Sep 122012
 

Click on the following link

http://www.canlii.org/en/ab/abwcac/doc/2012/2012canlii49808/2012canlii49808.html

I find it disturbing that simple claims like this one would result in a having to go through the appeals process.

 

When I was involved with Justice Friedman in his investigation of the appeals process as an advisor, one of my recommendations was for full disclosure and based on the methodology of the courts on Judicial Review and Appeal who provide the name of the claimant and the names of the doctors without the anonymity that is inherent in the WCB system. The courts do not consider that the medical information, details of the claim or the identity of the employer, worker and doctors involved to be confidential which should be the case in the decisions posted on Canlii by the Appeals Commission. Also, in the courts, the media and the public are allowed to attend whereas the Appeals Commission will not allow the media or the public to attend an in person hearing. An in person hearing is held in a small room away from any prying eyes and ears of of the public or media which is more like hearings in third world countries, not because of confidentiality but rather to suppress information from the public. A worker is illegally not allowed to have witnesses subpoenaed by the Appeals Commission even if the witnesses presence is pertinent to the case. A worker who is unable to represent themselves and cannot afford legal representation, are represented by people who do not posses the amount of expertise required to argue their case and as well if a worker’s case is denied, the person representing the worker and that includes the Office of the Appeals Advisor, the worker is left on his own to file a Judicial Appeal and Review if the Appeals Commission have illegally denied the claim. If a worker wishes to pursue a Judicial Review or Appeal, they must risk what little they have in assets to pursue a Judicial Review or Appeal while WCB and the Appeals Commission use the money that belongs to workers out of the accident fund for their own private use in fighting a worker in the courts. If the court decides that the Appeals commission be given deference on the facts which is a joke, the worker may also have to pay the court costs of the WCB lawyer and the Appeals Commission lawyers even if they are salaried employees of the Appeals commission and the Board. This is the wonderful system that the Alberta Government has forced onto workers and employers under the guise of a fair system. Nothing could be further from the truth and in reality the government has forced workers and employers into a grossly inadequate and archaic system that does not meet the needs of workers and employers. This is the reason why Justice MacLean in his decision of a badly adjudicated decision of the WCB and Appeals Commission cited as Wilson v. City of Medicine Hat stated that “there is no level playing field” with everything stacked against the worker. Nothing could be truer.

 

Full disclosure and full transparency is required rather than having Case Managers, DRDRB personnel and doctors hide behind the anonymity that is given to them by the Appeals Commission based on their sick ideas of confidentiality. There is nothing confidential about any claim, nor should there be as the public and the media have every right to know the precise details, the people who were involved and the evidence that was used in making their decision. Any confidentiality is suspect as when bureaucrats decide that something should be confidential, they basically are hiding information that they do not want the public to know. I should know as during my time in the military and due to the sensitivity of the security issues that I handled, I was cleared to top secret. Other than a few cases, most of the information that was determined to be confidential was not confidential at all.

 

The cause of CTS and any repetitive trauma injury to the upper extremities was determined in 2002 by the National Academy of Science. There is no medical opinion that can be used to deny a claim when there is one of four factors present in the workplace, that being repetivity, force, cold temperatures or vibration. Any one or a combination of these has a cause and effect basis. Repetivity is measured in therbligs and is considered for simplicity 2 cycles per minute. Force is measured in Newton’s and and is considered to be 4 kg of force which is considered to be high force. Of course 4 kg. of force is different than simply a weight or load of 4 kg. as determining force factors in the distance moved, whether a person is wearing gloves, moist hands, the material being moved, fatigue etc. which could mean that a very small weight moved from one place to another would meet the requirement of 4 kg of force being considered to be high force. Upper extremity repetitive disorders due to biomechanical factors in the work force can be eliminated by enforced ergonomic standards but because of the increased costs to employers, employers choose to deliberately place workers at risk to improve their profitability. No one can argue that I am wrong as I am supported by the NAS, NIOSH and numerous experts like Dr. David Fyhries and Dr. Ashton-Miller who are leading experts in the fields of biomechanics but according to George Pheasy in a claim I represented a worker, their expert opinions supporting causation was determined by this waste of skin to be not as compelling as a local contract doctor for WCB whose diagnosis of the upper extremity repetitive disorder was clinically incorrect according to medical fact, medical literature and medical consensus. Yet, this dumb ass illegally denied the claim based on a misdiagnosis by a doctor who I had to be restrained or I would have crippled him up for life had I not been restrained. Worse yet is the fact that good old George was unaware that the carpal bones are in the upper extremities as was explained by an an Orthopedic Surgeon and other medical experts who also supported the claim but good old George who was given absolute power by the government denied the claim even when his own Appeals Commissioners’ disagreed with him. He finally directed that none of the Commissioners would be allowed to receive any mail or contact with me. That claim is 20 years old and because of good old George, I could not go any further even though the evidence supported causation. This is what absolute power does, it corrupts the whole process.

 

It is imperative that the doctor who provided the false medical information be named and either have his license suspended or not be allowed within WCB’s network of medical consultants. The Case Manager should be identified and either fired or receive training and the same as the DRDRB member who also should be fired or receive further training. There is no need to increase costs to employers by having to go through this Mickey Mouse appeals process when the facts do not support the denial of the claim. When Justice Friedman determined that there was a culture of denial, this would be one of the thousands of claims that should have never been denied in the first place. Being that the buck has to stop somewhere, it is obviously the incompetence or deliberate denials of a claim that is to be blamed.

 

Notably, it is illegal for a doctor to provide a negative medical opinion which did happen in this particular claim. If you go to Para.21.2, this is an example of a negative opinion when a doctor states that the cause of the bilateral CTS is due to non-occupational factors without specifying what the non-occupational factors are. No decision maker can legally turn down a claim when the opposing medical opinion does not explain what the cause is. Furthermore, it is unethical of a doctor to provide a medical opinion that is not based on medical fact, medical literature or medical consensus. In fact, it has been determined that the least compelling evidence is from a medical specialist who is providing his own medical opinion without any reference to medical fact, medical literature or medical consensus. Surely, decision makers who are making life threatening decisions are aware of the law as it applies to the workers compensation system. How the hell can a decision maker believe anything doctors opine if they are all examining the same patient which should result in the same medical evidence but instead results in different medical opinions. How is this possible?

 

The workers compensation system is tort based but does not follow the rigid confines of a tort. The whole reason behind the formation of WCB Boards rather than private insurance as in the U.S., was to eliminate the adversarial approach which defines a tort. A tort is initiated by an originating notice to the defendant by a plaintiff along with a statement of claim. In the insurance industry, a person files a claim for compensation with an insurance company which is precisely what a worker is doing when he/she files a claim with WCB. Under the WCB system when a claim is filed, WCB has the entire burden of proof both for and against causation. The worker and employer do not have to prove anything in the Canadian system as they do not have the legal right by statute WCA 13.1 (1) giving exclusive jurisdiction to the AC to examine, inquire into, hear and determine all matters and questions arising under this Act. Exclusive means that no one or than the AC or the Board has the right to collect evidence by examining and inquiring into a claim for compensation. The “Board” also shares the exclusive jurisdiction under Section 17(1) of the WCA. The burden of proof both for and against thus falls entirely on the “Board”, not on the worker or the employer which results in a conciliatory method rather than a adversarial approach which is prevalent in a tort. Any insurance claim begins with a claim for compensation. For example: I submitted a claim for hail damage on my house. To initiate a claim, I do not have to resort to a tort to have the insurance company provide compensation for hail damage. They send out an estimator and the insurance company pays to have new shingles put on my roof. That is the way an insurance claim is supposed to proceed and not based on the rigid method of a tort system as is being done in the workers compensation system. Also according to WCB Policy 02-01 Part I it states in part; When the WCB is notified of an accident, it initiates inquiries to obtain “all” relevant evidence, and adjudicates the eligibility of the claim based on the weight of that evidence. In the next paragraph it states in part; If, after gathering “all” the available evidence. There is nothing in the WCA or in WCB Policy that states that it is the worker who has the burden of proof which would be grossly illogical as a claim for compensation does not trigger a tort. The burden of proof is put on the WCB and the AC for the simple fact that they are the supposedly knowledgeable body that is supposed to have the medical expertise and financial ability to contact real medical experts instead of Mickey mouse doctors in Alberta who besides negative medical opinions haven’t a clue as to causation. This also goes for Medical Review Panels who have to provide evidence based medical analysis based on medical fact, medical literature and medical consensus rather on their own very limited medical opinion based on their very limited medical experience or knowledge.

 

Getting back to the subject of who has the burden of proof. It is grossly illogical to believe that workers would give up the right to sue in a real court, real judges, juries, and have all the rights of a natural person and then agree to have their claims heard by a government selected group of lay persons with no medical expertise, no legal expertise, being stripped of all their rights as a natural person and then having the government give this group of misfits absolute power. This would be like having patients agreeing to have their surgery performed instead of by experienced surgeons in a hospital and in order to save the health system money, patients would agree to have their surgeries performed by butchers in the local butcher shop. Blue collar workers may not be overly bright but they sure as hell are not that stupid that they would give up their right to sue and then having to still maintain the burden of proof outside the courts in a grossly unfair and incompetent setting decided by lay people who are tasked with attempting to decide whose medical opinion is more compelling. If this was what they agreed to, who in the name of hell was representing workers when this mysterious contractual agreement was signed. Clearly, it must have been an employer who had infiltrated the workers group at that time or perhaps the workers group was represented by some drunken cowboy.

 

There are numerous administrative tribunals in Canada and for some grossly illogical reason, the courts on review or appeal treat all administrative tribunals with the same deference when determining the standard of review, appeal or review and appeal. This makes absolutely no sense as all of the administrative tribunals other than the administrative tribunals in workers compensation systems are tasked with with very simple adjudicative decisions whereas administrative tribunals in the workers compensation system are tasked with extremely complicated medical issues that the doctors themselves are at odds over. How many mistakes or misunderstandings have occurred when assessing impairment or disability is in the thousands and especially so when for decades, no one including doctors knew the difference between an impairment and a disability. At present WCB uses two different guides in assessing impairment with both guides being at odds with each other where workers assessed using the Alberta Guides receive either no impairment or excessive impairment ratings as opposed to a worker being assessed using the AMA Guides. A worker assessed an impairment using the Alberta Guides does not receive an impairment rating by factoring in chronic pain whereas workers assessed an impairment using the AMA Guides receive impairment ratings factoring in chronic pain. This is illegal as under Human Rights legislation and the Charter all persons must be treated equally under the law and before the law. Furthermore if impairment ratings are not used as a precursor in determining disability, they should not be used at all as the workers compensation system was to be used strictly to insure a worker for loss of earnings, not for the difficulties a worker would have performing basic activities of daily living. Employers are getting shafted by having to pay workers for something they were never consulted and then forced to pay millions of dollars for workers who may not have a loss of earnings but have an impairment. Where the hell are the people who we elect who are supposed to be monitoring this pathetic system? The Alberta Guides are and always have been an archaic way of assessing impairment and not disability. Prior to Jan. 1, 1995, the Alberta Guides were called disability guides and after the court decision in the Penny case, silently changed the Alberta disability guides to impairment guides. Workers who were assessed disability ratings prior to Jan. 1, 1995 were defrauded of millions of dollars by assessing their impairment as a disability rating. It is impossible to assess a single disability rating that would apply to all workers simply because a well educated white collar worker performing sedentary work cannot be assessed the same disability rating as a worker with an elementary school education who is performing extremely heavy manual labor. Disability rating includes three factors, the age of the worker, their education and prior work experience. Impairment is a medical term and only measures the functional capacity of a patient and referenced to the difficulty loss of function would have in performing simple and basic activities of daily living. Impairment ratings do not measure a patients ability to work and thus has nothing to do with an earning loss, yet WCB used impairment ratings for decades as a direct means of assessing disability which any reasonable person with half a brain would have known had nothing to do with measuring disability resulting in a loss of earnings. Why is it that the Alberta Government, the police and the Crown are aware that WCB is guilty of criminal fraud and choose not to investigate and file charges?

 

To often claims are denied when the evidence supporting causation is possible and there is no evidence to prove the possible is impossible. For some illogical reason, the claim is denied despite the fact that in the scientific world, if something is possible and no one can prove that it is impossible, possible rises to the probable. The same goes for the word likely. If something is likely and no one can prove that it is unlikely, likely rises to probable until such time that some one can prove that it is unlikely and would thus be improbable. The field of medicine is based more on theory, hypothesis than on medical fact. Most double blind studies results in the use of the word “may” be a causative factor. How does the word “may” fit into the legal system when determining a claim based on the balance of probability and especially when there is no evidence that it “may not” be a causative factor. If a double blind study that results in a “may” situation and the medical consensus is that it “may“, can a decision maker based on the opinion of a doctor who doesn’t agree with the majority of doctors opines that it “may not” or would not be a causative factor. Should workers have to wait decades for the field of medicine to establish fact or should workers be given the benefit of doubt and the latitude as suggested by the courts rather than to deny a claim and then decades later which has happened in numerous cases when medical science has determined the cause to be work related, compensation is paid, far too late to benefit the worker or his/her family. What good does it do to have a system that has caused workers and their families to lose everything they own, live for decades in poverty and then have WCB accept a workers claim decades later based on evidence that initially was found to be possible and no evidence to prove impossible, yet the claim was denied. The whole idea of having workers compensation according to the Meredith Principles was to avoid having a worker becoming a charge on friends, family and society, yet it is the system that forces the worker to become a charge onto family, friends and society because of the inadequacies of the medical field and the denial of WCB to give the benefit of doubt to the worker, rather than making a worker wait decades for compensation after a worker is dead. To add insult to injury, WCB then decides that they will not pay interest on the debt they owe to the worker or his/her family. Who in the name of hell could call this a good system. For who? Clearly not the worker. The people who benefit from the system are the people who work for WCB, the doctors, the Appeals Commission, the Board of Directors and even the courts. Without a culture of denial, there would be less need for the thousands of people employed in the system to ensure that the worker does not receive compensation for injuries, disease or occupational overuse injuries. I can well understand why an MLA suggested to me that the whole system with every one in it should be blown up. I couldn’t have agreed more. If things do not change perhaps some one will literally take up the recommendation of the MLA and do it.

 

Some people may look at the ultimate result, that being that the Appeals Commission overturning the decision of the DRDRB but that does nothing for the claimant who had to wait to receive benefits that she was entitled to from day one. If she was the primary wage earner more than likely she would have lost her house, her car and all of her assets by the time the illegal denial of her claim was overturned by the Appeals Commission. Justice delayed is justice denied. According to the WCA, the President of the WCB is responsible for all personnel, which in reality should be a situation where Mr. Kerr be fired for allowing false medical information to be used to deny a claim by a Case Manager and DRDRB member who should also be fired. A private members bill in B.C. was introduced in the legislature but was defeated specific to paying all claimant’s from the time a claim was filed until the claim went through the appeals process should be presented in Alberta and passed by the legislature but something like this would never reach the light of day because of the extremely poor candidates we elect to the legislature to represent us that probably do not realize that they have the right to present private member bills that would make any MLA’s voting against the bill look bad. Why should workers wait for what could be years and risk losing their homes and other assets simply because either through medical hired guns who deliberately and admit lying on claims and I have absolute proof that two WCB doctors admitted in a civil suit that they did lie involving a claimant’s files which led to the denial of his claim, Case Managers who are incompetent or are under orders to deny legitimate claims, corrupt or incompetent DRDRB members who do the same and incompetent or biased Appeals Commissioners. It is an undeniable fact and subject to a number of studies that Case Managers, DRDRB members and some Appeals Commissioners deliberately deny claims knowing that the claimant does not have the finances or knowledge to sue them or that the Government through legislation protects these crooks. In a democratic country we elect people to enact laws to protect us from the bad guys but under the workers compensation system, the people we elect protects the bad guys by enacting legislation where even if the bad guys break the law, the enactment of legislation protects the bad guys. Even the police will not investigate any allegations against the bad guys because they are directed by the Solicitor- Generals Office not to investigate and the Crown is directed not to lay charges. Change the system, vote in another party who will make changes or simply abolish it.

 

Gerry Miller