 90) |
The U.S. perspective:
Disability Income Insurance:
The Unique Risk
Hardcover
By former Paul Revere Corporation president Charles E. Soule
| Quote: | WORKERS' COMPENSATION
Workers' Compensation coverage was the first borad-based governmental disability program enacted in the United States. Workers' Compensation programs represent 51 separate programs, 50 of which are controlled by state governments and 1 controlled by the District of Columbia. The programs differe significantly from one state jurisdiction to another, both in the level of nenefits payable and the administrative rules governing payment. The growth and influence of the labor union movement in the early 20th century culminated in broad acceptance of Workers' Compensation benefits in the 1930s.
Logically, the more highly developed industrial states were the first to enact such legislation, and those less industrialized jurisdictions were the last to pass legislation. There is a tendency for the more industrialized states to provide more liberal benefits.
Provisions
Paralleling the substantial growth of Social Security disability benefits during the late 1960s and the 1970s, Workers' Compensation benefits were substantially increased during the same period. However, even today there continues to be a substantial difference in the level of Workers' Compensation benefits from one state jurisdiction to another. The more liberal programs provide up to two thirds of a worker's predisability income, but every program has some sort of a maximum benefit payment cap. All programs are designed to primarily cover the needs of the lower-middle- and lower-income working class and are not designed to fully cover the needs of the upper-middle and high-income earners. The length of benefit payments has gradually been liberalized over the past several decades and is, in most cases, coordinated with Social Security disability benefits, so that the two programs do not pay simultaneously.
The Social Security program is the primary payor, so that Workers' Compensation benefits generally cease when an individual is accepted for Social Security disability benefits.
One of the areas of greatest difference from one state program to another is in the amount of increased benefits based upon the number of dependents. In some jurisdictions the basic benefits are increased by a specific percentage for each dependent. In others each dependent results in an increase of the benefit payment by a flat dollar amount, and this dollar amount varies widely from state to state. In most instances the level of benefits is adjusted substantially, based upon the number of dependents of the disabled individual.
Factors Affecting Workers' Compensation
Similar to private disability insurance experience, Workers' Compensation benefit payments are impacted by subjective factors, even though disability payments are payable on the more objective on-the-job illness or accident. Workers' Compensation statistics indicate an increase in claim activity during recessions and, conversely, much improved experience during periods of low unemployment. Similar to the circumstances in private disability experience, both the frequency and length of Workers' Compensation payments are affected by the economic cycle.
A second subjective factor that has become of increasing importance during the past several years is the increasing public awareness of the availability of Workers' Compensation benefits. In addition, there is increased awareness and knowledge of the circumstances that may qualify a person for benefit payments. These factors, along with the increased "entitlement ethic," have had the same adverse impact upon Workers' Compensation benefit payments as on the private sector.
Coordinating Benefits
With the substantial growth in the percentage of income covered under Workers' Compensation benefits, private insurers during the 1970s began to recognize that the y could no longer ignore such potential benefit payments in their own underwriting process. To do so would cause overinsurance when Workers' Compensation benefits were payable along with private disability benefits. Naturally, this duplication of payments carried with it the inevitable increase in morbidity as it became more profitable for the claimant to remain disabled rather than return to work. ... (From Chapter 20, Governmental Disability Programs, pgs. 180-181) |
About the author:
| Quote: | | Soule retired from Paul Revere Corporation in 1997 as Paul Revere and Provident Companies merged. He began his career in 1956 after graduating from Dartmouth College and served Paul Revere for 41 years, most recently as the company’s seventh President. This scholarship is a tribute to Soule’s many contributions to the disability industry. (From Assumption College Press Archive accessed Jan. 6/09) |
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| Posted: Mon Jan 05, 2009 4:28 pm Post subject: |
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More on the bar against union workers suing employer:
| Quote: | Illness and Disability in the Workplace
How to Navigate Through the Legal Minefield
By D'Andrea, Corry, Forester
Looseleaf
Updated to March 12/08
Rating: High. A very practical if discouraging guide that gives readers an idea of the hurdles involved in a legal challenge as well as a few terms of art to assist in a more focused search.
| Quote: | St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704 ... Mr. Justice Estey delivered the judgment for the court:
The collective agreement establishes the broad parameters of the relationship between the ecmployer and his employees. The relationship is properly regulated through arbitration and it would in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law.
... He then quote with approval the decision of Hall, J. A. in A. W. Campbell v. East‑West Packers (1969) Ltd. (1982), 142 D.L.R. (3d) 90 (Man. C.A.):
A plain reading of this legislation reveals a clear legislative intention that all collective agreements shall contain a provision for final settlement of all disputes or differences between the parties, including employees, concerning its meaning, application or violation. The collective agreement in question does contain such a provision and it expressly provides that dismissal of an employee is confined to the process of grievance and, if necessary, arbitration. Nothing in that agreement preserves or confers the remedy of litigation.
In the result, the Supreme Court of Canada held that labour relations legislation provides for an arbitration process for the final resolution of disputes, and penal provisions for the breach of statutory duties. Under the circumstances, a civil action for damages would be inappropriate for the effective enforcement of the collective agreement. In the result, this legislated process has ousted the jurisdiction of the courts in regard to virtually all disputes between an employee and an employer who are subject to a collective agreement. (From the chapter entitled, Short- and Long-Term Disability Insurance, p. 3.2) |
| Quote: | | The court does retain a very limited jurisdiction in matters which may arise out of the union employee and employer relationship. Such actions would largely arise from negligent or tortious actions of the employer, or injunctive relief arising from an illegal work stoppage (Weber v. Ontario Hydro) (-- p. 3.3) |
| Quote: | In arbitration cases dealing with unionized employees claiming to be disabled, it is worth noting that the arbitrator does retain the jurisdiction to determine whether the condition suffered by the employee constitutes a disability at all. One arbitration board has stated that the relevant factors in such a determination include:
(a) the duration of the condition,
(b) the prevalence of the condition in the general population; and
(c) the extent to which the condition interferes with the ability of the individual to fully participate in society. (Mississauga (City) Transit Department and ATU, Local 1572 (Tanner) (Re) (2005), 141 L.A.C. (4th) 84, 82 C.L.A.S. 14 (Ont. Arb. Bd. - Springate) (-- p. 3.4) |
| Quote: | | In summary, entitlement to disability insurance benefits flows from a specific wording of the policy. In determining entitlement, the courts apply broad, liberal principles of interpretation. Often the insured is given the benefit of any doubt. Typically, after 24 months of coverage, the definition of total disability leads to an examination as to whether the insured is capable of performing any gainful occupation for which he or she is reasonably qualified by education, training or experience. The test applied is a subjective one, which examines the impact of the disability on the individual before the court. Looking at all of the circumstances, the object is to determine whether the person is incapable of gainful employment by reason of disability. Given the subjective nature of the test, the identical disability may well qualify one person for benefits, but not another. (emphasis added) (-- p. 5-20) |
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editor
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| Posted: Mon Jan 05, 2009 4:30 pm Post subject: |
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On the perils of relying on experts:
| Quote: | The Gouge Inquiry, of course, is investigating cases on which a now discredited pathologist, Charles Smith, had made findings of culpability, many of which were later shown to be false, although they had resulted in many cases of false imprisonment.
See also Lawsuit fears trumped ethics in botched cancer tests: lawyer, posted March 27/08 at cbc.ca.
... The evidence before the Cameron Inquiry shows that 383 patients were given inaccurate results on their hormone tests. The test results were used by the patients' physician to determine the course of their treatment for breast cancer. As a result of inaccurate testing a significant number of women with breast cancer died when they could have been saved if accurately diagnosed.
There is some suggestion that the province's largest health board, Eastern Health, deliberately suppressed the information about these errors on the advice of their insurance councel in order to limit its legal liability. There is a suggestion that it did so on the basis of legal advice. (emphasis added) The matter was just brought to light by means of a class action lawsuit initiated by a St. John's lawyer, Ches Crosbie.
...
In my view, the discussion and debate prompted by the Justice Review Task Force could not have come at a better time. We are seeing three trends in the use of experts in our system:
(1) The increase in the number and variety of experts;
(2) An increasing influence exercised by experts, as judicial/administrative control seems to wane; and
(3) Tragic examples of the kind of damage that can inflicted by incompetent experts, even in the context of accepting persons have the full range of judicial protection as demonstrated by some of the evidence in the Gouge Inquiry.
The Advocate
Magazine Subscription
Implementation of the Proposed New Rules of Civil Procedure in the Concept Draft (2008)
By Darrell Roberts, QC
Issue No. 66, p. 177
Mr. Roberts very trenchantly criticizes the proposals for a requirement to have the experts on each side confer with each other and produce a statement setting out the points of difference between or amongst them. In addition, he is very critical of the proposal that lawyers be prohibited from attending, unless the court orders otherwise.
... The March 14, 2008 Work in Progress Draft Rules has not been approved by the full Rules Revision Committee but does make some significant changes. The parties may consent not to have the experts confer and the rule no longer bars lawyers from attending the conference.
Other changes to the Rules may provide significant assistance with respect to some of the issues we have touched on above. Most notably, the Rules will make it clear that the expert is not to be an advocate for any party but rather has a duty to assist the court. (From Expert Evidence and the Gouge and Cameron Inquiries by Leo B. McGrady, QC of McGrady & Company, in the Continuing Legal Education Society of British Columbia, Employment Law Conference - 2008, April 24-25/08, Vancouver, B.C., pgs. 10.1.11) |
Recommended Reading:
| Quote: | See also Gary Edmond, "Pathological Science? Demonstrable Reliability and Expert Forensic Pathology Evidence" (March 2008). University of New South Wales Faculty of Law Research Series. University of New South Wales Faculty of Law Research Series 2008. Working Paper 6.
Abstract: This paper is focused on jurisprudence and admissibility standards pertaining to expert evidence. Informed by recent theoretical and empirical approaches from the history, sociology, and anthropology of science and medicine, it suggests that judges should impose an explicit reliability standard on expert evidence adduced by the state. The basic contention is that courts should not admit expert evidence adduced by the prosecution unless there are good grounds for believing that the evidence is reliable. Expressed more precisely, judges should not admit expert evidence adduced by the prosecution unless that evidence is demonstrably reliable. This would require the state to demonstrate, on the balance of probabilities, that the techniques and theories used by its experts and the opinions they present in court are reliable. In practice, the state would be expected to undertake some kind of empirical testing to ascertain whether the techniques and theories relied upon by forensic scientists, pathologists, and technicians are valid and reliable. In the absence of testing, judges might consider a range of supplementary, and usually weaker, indicia of reliability to determine whether the evidence is sufficiently reliable for use in a criminal trial.
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| Posted: Mon Jan 05, 2009 4:32 pm Post subject: |
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About U.S. disability benefits under Social Security legislation:
Improving the Social Security Disability Decision Process
Committee on Improving the Disability Decision Process: SSA's Listing of Impairments and Agency Access to Medical Expertise Board on Military and Veterans Health
John D. Stobo, Michael McGeary and David K. Barnes, Editors
Institute of Medicine of the National Academies
Paperback
| Quote: | The Social Security Administration (SSA) asked the Institute of Medicine (IOM) to study its medical procedures and criteria for determining disability and to make recommendations for improving the timeliness and accuracy of its disability decisions. SSA asked the IOM to help in two broad areas, broken down in to 10 specific tasks (footnote omitted).
First, SSA asked IOM to recommend ways to improve the use of medical expertise in the disability determination process, including how medical expertise can best be provided to support case adjudication by the 54 Disability Determination Services (the state agencies that make the initial disability determinations for SSA, called DDSs) and in appeals hearings held by SSA at 144 hearings offices around the country, as well as advise on the organization and qualifications of supporting medical experts. ...
Under the Social Security Act, an individual is considered to be "disabled" for Social Security purposes if he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or cab eb expect to last for a continuous period of not less than 12 months." Further, "[a]n individual shall be determined to be under a disability only if his physical or mental impairment or impairments are such severity that he is not only unable tyo do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." (From the Summary, pgs. 1-3) |
| Quote: | ... The nine examples of Listing-level impairments that the Social Security Administration (SSA)) originally provided to guide decision making included the loss of vision, hearing, or speech; loss of use of two limbs, progressive diseases such as diabetes, multiple sclerosis, and heart and lung conditions that have resulted in major loss of physical function; terminal cancers; and neurological or mental impairments requiring institutionalization or constant supervision.
Subsequently, the concept of disability has changed in recognition that disability, as distinct from impairment, is not just inherent in the individual and his or her medical condition but is the result of the interaction between the person with impairments and features of the socioeconomic environment in which the person lives, such as the presence or lack or accessible transportation and practical workplace accommodations. Under this concept, two people with the same impairment might have quite different degrees of work disability. For example, a person with an injury that permanently limits use of an arm, who is 55 years old, has limited education and has a work history of manual labor, would be very disabled, while a person with the same impairment with a law degree may not be disabled at all. Similarly, two people with impairments of quite different severity might be equally disabled from working. (emphasis added) (From Chapter 2, Evolving Concepts of Disability, pgs. 18-19) |
| Quote: | | In addition to long claim-processing time, there has been an overall upward trend in disability claim filings since 1989 and a corresponding increase in case backlogs. At the DDS initial claim level, case backlogs that totaled less than 300,000 in the late 1980s were nearly 625,000 by 2004. At the ALJ hearing level, the increase has been even more dramatic - from less than 200,000 to more than 700,000. By the end of FY 2006, the initial backlog had fallen by 11 percent to 555,000 but the queue for ALJ hearings had grown by 13 percent to 715,000. (footnotes and citations omitted) (From Claim-Processing Time, p. 58) |
| Quote: | All DDSs throughout the country operate under the same federal procedures for making disability decisions for SSA, yet there is considerable variation among states in decision outcomes. In 2004, the percentage of initial claims allowed by individual state DDSs varied widely, from around 25 percent in low-allowance-rate states such as Tennessee and Mississippi to more than 50 percent in high-allowance-rate states such as Hawaii, New Jersey, and New Hampshire. There is also wide variation in the bases for allowances. (emphasis added) In 2003, initial claims were allowed based on meeting the Listings in less than 35 percent of the initial favorable decisions in New York, Vermont, and Minnesota. But the same basis was used for allowance in more than 55 percent of the initial favorable decisions in Illinois, South Dakota, Indiana, and Oklahoma. In North Dakota, the figure was 65 percent. States like Indiana and Washington found imnpairments equivalent to the Listings in only 2-3 percent of the allowances. In contrast, Vermont found impairments equivalent to the Listings in more than 21 percent of its allowances.
The percentage of allowances based on the Listings varies less across states in some conditions than in others. The percentage of allowances made for malignant neoplastic disease ranges between 85 and 98 percent across DDSs. The range is much wider for mental disorders. The percentage of allowances for mental disorders based on the Listings varies between 36 and 86 percent.
Variability in decision-making not limited to allowances. ...
There are also significant state-to-state variations in procedures and administrative arrangements. (emphasis added) ...
ALJs, who decide disability appeals throughout the country, also operate under the same federal rules in making disability decisions. However, data about hearing decision outcomes on a state-by-state basis show considerable variation in outcomes. ...
A claimant cannot be awarded disability benefits unless there is a medical basis for his or her impairment. Therefore, SSA relies heavily on medical expertise for claims adjudication. However, not all DDSs or regional appeals offices have access to a full range of medical expertise. ...
At the field office level, states do not have formal or systematic quality assurance procedures for evaluation of medical information collected on applications for disability. ...
As summarized by the Social Security Advisory Board (SSAB, 2006:7-8):
Over the years policy makers and administrators have identified many factors, in addition to the inherent subjectivity of the statutory definition of disability, that may affect the consistency of disability decision making. ... (From Variability in Decision Making, pgs. 58- 61) |
| Quote: | External Input Affecting the Listings
No matter how reliable and valide the Listings may be at any given moment, they are constantly affected by external developments. These include changes in disease patterns, advances in scientific knowledge and medical practice, advances in assistive technologies, and changes in the workplace affecting workers in terms of job requirements and potential sources of injury.
The most common devices that government agencies use to ensure that evidence-based regulations are kept current are:
. feedback from the regulatory process
. staff research
. external advisory committees
SSA has expanded regulatory feedback in recent years by sponsoring policy conferences and using advanced notices of proposed rulemaking (ANPRAMs). At policy conferences, medical specialists present the latest research and medical practices and interact with beneficiaries, advocates, and SSA disability officials. ANPRMs solicit suggestions from all interested parties on how the Listings should be revised. The committee supports these efforts to incorporate more public and professional input into the Listings revisions process.
The Office of Medical Policy, the staff component of the SSA Office of Disability Programs, is responsible for maintaining the Listings. Currently, the Office of Medical Policy has seven medical officers, who are charged with keeping abreast of the medical literature, such as the results of clinical trials, research on outcomes, and practice guidlines. Five are physicians with expertise in psychiatry, physical medicine and rehabilitation, neurology, and pediatrics. In addition, there is a speech and language pathologist and a psychologist. This office is small and does not have experts in all the major specialties (although it can draw on the advice of specialists in the federal DDS), so its ability to supply the necessary medical expertise to the Listings revision process is limited.
RECOMMENDATION 4. SSA should ensure that its Office of Medical Policy has the expertise relevant to the full range of listed impairments and has the resources to stay knowledgeable concerning new developments in medicine and rehabilitation, for example, by conducting systematic literature review on a periodic basis. (-- pgs. 102-103) |
| Quote: | Unfortunately, appropriate and necessary medical care and treatment for serious disorders is not readily availble to everyone. For individuals who do not receive treatment, thse listings may not apply. As SSA notes in the preface to the cardiovascular listings, "If you do not receive treatment, you cannot show an impairment that meets the criteria of most of these listings."
Variable access to quality health care services throughout the country is an unfortunate fact, but is beyond the capacity of SSA to remedy. Observation of a patient's response to medical treatment is a standard medical pracctice and legitimate way for SSA to evaluate impairment severity in its rules. The fact that all applicants may not be able to document impairment severity this way does not make it any less valuable as a method to assess impairment severity in those who can, especially given that the Listings are only a screening to identify obvious allowances.
Ideally, individuals applying for disability benefits would be evaluated and receive the medical, vocational rehabilitation, and employment services that would enable them to resume working gainfully. Instead, in the current system, many individuals with remediable work limitations are not eligible for medical care or vocational rehabilitation until after they have completed the process of qualifying for cash benefits. At that point, they may become eligible for Medicaid if they are SSI recipients (unless they have already qualified under other criteria, such as those for the Children with Special Health Care Needs program). SSDI beneficiaries must wait for two years to be eligible for Medicare. Only then may these individuals be able to obtain the medical care they need.
This requirement obviously disadvantages poor people and others without adequate health care coverage, but any unfairness is the result of the social and political system that created these inequities, not SSA's Listings, which is meant to be the most efficient method available for easily identifying obvious allowance cases. (emphasis added) (From Adaptability of the Listings, pgs. 105-106) |
| Quote: | Estimated Average Monthly Social Security Benefits Payable in January 2008:
Disabled Worker, Spouse and One or More Children $1,690
All Disabled Workers $1,004
(From Social Security Online, Questions, available Oct. 14/08) |
More about U.S. Social Security:
Disability Income Insurance:
The Unique Risk
Hardcover
By former Paul Revere Corporation president Charles E. Soule
| Quote: | SOCIAL SECURITY DISABILITY PROGRAM
With the passage of the 1956 legislation that first added disability income benefits to the Social Security program came marked changes upon the private insurance sector. Similar to the intent of the initial Social Security retirement and old-age legislation, Social Security disability benefits were intended to be only a "floor of coverage." As the years passed, this proved not to be the case as far as Social Security disability benefits were concerned. The initial 1956 legislation provided disability coverage for only those disabilities that occurred over age 50, lasted more than 12 months, and were expected to be total and permanent. The level of benefits was modest, and individual insurers of disability income essentially ignored potential benefits from this source in their underwriting limits. Then in teh 1960s, the program was expanded to cover all Social Security covered workers, regardless of age, and the period at which benefits could become payable was reduced from one year to six months. Later on in the 1960s and continuing at a more rapid rate throughout the 1970s, Congress passed a series of bills that increased the level of benefit payments under the Social Security program, including disability income. With such an expansion of government benefits, it was no longer possible for private insurers to ignore the potential benefit payments from Social Security disability because of the dangers of overinsurance. (Chapter 20, Governmental Disability Programs, p. 183) |
| Quote: | ENVIRONMENT
Economic Climate
The economic climate in which we operate and the level of unemployment will continue to have a direct impact upon disability income results. Will double-digit inflation prove to be an acceptable norm in our economy? If this proves to be the case, ti will have a direct effect on expense rates, product design, and the general stability of in-force business. Inflationary periods tend to to increase lapses and policy makeovers, since the contract fails to cover the insurer's income needs after a short period of time. We will continue to experience periodic recessions, some steeper than others, with generally the same effect on our business as in the past. Morbidity will increase during recessionary periods, and the steeper the recession, the higher the morbidity. A true economic depression will have financial consequences similar to those of the 1930s depression. The volatility of disability experience is so directly tied to the economy and unemployment that adverse financial consequences cannot be avoided. (emphasis added) The successful disability manager is the one who can significantly blunt such adverse effects. (From Chapter 22, Disability Income Future, p. 199) |
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| Posted: Mon Jan 05, 2009 4:35 pm Post subject: |
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A caution about unions:
While America Aged
How Pension Debts Ruined General Motors, Stopped the NYC Subways, Bankrupted San Diego, and Loom as the Next Financial Crisis
Hardcover
By Roger Lowenstein
| Quote: | ... by 2030 one in five Americans will be over sixty-five.
Who will be there to provide for them? More than 60 million Americans either are receiving or have been promised pensions; however, their numbers are shrinking rapidly. In the private sector, the proportion of jobs with pensions has plummeted to just under 20 percent. Perhaps even scarier, a third of the workforce does not have any retirement sdavings - pension, 401(k), or private account - at all.
For workers still with pensions, plan assets are grossly inadequate. In the private sector, employers; pension funds are, cumulatively, an astounding $350 billion in deficit. ... So many pension plans have gone bust already that the federal agency that insures pensions is itself in trouble. This agency, the Pension Benefit Guaranty Corporation, is responsible for the pensions of 1.3 million people whose plans have failed. Thanks to a spate of recent costly failures (94 sponsors collapsed in 2006 alone), the PBGC is now $19 billion in the red, and could require a taxpayer bailout.
Even worse, the states and localities, which have promised pensions to millions of present and future retired policemen, teachers, clerical workers and others, are hundreds of billions of dollars behind on their payments to state pension funds. This is money owed by the taxpayers - and under the state constitutions, the debts must be paid; pensions can never be defaulted upon. Thus, the deficits will require a combination of layoffs, service cuts, and higher taxes in a majority of the states for decades to come. ... (footnotes omitted) (From the Introduction, pgs. 1-2) |
| Quote: | Though he bargained for private benefits, (Walter) Reuther strongly preferred public ones. He had a European notion of labor and inudstry as economic partners (a notion wholly foreign to (Alfred P.) Sloan and (Charles Erwin) Wilson at GM). Within the UAW, the benefits section was known as the "social security department," signaling Reuther's credo that, ultimately, welfare benefits were the responsibility of government. Corporate pensions were a stopgap.
Proof of Reuther's socialistic attitude was his frequent demand for higher wages and benefits without any increase in car prices. The latter ran counter to his members' economic interests (since higher wages would mean more dollars available for autoworkers). But Reuther fancifully included the general public, and especially the workingman, in the UAW's constituency; he did not want the car-buying public to pay the price for union gains. He frequently argued that labor, management, and the public each had a worthy and defensible stake in corporate institutions - notably in GM - an argument that infuriated Wilson. For one thing, Reuther did not represent car buyers per se. For another, prices were none of the UAW's business.
GM had been forced to put up with government quotas, price controls, and meddling by the Labor Board during the war and its aftermath; now the company was anxious to return to normalcy, which the executives defined as operating its business with a free hand. Sloan, who had retired from day-to-day management but was still presiding as chairman, feared that expanding the federal welfare state would further, and perhaps irretrievably, entangle his company in the maws of government.
Looking across the Atlantic, welfare states were already emerging in Europe. Between the end of the war and 1948, the British government took over the country's coal mines, railroads, and gas and elecrtric companies, all with rather little ado. The French leader General Charles de Gaulle nationalized Renault, France's leading automaker. In speeches and interviews, Wilson, an engineer like Sloan but fifteen years younger and less parochial in his worldview, argued that American industry and labor should work through their issues rather than submit to takeovers by the state - what Wilson termed "the philosophy of class conflict from Europe." The fear of creeping statism was very real. As Business Week warned, "British socialism seems a closer threat than Russian communism."
Strangely, Big Business, which led the attack against expanded government benefits, seemed not to notice that it was the only alternative provider. As Harry Becker, who headed the UAW social security department, wrote, either Congress would deliver on social insurance or it would be "sought from employers across the collective bargaining table." Business was determining who would carry the burden of benefits several generations hence - and it was choosing itself rather than Washington! (emphasis added) (From the chapter entitled, Walter Reuther and the Treaty of Detroit, pgs. 21-23) |
| Quote: | Suppose, for example, that in 1945 GM had hired a fresh-faced twenty-five-year-old worker, likely just returned from the war. In 1974, when the new contract took effect, that worker would be fifty-four. He probably had a family, maybe a son of his own had served in Vietnam. He was eager to retire, but would stay on the job until he got his pension. He might have worked another eight or ten years - that is, to his early sixties or perhaps until sixty-five - stamping metal, fitting fenders, or otherwise contributing productive labor.
With "thirty-and-out," he could retire at fifty-five with an enhanced pension of, incredibly, $550 a month - more than double the pension of workers who retired at the traditional age. What was worse (from the employer's standpoint), suppose our worker lived to, say, seventy-five: under the old system he would have retired in his early sixties and lived off his pension for a decade or so. Now he might reitre at fifty-five, and thus be a ward of the company for twice as long. Actually, since life spans were increasing, the change was even more pronounced. Pensioners would be retiring earlier and they, as well as their spouses, would be living longer, taxing the employer at each end of the spectrum. Once a tool for promoting loyalty, pensions had been contorted through collective bargaining into a scheme for encouraging early and expensive departures. (From Chapter Two, The Anti-Reuther, pgs. 41-42) |
Any solutions?
National health care:
| Quote: | | A more direct subsidy - a voucher that could be used to purchase insurance - would be universal and thus more fair. Structurally, it could be accomplished by extending Medicare to people younger than sixty-five, with the level of coverage varying according to one's income. People would still shop for doctors and other services in the market, and still have incentives to save (since the subsidy would be limited). A similar system is being tested in Massachusetts, which has launched universal coverage at the state level. ... Probably, a uniform national level of coverage would be best. Congress can no longer avoid the issue, and neither can the current crop of presidential contenders. ... The time has arrived to take Reuther's proposal for government-financed care out of the showroom - and even his fiercest corporate adversary seems to agree. (From Conclusion: The Way Out, pgs. 224-225) |
How does Canada compare?
| Quote: | | It's easy to see the incursions greedy insurance companies have made into our hard-won national health scheme since the dreadful Mulroney-led government, who were not coincidentally the creators of a bilateral trade agreement neither country now favors. A two-tiered system favoring the wealthy who can afford private supplementary insurance is now so well entrenched here that we might easily replace the term, 'American,' in the above ad with 'Canadian' and make the same entreaties! |
Pension reform:
| Quote: | Presidential candidate Hillary Clinton has offered one solution: Washington should sponsor new, national 401(k) accounts and offer matching credits to lower- and middle-income earners. ... But 401(k)s essentially developed in a social and legislative vacuum. The time is ripe to enact similar protective rules for 401(k)s as well. ...
Public pensions ... As Michael Aguirre proposed, states should require (by means of laws similar to ERISA) that every dollar of state and local pension benefits is funded as the benefit is accrued - not when the legislature or city council happens to feel like it. (Ibid., pgs. 228-229) |
Social Security reforms:
| Quote: | | The country would be better served if Social Security functioned like a well-managed pension plan, with each generation supporting itself. This would mean raising taxes and locking the savings away for retirement. ... The payroll tax should be increased, and the federal government should legislate an end to the current practice of "lending" Social Security surpluses to itself. These steps are somewhat similar to what President Bush proposed in 2005 - except that the president also proposed the more extreme steps of reducing benefits and of switching to individual accounts. His plan would have converted Social Security into a national system of 401(k)s lacking any collective guarantee. A well-financed collective system would be better. Indeed, with private corporations increasingly refusing to guarantee their employees' old-age security, the government, to repeat, is the only party that can do it. (Ibid., pgs. 230-231) |
Link to this entry
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editor
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| Posted: Mon Jan 05, 2009 4:38 pm Post subject: |
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A not-so-lighthearted look at how unions killed musical comedy:
America, I Like You
Hardcover
By P.G. Wodehouse
| Quote: | It is the stagehand situation that causes a good deal of the present unrest. This situation - I am speaking of the stagehand situation - is quite a situation. The trouble - briefly - is this. Stagehands cost money, and theatrical managers hate parting with money. The scene-shifter's union, on the other hand, is all for it. Blow the expense, says the sceneshifter's union. It likes to see money scattered in handfuls, always provided it is someone else's (or someone's else, as the case may be). This leads to strained relations, pique on both sides and the calling of some most unpleasant names. I have heard managers refer to the union as vampires, while the union, speaking of the managers, is far too prone to make nasty cracks about people who are so tight they could carry an armful of eels up six flights of stairs and never drop one of them. ...
The union ... holds that if the manager hasn't any scenes to shift he darned well ought to have, and it insists on him employing the number of sceneshifters who would have been required to shift the scenes if there had been any scenes to shift, if you follow me. And as any attempt to brook the will of the union leads to a strike of stagehands, which leads to a strike of electricians, which leads to a strike of actors, box-office officials, gentlemanly ushers and the theater cat, it gets its way. ...
At the risk of becoming too technical, I must explain briefly how a troupe of stagehands with nothing to do is organized. There is, I need scarcely say, nothing haphazard about it. First-chosen by show of hands (stagehands) - comes the head man or Giant Sloth. His job is to hang upside down from a rafter. Next we have the Senior Lounger and the Junior Lounger, who lie on couches - Roman fashion - with chaplets of roses around their foreheads. Last comes the rank and file, the twelve Lilies of the Field. ... (From Francis Bacon and the Play Doctor, pgs. 187-189) |
Link to this entry
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editor
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| Posted: Mon Jan 05, 2009 4:38 pm Post subject: |
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How many unions could and should be reporting similar meltdowns?
China Syndrome
The True Story of the 21st Century's First Great Epidemic
Hardcover
By Karl Taro Greenfeld
| Quote: | CHAPTER 58
. April 14, 2004
. Quarry Bay, Hong Kong, China
. 3,750 infected, 369 dead
There were sixty-one new cases in Hong Kong on the eleventh and two more deaths, forty-nine newly infected on the twelfth, forty-two on the thirteenth, forty on the fourteenth, and forty-two the next day, with nine fatalities. That day, Ka-Kui Kwok, one of our production staffers won about two hundred dollars in the office pool by predicting that there would be forty-one newly infected - the office infection pool was structured like The Price Is Right: you had to be under the number; one over and you would be out of the money. I was always optimistic and tended to lowball the guess, choosing in the twenties. We never established an office pool on the number of fatalities. The WHO would later report, "the case fatality ratio of SARS ranges from 0% to 50% depending on the group affected, with an overall estimate of case fatality of 14% to 15%." (-- pg. 316) |
... and then this:
cbc.ca
Public News Source
Nurses hit by massive theft
July 6/06
| Quote: | The B.C. Nurses' Union says its former director of finance has been fired after admitting to skimming $700,000 from the union during the past six years. BCNU president Debra McPherson says the stolen money was being used to support a "tragic gambling addiction." (emphasis added)
A forensic auditor was called in to go through the union's books after another employee discovered a discrepancy. McPherson says most of the missing money will be returned to the union under the terms of an agreement with the former employee.
"The bulk of those funds will be recovered, about 66 per cent of approximately $700,000," said McPherson. "We also reassured our members that we were taking the recommendations from the forensic auditor seriously in terms of improving the security of our finances."
McPherson says the BCNU has not reported the theft to police, saying it will be up to them to decide whether to press ahead with a criminal investigation. (emphasis added)
She notes the former employee is already being punished, as she has to liquidate her assets to make restitution that will cause "severe hardship for her and her family." |
A few questions we're left with:
| Quote: | Since when are union leaders - fiduciaries to their membership - immune from prosecution for offences that might well land the rest of us in jail?
What about the other whopping 34 per cent of the 'missing' money?
How has this scandal coupled with the reports above of increased absenteeism of nurses due to illness and disability affected the fund from which benefits are drawn? Is the fund sufficient to meet current AND future claims? |
We'll continue to follow the provision of workplace LTD disability benefits at this forum. Please check back soon for updates. If you have a question or comment, please send it to editor@bcdisabilities.com. We'd be pleased to hear from you.
Link to this entry
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editor
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| Posted: Mon Jan 05, 2009 4:44 pm Post subject: |
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The Future of Disability in America
Hardcover
Committee on Disability in America Board on Health Sciences Policy
Institute of Medicine of the National Academies
Edited by Marilyn J. Field and Alan M. Jette
Rating: The Highest! This is the gold standard on what's required and how to achieve it.
Overview:
| Quote: | The future of disability in America will depend on how well the U.S. prepares for and manages the demographic, fiscal, and technological developments that will unfold during the next two to three decades.
Building upon two prior studies from the Institute of Medicine (the 1991 Institute of Medicine's report Disability in America and the 1997 report Enabling America), The Future of Disability in America examines both progress and concerns about continuing barriers that limit the independence, productivity, and participation in community life of people with disabilities. This book offers a comprehensive look at a wide range of issues, including the prevalence of disability across the lifespan; disability trends the role of assistive technology; barriers posed by health care and other facilities with inaccessible buildings, equipment, and information formats; the needs of young people moving from pediatric to adult health care and of adults experiencing premature aging and secondary health problems; selected issues in health care financing (e.g., risk adjusting payments to health plans, coverage of assistive technology); and the organizing and financing of disability-related research.
The Future of Disability in America is an assessment of both principles and scientific evidence for disability policies and services. This book's recommendations propose steps to eliminate barriers and strengthen the evidence base for future public and private actions to reduce the impact of disability on individuals, families, and society. (From IOM website) |
| Quote: | Our conclusions, as detailed in this report, entitled The Future of Disability in America, document the sobering reality that far too little progress has been made in the last two decades to prepare for the aging of the baby boom generation and to remove the obstacles that limit what too many people with physical and cognitive impairments can achieve. Disturbingly, many of the major recommendations contained in the two earlier reports have received little or no serious consideration, and they remain as germane today as they were in 1991 and 1997. This report therefore reiterates several still pertinent goals from the earlier reports and offers new recommendations that, if enacted promptly, could create a future in which Americans of all abilities and ages can participate fully in society.
After reviewing the state of disability in America, the committee concluded that although important progress has been made over the past 17 years in our understanding of disability, its causes, and strategies that can prevent its onset and progression, society must do more now before a crisis is upon us. The chapters in this report cover a broad range of critical topics, including the prevention of secondary conditions, the role of technology and universal design, selected issues in health care organization and financing, as well as the environmental context of disability.
Our society faces several fundamental challenges, which are highlighted within this report. Will this country commit to actions that will limit the progression of physical and mental impairments into disabilities and prevent the development of secondary conditions? Will society provide affordable the development of secondary conditions? Will society provide affordable and accessible health care and technological aids that promote good health and maximize societal participation for people with disability? Will society reduce environmental barriers for people with existing impairments? And will society demand that all levels of government invest in more research, the improved coordination of research, and the need for the enhanced visibility of disability-related research within our public research programs? The answers to these questions will undoubtedly define the future of disability in America and leave lasting legacies for future generations. (From the Preface by Alan M. Jette, Chair, pgs. xiv-xv) |
| Quote: | The trade-offs or choices that Americans make about future spending will reflect their fundamental values about the balance between community and individual responsibility. Still, it should be recognized that health, social, and other policies that assist people with disabilities do not only represent current transfers of resources from those without disabilities to those with disabilities—or from mostly younger people to mostly older people. Over their life spans, the majority of Americans will experience disabilities or will have family members who do. People may not realize it, but the support that they give today for policies that affect future funding for disability-related programs is a statement about the level of support that they can expect at later stages in their own lives. (emphasis added)
This report underscores the growing evidence that disability is not an unavoidable consequence of injury and chronic disease but is substantially affected by the actions that society takes—in the public arena and in commerce and other private domains. Ultimately, the future of disability in America rests with Americans. (Summary, pgs. 9-10) |
| Quote: | [D]isability no longer means a condition, an incapacity, or lack that belongs to a body, but rather a product of the interactions between self, society, body, and the variety of interactions (from political economies to personal commitments) that they engender. Sharon Snyder (2006)
In the last half century, the understanding of disability and the language that has been used to describe it have changed dramatically. Certain language—for example, “handicapped worker”—has largely disappeared. More important, the point that Snyder made in the quotation presented above—that disability is not an individual attribute but an interaction between the individual and the environment (emphasis added) —increasingly informs discussions of disability and disability policy. The Americans with Disabilities Act and other public policies that are intended to eliminate or reduce environmental barriers to independence and community integration illustrate the point. (From Chapter Two, Defintion and Monitoring of Disability, p. 35) |
| Quote: | The number of people with impairments in body structures or functions is likely to grow substantially in the coming years. Unless substantial progress is made in reducing the chances of such impairments developing into activity limitations and participation restrictions, particularly at older ages, the number of people in the United States facing barriers to work, health care, and independent living will no doubt escalate. The number of individuals needing personal assistance, whether it is from family members or from paid caregivers, will also increase. Designing and implementing strategies and policies to promote the health and well-being of people with existing disabilities and to prevent the development or progression of potentially disabling conditions should, therefore, be national priorities. ...
Taken together, these projections suggest that the number of people with disabilities is likely to increase in the coming years, unless steps are taken to reduce the environmental barriers that contribute to avoidable activity limitations and participation restrictions. (emphasis added) The good news is that the rates of limitations for some activities have already been declining for older individuals. As discussed earlier in this chapter, it is not completely clear why this is the case. As discussed in later chapters of this report and as recommended in Chapter 10, further research is needed to identify and disseminate practices and programs that minimize activity limitations and participation restrictions. (From Chapter Three, Disability Trends, p. 95) |
| Quote: | | The transition to adult health care is a complex process that is influenced by the characteristics of the young person, his or her family, and the larger environment of policies and organizational arrangements that affect the availability and coordination of health care services, the sharing of health care information, and the support provided by schools and social services available in the community. As outlined in this chapter, many barriers to successful health care transitions for young people with disabilities are basic features of health care in this country. (emphasis added)These include the fragmented organization of health care services, dysfunctional provider reimbursement methods, the high levels of uninsurance or incomplete insurance (e.g., a lack of coverage for nonmedical consultations and services), and the limited availability of sophisticated information technology to support information sharing among generalists and specialists who care for children with complex health conditions. The limited education of health care professionals in chronic care management is another barrier. In addition, most physicians who treat adults have little exposure to pediatric medicine and thus to the conditions and patterns of care that their young adult patients with disabilities have experienced. (From Chapter Four, Transitions for Young People, p. 133) |
| Quote: | My primary physician and several specialists I respect all practice at a major university medical center fairly close to my home. Recently, though, when I requested a gynecology referral there, I was told that I would not be seen unless I could bring my own assistants to help me get on the examining table. This is a huge world-renowned hospital. This is the era of ADA [Americans with Disabilities Act]. Still I am treated as though I don’t belong with the other women who seek services in OB/GYN unless I can make my disability issues go away. This news makes me weary. I know it means once again that I can’t simply pursue what I need as an ordinary citizen. I can’t be just a woman who needs a pelvic exam; I must be a trailblazer. I must make the many bits of legal information and persuasive arguments it will take to get me into that clinic.
Female power-wheelchair user with postpolio syndrome Carol J. Gill (1993 [used with permission]) (Opening page of Chapter Six, The Environmental Context of Disability: The Case of Health Care Facilities, p. 162) |
| Quote: | After retiring a few years ago, Mr. B led a vigorous independent life until he experienced a major stroke. Paralyzed on his right side, he now needs a wheelchair to move around his house, where he has lived alone since his wife died. The contractor who processes Medicare claims for this kind of medical equipment approved a manual wheelchair, but with his paralyzed right arm, Mr. B cannot self-propel it. He has asked for approval for a power wheelchair, but the contractor—citing Medicare rules—insists on additional documentation that the more expensive equipment is required. All this is time-consuming, complex, and frustrating, even though Mr. B’s rehabilitation team is helping. In the meantime, Mr. B is having difficulty getting around at home, and he and his daughter are worrying about what he will do if his request is not approved.
This story—recounted by an airline employee to a committee member who uses a scooter—illustrates the hurdles that individuals often face in trying to obtain coverage from a public or a private health plan for wheelchairs and other mobility assistive devices. Persistence in appealing denials and assistance from professionals in navigating complex policies and procedures are often necessary when someone wishes to have coverage for particular assistive devices and services approved—and even then, success is not assured. (emphasis added) (From Chapter Nine, Coverage of Assistive Technologies and Personal Assistive Devices, p. 253) |
Link to this entry
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editor
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| Posted: Fri May 01, 2009 12:41 pm Post subject: |
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Insult to Injury
Changes to the BC Workers’ Compensation System (2002-2008): The Impact on Injured Workers
A Report to the B.C. Federation of Labour
By Stan Guenther, Janet Patterson and Sarah O’Leary
April 22, 2009
| Quote: | | Gotta question about disability benefits anywhere in the English-speaking world? E-mail editor@bdisabilities.com. Our motto: We live to serve. |
| Quote: | Executive Summary
In 2002, major changes began to be made to the laws and policies that govern the workers‟ compensation system in British Columbia. Those changes were initiated by the Liberal government after an aggressive lobbying effort by employers. The employer lobby advanced the inaccurate view that the system had become economically unsustainable. The resulting changes were based upon no discernable principle other than that of reducing costs for employers. In that regard, the changes were very successful. But these changes have come at a profound cost to workers and to the treatment and benefits that injured workers receive under the compensation system. The combination of the 2002 legislative amendments, ongoing policy revision, and structural change have resulted in the following changes to the BC Workers‟ Compensation Board (WCB) and to compensation benefits for injured workers:
the effective elimination of pensions based on the actual long-term loss of earnings of injured workers;
the effective elimination of vocational rehabilitation assistance that helps injured workers return to the work force;
appeal processes have become increasingly technical, difficult to understand and inaccessible to injured workers;
functional pensions are now payable only to age 65 rather than payable for life;
benefit rates have been reduced from 75 percent of gross income to 90 percent of net income, resulting in a reduction of benefits by 13 percent;
concentration of power in the Board of Directors, including delegation of power to enact binding policy
and the removal of discretion in decision-making processes;
the reduction of Consumer Price Index (“CPI”) to the rate of CPI increases less one percent and to a cap of four percent in any year, and calculated only once yearly rather than twice;
restrictions on the manner of determining a worker‟s wage rate, primarily to earnings in 12 months prior to injury instead of a flexible or discretionary method;
wage rate determinations early in a claim, leaving errors that can‟t be corrected and are applied later to pensions;
significant new restrictions on compensation for verified psychological injuries;
restrictions on compensation for permanent chronic pain and similar conditions;
inadequacy of functional pensions as they are based on an outdated Permanent Disability Evaluation Schedule (“PDES”) and no review of the PDES schedule has been undertaken; and
restriction of the Board‟s remedial jurisdiction i.e., no ability to review and re-adjudicate prior decisions even if erroneous or to reopen claims where changed circumstances.
The most extreme consequences for injured workers are the effective elimination of loss of earnings pensions and the virtual elimination of vocational rehabilitation services. This has had a profoundly negative economic impact on thousands of permanently injured workers and their families. (emphasis added)
Overall, the WCB has shifted its focus from addressing circumstances of injured workers and instead is focussed on cost reduction for employers, and the removal of important discretionary decision-making has been fundamental to allowing the WCB as an institution to effect this change. The WCB needs to return to a principled and effective compensation system that responds to the needs of injured workers. The authors call on the provincial government to amend the Workers Compensation Act to address the needs of injured workers, including:
reinstate a dual system of pensions for permanently injured workers so a loss of earnings pension is awarded when the injured worker experiences a greater loss than recognized by a permanent impairment pension;
provide for lifetime functional pensions;
recognize that cumulative mental stress and psychological disability are work injuries;
provide that chronic pain is assessed and compensated like other workplace disabilities; and
Restore fair discretionary decision-making at the WCB. |
Notable ongoing challenges:
Chronic Pain:
| Quote: | There is no real barrier to pain assessments. Although chronic pain disability assessments are complex, the civil courts often make these difficult assessments in personal injury cases, such as arise from motor vehicle accidents, and have quantified chronic pain disability like any other injury.
Also, other workers' compensation boards have developed methods to assess this difficult condition. In Ontario, the compensation board has developed special guidelines for chronic pain with an impairment scale running from 0 – 80 percent. (emphasis added)
Courts have also stepped in when other compensation systems have excluded or limited compensation for chronic pain disability. Nova Scotia amended its compensation legislation and regulations to exclude workers with chronic pain from all compensation, except for four weeks of treatment. In 2003, the Supreme Court of Canada ruled that these exclusionary provisions were contrary to Section 15(1) of the Charter of Rights and Freedoms (Nova Scotia (Workers’ Compensation Board) v. Martin and Laseur, 2003 SCC 54). (-- pgs. 21-25) |
Psychological injury:
| Quote: | The 2002 amendment limited compensation for psychological injuries to very restricted situations where the “single” event which caused them was “sudden,” “unexpected” and “traumatic.” In this way, front line emergency workers such as firefighters, ambulance and health care workers and police officers can be denied compensation for psychological injury because of a view that the traumatic events they experience in their line of work are not “unexpected.”
The legislation was also deliberately drafted to exclude from coverage those psychological injuries caused by cumulative or repeated traumas. Medical experts have expressly stated that cumulative psychological injury is just as common, if not more so, than injuries caused by a single event. In BC prior to 2002, psychological disability caused by cumulative trauma or arising gradually over time could be adjudicated as compensable. In Ontario, there is specific policy to provide for coverage of psychological injuries from cumulative trauma.
The wording of this amendment invites a very restricted interpretation and certainly the appeal bodies have treated it as a very narrow door. Psychiatrists confirm that some people may be more traumatized by one particular event than another. However, the WCB and often WCAT will apply an objective standard to decide whether a triggering event was “traumatic” rather than asking if the particular worker was traumatized and injured by the event. For example, a paramedic who develops PTSD after attending an accident which reminded her of her own son‟s fatal accident had her claim denied on the basis that the triggering accident was not “traumatic.”
Much of the law and policy applied by the WCB in this area is in direct conflict with medical/scientific standards. (emphasis added) ...
There are currently a number of challenges to this legislation both at the Human Rights Tribunal and the BC Court of Appeal. (-- pgs. 22-23) |
WCB policy interpreted as binding law:
| Quote: | | ... Under the Section 251 provision, any challenge to the legality of policy is referred to the Board of Directors rather than to an appeal body or a court. A Section 251 referral involves a series of procedural steps to be strictly followed by any participant wishing to challenge a policy provision. The steps include first convincing a WCAT Vice-Chair that the policy is patently unreasonable and unsupported by the statute, and if successful, then convincing the Chair of the WCAT of the same. If able to pass those hurdles, the policy is then referred by the Chair to the very Board of Directors that earlier wrote the challenged policy. In two of three cases of policy that have been referred to the Board of Directors under this process, the Board of Directors declined to alter the policy that had been found by two independent WCAT panels to be unlawful. In one of those cases, the policy was later held to be unlawful by the courts – in the other, a court challenge has not been taken. In both cases, the full process took years. Clearly, the design of the 2002 amendments is to place challenges to the lawfulness of WCB policies beyond the reach of most workers. (-- pgs. 37-38) |
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editor
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| Posted: Wed May 20, 2009 3:53 pm Post subject: |
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'Raise disability benefit rates to a reasonable level NOW!': visitor
| Quote: | From: Barry Goulden
To: editor@bcdisabilities.com
Sent: Tuesday, May 05, 2009 1:29 PM
Subject: Canadian Disability Pensions & Welfare
Dear BC Disabilities,
I hear Michael Ignatieff and the federal Liberals plan to introduce changes to Employment Insurance in light of this recession, to help unemployed Canadians weather the economic storm caused by others, whose greed and mismanagement has brought the world's financial system to its knees.
While they're at it, they should look at reforming and improving the Canada Pension Plan, specifically, disability provisions in the event workers are unable to continue at their jobs. Becoming disabled shouldn't suddenly mean a new life lived in poverty. Since most of the employed do not enjoy a private insurance plan, unless otherwise provided by their employers, they're at high risk for homelessness should they suffer a disability. If the Liberals and/or Conservatives want to really help those truly in need, they'll seriously raise benefit rates above what surely must be considered inadequate in light of today's high cost of living.
For example, a high-school graduate who takes a job at a construction site as a labourer, who then is injured, is eligible for a much more generous Workers' Compensation (now BC WorkSafe) award. However, if this same worker was unable to continue in this occupation due to mental or physical illness, they'd have to rely on either a CPP disability pension (if severe and prolonged), or provincial welfare. This hypothetical case would be lucky to get $500 per month from CPP versus about $939 on BC Social Assistance, based on rates for disability. Whereas a person considered employable would be eligible for just $610 per month, and only after clearing a number of onerous hurdles.
One would be hard pressed to subsist on less than a thousand dollars per month anywhere in the Lower Mainland, never mind trying to survive on only half that much while trying to get back upon one's feet. (emphasis added)
Disabled Canadians deserve more and much better! When they suffer a life-changing injury or illness and can no longer work - they shouldn't be sentenced by their governments to a life of destitution while waiting for subsidized housing that never comes.
How many homeless or marginalized on the Downtown Eastside fit such a scenario? Far too many, I'd be ashamed to hazard a guess.
Sincerely,
Barry Goulden
Richmond, B.C. |
About CPP Disability:
| Quote: | People receiving a CPP disability benefit in 2008 received, on average, about $799.14 each month. The benefit includes a fixed amount that everyone receives ($424.43 a month for 2009), plus an amount based on how much you contributed to the CPP during your entire working career. The most money you can receive from the disability benefit each month in 2009 is $1,105.99. Every January, there may be an increase to the CPP disability benefit to take into account any increase in the cost of living.
Under CPP legislation, your payments start four months after the date Service Canada determined you were found to be disabled under CPP rules. Your monthly payment will usually arrive in the last three banking days of each month. You can consult the exact payment dates. You may choose to have your benefit direct deposited into your bank account.
Your dependent child under 18 years of age, or your child who is between 18 and 25 and who is attending school full time, can receive $213.99 a month in 2009 if you are approved for a disability benefit. Applications for children's benefits are included in the application kit. Your child can only receive a benefit if at least one parent is receiving a CPP disability benefit.
It is important for you to know that the CPP disability benefit is taxable. If you prefer, you may ask us to have your income tax deducted each month. The Income Tax Deduction Request form is now available online. Or, contact us to have it mailed to you.
CPP provides a benefit to all eligible contributors, even if they also receive disability income from other sources. You may be receiving disability payments from a private insurer or from a provincial social assistance program while CPP is processing your application. These other payments may be adjusted if you are approved for a CPP disability benefit. Contact your insurance company or social assistance program for details relating to your particular case.
We do not pay, or have a fund to pay, for any specific expenses such as drug costs, specific devices, etc. There are other resources which may help you. (From CPP Disability accessed online May 20/09) |
Go, Barry!
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editor
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| Posted: Mon May 25, 2009 4:13 pm Post subject: |
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B.C. poverty on the rise BIG-time!
The Vancouver Sun
Welfare cases up 47% in B.C. since last year
More parents and couples able to work but unable to find jobs during recession
By David Karp
May 22/09
| Quote: | More than 10,000 able-bodied British Columbians have been added to the welfare rolls since the recession took hold last fall.
As of March 2009, there were 32,014 welfare recipients capable of working as defined by the government, up from 21,793 in September -- a 47-per-cent jump.
Couples -- with or without children -- capable of working have been especially hard hit by the downturn. The number of two-parent families able to work but receiving income assistance increased 75 per cent between September and March, while the number of couples without children on welfare has increased 67 per cent. The number of employable single males without children on welfare jumped 59 per cent.
... Single parents and single females without children have also been enrolling for welfare in higher numbers -- but the increase hasn't been as steep for couples and men without kids. |
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editor
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Posts: 297
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| Posted: Wed Jun 10, 2009 1:27 pm Post subject: |
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Compared to Ontario's scheme, B.C. disability benefits stink!
| Quote: | | Gotta question about disability benefits anywhere in the English-speaking world? E-mail editor@bdisabilities.com. Our motto: We live to serve. |
| Quote: | From: Hank Shelton
To: editor@bcdisabilities.com
Sent: Friday, June 05, 2009 12:37 PM
I am currently on cpp dissibility and have recently moved to b.c. I was on o.d.s.p. (Ontario Disability Support Program) It took me 2yrs to obtain cpp diss; once recieving cpp diss., o.d.s.p. was automatic. (emphasis added) Now in b.c. I must go through this prosess once again to recieve b.c. dissibility. My question is if cpp diss. is good enough for ontario to reconize my dissibilty, why can't the b.c government? I now am faced with having to have Dr . from b.c. fill out a 23-page report on my condition - a dr. who doesn't know me or any of my conditions. He will inevitably have to go by the reports from my Ont. drs. It makes no sense to me to have to go through this process when all he'll do is read the reports i bring him. I am currently faced with welfare again which is not enough to live on. This may force me to return to Ont. The reason for coming to b.c. was so that my family could help me with my daily living. I have C.O.P.D. severe fibromyalgia in my hand and feet, arthritis and suffer from depression.
I wanted to write this so that you know there are many like me. I am 61 yrs old and totally unable to work. I would choose a job over this anytime if i was able. I know how long the prossess is and i don't believe this would hurry it up. But i wanted you to have my thoughts on this matter.
thanks. |
Our reply:
| Quote: | From: editor@bcdisabilities.com
To: Hank Shelton
CC: editor@bcdisabilities.com
Subject: Re: Your Thoughts - Thank-you!
Date: Fri, 5 Jun 2009 17:46:37 -0700
Hi Shel,
Thanks so much for sharing your comments! May we post them anonymously? You're certainly right in thinking there are many like you and, unfortunately, as Gord and His Filthy Few just received a new mandate, they feel free to legislate and develop policy any which way, including loose! Not surprisingly, perhaps, the sector most likely to feel the brunt is - you guessed it! - people with disabilities. That said, however, are there any inquiries you'd like us to make on your behalf to the local advocacy community? As you can see, we have a paltry few bits of info on depression as well as CFS/ME. How, if at all, might we assist? You know our motto: We live to serve!
Ed.
P.S. We are all firm believers around here in the gentle humor of P.G. Wodehouse. If you haven't read the Blandings series recently, do! We are just on the verge of proposing same to Daphne Merkin, whose story on life with chronic depression in the NYT is included at our riff. Thanks again for writing and our best wishes go out to you! This is a devastating illness indeed. With luck, maybe the good summer weather and gentle geography of BC will assist even if govt won't very much! As Wodehouse might have put it, steady on, you young blot on the family escutcheon! (Can we tell it's Friday?!) |
Back to Shel:
| Quote: | From: Hank Shelton
To: editor@bcdisabilities.com
Sent: Friday, June 05, 2009 8:12 PM
Subject: RE: Your Thoughts - Thank-you!
I am so pleased to find someone who cares and i thank you for wrting back to me so quick. yes you have my permission to post my comments anonoymously i would hope more people like myself would speak out i hope this helps them to do just that. You're very kind to take the time to do this. I find myself worrying the others are far worse off then myself with little hope. I, at least, can return to Ont. and recieve o.d.s,p with no questions asked and no more medical reviews. Others are not so fortuneate. How i feel for them. thank you once again. Hank |
Heads-up on that B.C. application, Shel:
| Quote: | From: editor
To: Hank Shelton
Cc: editor
Sent: Tuesday, June 09, 2009 11:54 AM
Subject: Re: Your Thoughts - Thank-you!
Spoke with a pal last night who suggested you make an appt with the BC Coalition for People with Disabilities to review your application BEFORE you submit it to the ministry to ensure it passes muster. These guys teach the legal and medical community how to fill out these complex forms so this sort of review is their daily bread and butter. It might also be prudent to include in your application any documentation you have from Ontario to show your claim for benefits was accepted there. Although such documentation is not required, it might be helpful. The coalition will also be able to advise you if - hope NOT! - an appeal is necessary. It's a pleasant little office of earnest worker bees who toil amid a noisy cloud of construction on Cambie. There you will at least be among friends.
Best of luck and please let us know if there is anything we might do to assist in any way. We live to serve.
Ed. |
Hank's correct! From the ODSP site:
| Quote: | Does everyone have to go through the Disability Determination Process?
Some people only have to qualify financially to receive Income Support.
You do not need to go through the Disability Determination Process if you:
• receive federal Canada Pension Plan Disability benefits
• receive Quebec Pension Plan Disability benefits
• are 65 or older but do not qualify for Old Age Security
• live in certain types of institutions, such as a mental health facility or a home for people with developmental disabilities. |
Link to this entry
http://www.bcdisabilities.com/bcdisforum/viewtopic.php?p=420#420 |
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editor
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