Nov 032018

By Gerald

My last post specific to burden of proof has gained a lot of interest
and requires further explanation. Even in civil cases, a plaintiff does
not always bear the burden of proof. It depends on who you are suing. If
you sue a member of the general public who is not considered to be
knowledgeable, you have the burden of proof. If you sue a person who has
more knowledge than you, the burden of proof shifts from you to the
knowledgeable person. This was determined by the SCC in a case cited as
Snell v Farrel.  When filing a claim with WCB, they are the
knowledgeable party and by law, they have the burden of proof even if
civil standards are used in adjudication. At no time does a worker of
employer have any burden of proof, it is always on the supposedly
neutral party and that means that the burden of proof is on WCB, DRDRB
and the Appeals Commission. Before becoming an Appeals Commissioner, I
would think that all AC should have to pass the basic criteria of
administrative law that is specific to the workers compensation system
and the Meredith Principles. I suspect that all Appeals Commissioners
are not selected for their expertise in law, medicine and common sense
but for their political associations as most or all of them are dumber
than a door nail.

Most workers do not know that they can request an in person hearing at
the Case Managers level. Case Managers have the same powers as the Court
of Queens Bench and a worker has the right to request a notice to attend
and have the Case Manager subpoena a doctor or doctors who are involved
in a piss fight on conflicting medical opinions. You do not by law need
to wait to subpoena witnesses at the Appeals Commission level. In many
cases workers spend a piss pot full of money to pay lawyers and
advocates to represent who pass themselves off as experts when they know
diddly squat about the system. I am seriously considering even at my age
representing workers on a strictly contingency basis with no retainer
and no costs to the worker which I have been requested to do by workers
and for that matter also employers who are paying into a system that is
totally corrupt as evidenced by employers paying life time pensions to
workers who did not have any loss of earnings which can be easily proven.