Jun 192018
 

By Gerald

On June 12, 2018, I filed for a Judicial Review on behalf of a worker who was illegally provided impairment ratings that were used as a direct method of rating disability and subsequent loss of earnings. WCB, DRDRB and the Appeals Commission were advised by the Alberta Court of Queens Bench and supported by the Alberta Court of Appeal in the Douglas Penny case (1993) that the WCA is specific to determining disability, not impairment and using impairment ratings as a direct method of rating  a disability without converting the impairment rating to a disability by considering a workers individual and unique characteristics, specifically age, education and prior work experience was not in compliance with the Alberta WCA. The Appeals Commission appeal this decision by the Alberta C of QB to the Alberta Court of Appeal and can be found on Canlii. It was upheld by both Alberta Courts that the WCA specified that workers were to receive compensation based on the degree of disability, not on the degree of impairment.

Specifically, you cannot use the words “impairment” and “disability” interchangeably as both have different meanings. An impairment is a medical term as opposed to a disability which is a legal term and explained by the Yukon Courts in a Judicial Review of the Yukon WCB using impairment ratings as a direct method of rating a disability. The Yukon Supreme Court agreed with the Alberta C of QB and the Alberta Court of Appeal that doing so is not in compliance with he WCA  As I shall explain in simple layman’s terms, Section 43(1) of the WCA states that the evaluation of a workers disability shall be made on behalf of the “Board” by one physician and one claims adjudicator employed by the “Board” This directs that a physician on behalf of the “Board” provide the impairment rating which is the first step. Using the impairment rating as a “guide or reference, the claims adjudicator then must convert the impairment rating to a disability rating by considering the type of injury that resulted in the impairment ratings and then convert the impairment rating to a disability rating. For example: If two workers received an impairment rating for an amputation of a lower extremity, (ankle) both would receive a whole person impairment rating of 25% by the physician on behalf of the “Board” The physicians job is finished and the next step is taken by the claims adjudicator who then applies the impairment rating to the individual. If the individual does not incur a loss of earnings (interpreted by WCB as a disability) because of the amputation of the ankle, the impairment rating becomes a moot point and that individual receives no disability rating or subsequent loss of earnings. On the other hand if an unskilled, poorly educated worker, performing heavy manual labor has their ankle amputated, this would result in having the impairment rating converted to a disability rating (loss of earnings) by the claims adjudicator to determine the Section 56(7) lifetime pension of the individual. There is nothing difficult in interpreting the responsibilities of WCB in providing compensation for a disability. WCB by statute (Section 69) do not have to provide any compensation for an impairment regardless of whether the injury occurred prior to Jan 1, 1995 or after Jan 1, 1995.

Questionably is why would WCB provide lifetime pensions to workers who had no disability, no loss of earnings but had difficulty attaining an erection, difficulty urinating, defecating, reaching an orgasm which is what impairment ratings are based on as impairment ratings exclude “work” as a reference in assessing an impairment. Impairment is strictly based on difficulties in performing simple basic activities of daily living. questioning further is why should employers pay into a sick system that provides life time pensions to workers who are not disabled, have no loss of earnings but have difficulty getting an erection, difficulty reaching an orgasm,defecating, urinating, brushing their teeth etc.

This was all determined by the Alberta Courts in 1993 and WCB, DRDRB and the Appeals Commission continued to use impairment ratings as a direct method of rating a disability despite the Alberta Courts decision that went against the Appeals Commission questioning why the former Justice Ministers selected by the Conservative Government did not direct that WCB, DRDRB and the Appeals Commission comply with the decision of the Alberta Courts and obey the law by using impairment ratings as starting point or a precursor in determining a disability by taking into consideration the age, education and prior work experience of the individual worker which is the only method that is supposed to be used in determining disability as impairment ratings do not measure an individuals ability to work as work is excluded in the evaluation of an impairment.

According to Section 3 of the WCA, the “Board” has the capacity and the rights, powers and privileges of a natural person, yet they are not held to the same legal standard as all natural persons who cannot break the law, criminally or  civilly and then claim they made a mistake. If any natural person makes a mistake criminally or civilly, they are held accountable, can be incarcerated or sued, yet WCB, MRP, DRDRB, and the Appeals Commission cannot be held accountable when they misinterpret a statute to protect the accident fund which has been the primary purpose of WCB, WCB BoD, the Government, DRDRB and the Appeals Commission. It is nearly impossible to prove that a claim was denied intentionally or with malice and when mistakes are made by adjudicators who are jokingly believed to be experts when in fact they have no expertise at all in medicine or law. Questionably are these people stupid, totally incompetent and may have made an honest mistake, then why are these people adjudicating claims if they have no idea what they are doing. Obviously, the buck stops at the top in the adjudication of claims and at the top of the heap is the Appeals Commission who should know precisely the enabling statutes, regulations and the purpose, philosophy and appropriate use of WCB policies which have to comply with the WCA. As well the Appeals commission also must adhere to legal precedence which they do not adhere to a witnessed by the fact that the Appeals Commission have never questioned WCB policy specific to chronic pain which is not in compliance with section 15 of the WCA. If not for the protection of the accident fund by Mason and Smallwood (Former Chief Commissioner of Alberta Human Rights and Smallwood who was the former Director of Alberta Human Rights) who despite objections from the Southern Regional Director, Alberta Human Rights Legal Counsel dismissed my complaint specific to the decision of the SCC in the Martin/Laseur case involving chronic pain. Question is; were Mason and Smallwood corrupt or were they simply ignorant.

An interesting survey was conducted in the U.S. that found that claims that were denied illegally costs almost double the claims that were accepted and f the claims that were illegally denied, over 67% of the denied claims were over turned by the various state courts. A same study done in Alberta would result in the same findings. Unfortunately, the Alberta Government have not enacted legislation that would force WCB to pay compound interest on long term claims that were illegally denied rather than WCB at present pay simple interest which in the real world does not happen. When claims are illegally denied, a worker should receive compound interest on the back pay and as well punitive damages of at least a half million dollars. In reality, Norrie, Carpenter and Cunliffe during their review of the “Act”, WCB policies, regulations etc., and who obviously knew very little about how the system operates only touched on very minor or inconsequential problems that face workers in what is a hostile environment after they are injured.

We have a Justice Minister and a Minister in charge of the WCB and yet neither one of these individuals ever review legal precedence by Alberta Courts or other provincial courts when the decision goes against the Appeals Commission or WCB who continue to circumnavigate the law by not complying with the decisions of the courts which include the SCC. Ambiguity and convoluted policies present decisions that question the mentality of the people who are involved in the process. For example: when adjudicating a claim, the legal standard in workers compensation systems is “balance of probabilities”which is the legal standard in the civil justice system, yet WCB goes beyond the legal standard by enacting policy that causation for occupational diseases and injuries must be based on a higher standard than in criminal law. WCB Policy 01-01 Part II Application 2 Question 4 that states per verbatim;  WCB requires scientific evidence of a causal link to the workplace before accepting responsibility for an occupational injury or disease. WCB Policy 02-01 Part II Application 7 Question 7 states per verbatim; “when an occupational exposure has been established, a relative risk of 2.0 or higher makes it more likely than not that the workers occupational exposure materially contributed to the workers risk of developing the disease” Scientific evidence WCB refers to is based on epidemiological evidence by comparing an occupational group to the general population and if the occupational group has twice the risk as the general population, then the claim may be accepted thereby creating a higher legal standard for occupational disease or injuries that are not in compliance with the SCC decision cited as British Columbia (WCAT) v. Fraser Health Authority where the SCC made it quite clear that causation is not to be based on a higher legal standard, (scientific proof) and must be adjudicated on common sense and logic which is supposed to be used in determining a balance of probabilities.  This questions why firefighters and first responders had to meet this higher standard of proof which in essence is discrimination under Alberta Human Rights Legislation and Section 15 of the Charter by having occupational diseases meet a higher standard than acute injuries. Clearly when there is no evidence either for or against in the workers compensation system, the benefit of doubt always goes to the worker but in Alberta, it never does.

With the findings and recommendations of Norrie et al, it is apparent that the system did not work and has not worked for decades, workers were being treated with contempt, disrespect and atrocities beyond any human comprehension. The problem is that the NDP by phasing in the effective recommendations and making the legislation effective on Dec. 15, 2017, Jan 1, 2018, June 1, 2018 and Sept. 1, 2018 should have grandfathered the legislation retroactively to include workers whose claims and benefits were illegally denied. Why would any Government when they know that workers have been abused by the system as was found by the previous Friedman and Doerkson investigations and now the Norrie et al investigation for decades prior to the new legislation exclude workers and their families from getting the benefits they were entitled to by ensuring that the administration of justice must be done or seen to be done. Obviously by not providing retroactive legislation, the Government is simply protecting the accident fund to ensure employer premiums would remain stable even if it was on the backs of workers whose injuries occurred prior to the new legislation.  This in effect indicates that the NDP could care less how workers were treated prior to the effective dates. This leaves those workers who claims occurred before the effective dates no other choice but to sue the Government and WCB for these atrocities that occurred prior to the effective dates.

The Judicial Review that I am going forward with would support any accusation and subsequent civil suit of misfeasance in public office along with other obvious acts by WCB, DRDRB and the Appeals Commission that can be factually proven such as illegally clawing CPP disability benefits from workers whose CPP disability benefits were provided for pre-existing non compensable injuries or clawing back all of the CPP disability benefits for work related injuries when the worker has paid 50% of the premiums. This money clawed back from CPP disability benefits subsequently goes into the accident fund to reduce premiums paid by employers which is not in compliance with the historic agreement. There is also the issue of not providing any benefits for chronic pain other than treatment as workers diagnosed with chronic pain do not receive vocational rehabilitation or any monetary reward if they do not receive a PCI rating for chronic pain which is not in compliance with the SCC decision in the Martin/Laseur case. There also remains the fact that it is illegal in the workers compensation system to put the burden of proof on a worker when the original intent of the Meredith Principles was to have an independent and neutral “board” who had exclusive jurisdiction to investigate  and gather the facts. Rather than WCB investigating and gathering the facts, workers are placed in the impossible situation of proving their claim which is the basis of the American system which is based on an adversarial system. Over the years with the assistance of Government, WCB has destroyed what started off as a good system whose main and only intent was to care for injured workers so they did not become a charge on family, friends and society. The main intent now is to protect the accident fund by deliberate acts of fraud and misfeasance by the Government, WCB, DRDRB, Appeals Commission, Alberta Human Rights Commission and the Office of the Ombudsman.

I will subsequently and in my own good time explain the issues of illegal CPP disability claw backs, chronic pain, illegally placing the burden of proof on workers, not giving the benefit of doubt to workers when this also was the intention of Meredith and which essentially separates the civil justice system from the workers compensation system. Basically, no matter how much lipstick you put on a pig, at the end of the day, the pig is still a pig.

  13 Responses to “Judicial Review of using impairment ratings (PCI ratings) as a direct method of rating disability (PPD or PTD)”

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