Jan 092017
 

by Gerald

Determining causation to have a claim accepted is and has to be the stupidest condition of disability insurance. One hundred years ago causation involved only a half dozen causes and primarily physical causes and a hundred years later we have thousands of causes, both physical, mental and diseases caused by thousands of toxins int the work environment and outside of the work environment. Other than guess as to how or what level these toxins are within safe limits, no one knows what levels are safe or when there are a mixture of toxins, what the risks are. In reality, the system has become a money making scheme  for doctors to guess what the cause may be because medical science lags far behind what is considered to be medical certainty. Workers face a quagmire of unsupported medical opinions that rarely result in established fact resulting in extreme costs to the system for unsupported medical opinions and is why WCB systems have reserves for unfunded liabilities to pay benefits to workers whose claims were illegally denied because the medical opinions were not valid. If in fact medicine was an exact science, there also would be no need to have reserves for unfunded liabilities.

When doctors provide medical opinions that are found to be invalid, there should be consequences with suspensions of their licenses, incarceration, or fines. The same should apply to Adjudicators who use unsupported medical opinions to illegally deny claims. The whole reason why workers are supposed to receive the benefit of doubt is to avoid any mistakes and when there is a difference in medical opinions, the benefit of doubt should be used rather than to beat a dead horse by having more doctors involved who provide more unsupported medical opinions. A system that was supposed to be for workers is under total control of doctors who determine the duration of injuries or diseases and send workers back to work before they have fully recovered, doctors determine work restrictions. Doctors determine whether a worker can perform sedentary work, light work, heavy work. Doctors determine whether a worker has chronic pain or whether workers are malingering.  Doctors determine whether a worker has a psychological diagnosis or if they are faking. Doctors perform functional capacity evaluations that result in severe permanent injuries by forcing workers to perform activities they are not capable of performing. ( A doctor performing a FCE forcefully rotated the neck of a worker I am representing during an FCE and x-rays performed after the forceful manipulation of the neck determined the reason why the worker could not rotate his neck is that the worker had severe cervical spine problems) In actuality the medical costs of all workers compensation systems cost more than the benefits workers receive. Obviously the system has changed over the last hundred years and rather than change the system a hundred years later, the government continues to provide band aids to an ugly and gaping wound.

Lay people especially Adjudicators have this idea that doctors are experts in causation which they are not. Most doctors or all doctors receive their information from medical journals and text books rather than performing any studies of their own. What they read in these medical text books or journal is in many cases not true for the simple reason that there have been many incidences of ghost writers who write medical information in these text books and journals which are not based on any scientific studies or the medical information is written by writers employed by pharmaceutical companies and companies providing toxic materials to retailers who sell this toxic material to consumers. If a person can read and has access to medical libraries, the same information that these so called experts is available in all medical libraries and if a person does go to a medical library which I have done on numerous occasions, you will find doctors researching the same material as a lay person. I have read thousands of pages of medical literature that I was able to read with no difficulty at all in the Foothills Hospital Medical Library where in numerous cases the text books were outdated and had never been revised.

How many people are aware that pharmaceutical companies pay doctors millions of dollars to have their patients act as guinea pigs for new pharmaceutical products that have never been thoroughly tested. Doctors receive new cars, swimming pools, houses etc. to prescribe new prescription medications to unsuspecting patients who take these medications and become deathly ill or die. Take for example Bayers who introduced Baycol as a cheaper cholesterol lowering medication that when taken with gemfibrozil resulting in numerous deaths before it was pulled by the FDA but not before 31 deaths were reported. As with all statins, there is a risk of rhabdomyolysis which can lead to kidney failure and muscle wasting. This is only the tip of the ice burg as no one knows the cause of the interaction between any drug or toxin. Although many toxins when used by themselves pose relatively little danger, when mixed with something else becomes deadly. Mix bleach and ammonia and then get ready to call an ambulance. Take any statin with grapefruit and chances are you also would be faced with a risk of dying.

There are solutions to this hundred year old problem and that is to provide workers in the private sector the same dual disability insurance as workers in the public sector have such as fire fighters, police, paramedics as well as all other public servants by making all employers carry dual disability insurance so that if a claim is not work related, then a worker is not left to fend for themselves. This could be on a cost shared basis just as it is in the public sector. The other option is to abolish the antiquated workers compensation system and make it mandatory that all workers be provide disability insurance without any conditions such as proving causation which in most cases is impossible as no one knows what causes any medical condition as genetics always play the biggest role in all medical conditions whether psychological or physical. WCB could continue to provide disability benefits for all workers. This could also be on a cost sharing agreement between employers and workers thereby eliminating paying millions of dollars to doctors for unsupported opinions and also significantly reducing the number of employees in the workers compensation system and as well reducing costs to employers.

I must admit that I always had difficulty as to how presumption is supposed to work in all workers compensation systems and in review of workers compensation systems across Canada, I finally have figured that out by reading various decisions from WCAT and especially those that use Dr. Terence Ison’s book “Workers Compensation in Canada 2nd Edition”. It seems that New Brunswick is one of the only provinces in Canada that relies on Dr. Ison’s explanation of how presumption works. All claims begin in a neutral state and some one has the burden of proof but no one knows whether it is the “Board” as suggested by Dr. Ison or the worker. Whoever has the burden of proof in determining causation must trigger the presumption by determining on a de-minimus standard  meaning that to support causation, there only has to be a very trivial relation to the work environment. This then triggers the presumption that then has to be contradicted by some one, either the “Board” or the employer which again is unknown who then has to prove that the injury or disease arose outside of the work environment by specifying the risk outside of the workplace along with the time and place. According to WCAT decision derived from Dr. Ison’s book as a legal guide, it is illegal to provide a negative opinion without supporting evidence that would provide the risk factor and the time and place the accident occurred outside of the workplace. All of this makes sense when explained by well trained WCAT members in workers compensation law using Dr. Ison’s explanation of how presumption is triggered. Unfortunately in Alberta there are no well trained Adjudicators as witnessed by the number of claims that are denied as opposed to the number in New Brunswick that have been over turned by the New Brunswick WCAT because the the de-minimus standard was successful and there was no evidence to the contrary. Obviously something is rotten in Alberta when claims are denied without knowing who has the burden of proof, what is considered to be de-minimus and if successful triggers the presumption, who then must prove contrary and what evidence is required to prove contrary. While there are numerous decisions supporting my interpretation, rather than citing a two or three hundred WCAT decisions, if you go to Canlii and click on the following links  http://www.canlii.org/en/nb/nbwcat/doc/2016/2016canlii88896/2016canlii88896.html?resultIndex=1 

http://www.canlii.org/en/nb/nbwhscc/doc/2016/2016canlii54508/2016canlii54508.html?resultIndex=1

After review of 103 decisions made by the New Brunswick WCAT by inputting Dr. Terence Ison in the document text area on Canlii, I received 103 decisions specific to my search specific to Dr. Terence Ison as my search criteria. Out of the 103 decisions there were 88 appeals accepted and 15 denied which I have reviewed and agreed with the decisions. The number of appeals accepted results in an acceptance rate of approximately 85% as compared to the Alberta Appeals Commission acceptance rate of appeals that is considerably lower than 50% which I suspect is due to the fact that the Alberta Appeals Commission do not understand how presumption is defined by the courts. Both the New Brunswick WCA Section 7 and the Alberta WCA Act Section 24 (4) are identical so how then can two different Appeals Tribunals interpret the “Acts” differently   I will be reviewing other WCAT decisions in other provinces as to how they interpret their presumptive legislation and will send my review to all my e-mail contacts.

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