Dec 102018
 

By Gerald

According to the historic agreement, adjudication within the workers compensation system is supposed to be based on an inquiry system, not an adversarial system. At some time in the past, this all changed from an inquiry system to an adversarial system. Rather than a worker being a claimant, they are considered to be the person bringing forth an action as a plaintiff. No one including Notley, Gray, Ganley or the former Conservative Government would explain or define what an inquiry system is based on.

I have had over the last several years, had to argue that the burden of proof is on the Board with Case Managers, DRDRB and the Appeals Commission who are adjudicating claims based on civil law which is clearly the incorrect legal standard in workers compensation.  Yesterday, I talked to a Case Manager who in a case I am representing a worker argued that the burden of proof is on a worker, not the Board. I attempted to explain to her how an inquiry system is supposed to work and she said that has has no idea what an inquiry system is and that all her colleagues place the burden of proof on the worker despite the WCA and WCB policy that clearly places the burden of proof on the Board. I have had that same argument  presented to me by a senior member of the Appeals Commission during a heated discussion at an in person hearing, who is a lawyer and oddly enough makes over $175,000.00 a year as a hearing chair. Her argument was quashed at a Judicial Review by a Court of Queens Bench Judge who had to explain this to the Appeals Commission’s and WCB’s legal counsel how an inquiry system works and how it differs from civil law. 

A number of years ago, I had a letter from a former Minister in charge of WCB who told me that WCB rarely if ever performs any investigations involving a claim because it was to time consuming and expensive thus resulting in numerous claims being denied because WCB did not do their due diligence to perform any investigations and when the claim was illegally denied, the blame for not providing the evidence was placed on the worker who they claim has the burden of proof, not WCB. 

Oddly enough, the Appeals Commission when a worker requests to subpoena a witness or witnesses, the Appeals Commission refers to the Alberta Rules of Court which are rules for civil procedure where a plaintiff who brings an action has to pay for the attendance of witnesses which they should. Why should workers have to pay for the attendance of witnesses when WCB can have witnesses subpoenaed and have the witnesses conduct fees paid out of the accident fund. Questionably is why  WCB Medical Advisors who are the worst offenders when knowingly providing false medical evidence do not have to sign an affidavit to swear that the evidence they are submitting is true and when it is proven to be false, they should be charged and imprisoned.Section 151.1(1) does make it illegal for any one to provide false or misleading information to the Board and that would include their own employees. According to Section 152(1) of the WCA a person can be fined up to a maximum of $25,000.00, a further fine of $10,000.00 a day if the offense continues or in lieu of a fine be imprisoned for a period not exceeding 6 months. Problem is that we have a Justice Minister that would not allow charges against any one in the system, thus negating the WCA. What is the point of enacting laws if these laws are not used to punish people for contravening the law. 

While it cannot be disputed that WCB places the burden of proof on workers, the Appeals Commission also places the burden of proof on the worker. This fact is presented in their rules specific to reconsideration where they do in fact undeniably place the burden of proof on a worker. This is proven by the Appeals Commission stating that “with due diligence, the evidence could have been presented at the previous in person hearing. What evidence could be presented when WCB has exclusive jurisdiction to gather the facts and their own policy directs that they perform a thorough investigation to gather the facts. A good example of this is in a case where a Case Manager lied about the employer offering modified work and the employer and worker both presented evidence that there was no offer of modified work. WCB and the Appeals Commission acknowledged that modified work was never offered but refused to pay the worker the loss of earnings he was entitled to and had been directed by the Court of Queens Bench to pay the worker $9000.00 in earning loss. This was refused by the Appeals Commission who should have complied with the Judge, sent the claim back to WCB and direct that this sum be paid. Instead, Wispinski, the now head of the Appeals Commission represented the Appeals Commission which questions her ethics and sense of decency to represent a body who would defraud a worker from what he was entitled to and his entitlement had been determined by a Judge. The second incident I was involved in and still am is specific to concurrent earnings.  The worker at the time of her injury had two sources of income and WCB did not investigate contrary to the WCA and their own policy. and using only the one income to determine an ELP. Once this was brought to their attention, they denied the second concurrent earnings because they believed that the worker had the burden of proof to provide this evidence. Most, if not all workers have no idea what concurrent earnings are and would not have the knowledge to question WCB as to why only their earnings from the accident was used to determine a loss of earnings. Gathering this evidence is the sole responsibility of WCB, not the worker. These are fundamental questions that WCB must ask a worker during the course of their investigation.  

In reviewing the revised WCA, it appears in the preamble that the purpose of the workers compensation system is to provide appropriate compensation to workers and the central focus of the workers compensation system is the health and well being of workers, this is a lie and is proven to be a lie based on my own personal experience in the workers compensation system. The central focus of all workers compensation system is to protect the accident fund to maintain low premiums for employers to encourage or maintain employment. Accepting claims and benefits destroys jobs and the economy as opposed to denying claims and benefits that increases employment and the economic benefits of low premiums. What was considered the “grand bargain”is not and has not been a grand bargain for workers but has been a grand bargain for employers who cannot be sued and have their premiums subsidized by tax payers who pay taxes and these taxes are used to provide income support for disabled workers through social assistance. As well, Alberta Health Care provides medical care and benefits for disabled workers. No one can deny that this is not true. If it was not true, then then why are there so many disabled workers on social assistance. If a person can name one, one is too many and when naming one, some one else could name other disabled workers who are on social assistance. Why is the Government so secretive about this. Perhaps this would be a request submitted to FOIP. Obviously, the Government knows when a person applies for social services what medical condition they have that is considered to be prolonged and severe and whether the injury or disease is work related or not work related..

If in fact, the Fair Practice Office does determine that the Board has the burden of proof in an inquiry system, the only remedy is to re-adjudicate all long standing claims on the correct legal standard and in compliance with Section 157.1 rather than to continue to believe that the Government and the courts should provide deference to the Appeals Commission when they have been adjudicating claims on the wrong legal standard. While it is not surprising that Case Managers and the DRDRB  would not be expected to understand the difference between an adversarial system and an inquiry system, Appeals Commissioners who earn close to two hundred thousand dollars a year should not be pleading that they were making honest mistakes by using the incorrect legal standard when adjudicating claims.

WCB is sending a message to workers who have long standing claims that to have their claim accepted or to receive any benefits, that a worker must commit suicide, threaten to commit suicide, attempt to commit suicide or threaten to kill WCB employees or Appeals Commissioners. Gregory Jacks committed suicide and WCB apologized to his family and provided compensation to his widow. Another fellow set himself on fire and received compensation. Patrick Clayton threatened to kill WCB employees and was sentenced to prison. When he got out, he received compensation for his work related injuries which indicates that had WCB provided him with compensation he was entitled to, he would have not of had to threaten to kill WCB employees and then be sentenced to prison. I have a copy of one of his checks for fifteen thousand dollars presumably for a NELP as WCB did not explain what the fifteen thousand dollars was for with several hundred thousand dollars still coming in for an ELP. Obviously this should indicate to workers that to receive their entitlements, they have to either commit suicide, threaten to commit suicide, attempt to commit suicide or get a shot gun, take hostages and threaten to kill WCB employees. 

Rather than continue beating my head against a wall arguing with Case Managers, DRDRB and the Appeals Commission, I sent the following letter to the Fair Practice Office who now have to explain what an inquiry system is and who has the burden of proof in an inquiry system.

Fair Practices Office

Braithwaite Boyle Building

602 1701 Centre Street NW

Calgary, Alberta

T2E 7Y2

Dec. 3, 2018

This is a question that needs answering. Workers compensation in Canada is based on an inquiry model, not an adversarial model. There is no one who disagrees that workers compensation is based on an inquiry model, yet there is a reluctance by WCB, DRDRB, Appeals Commission or the Alberta Government to explain how an inquiry system works. The question that seems to be evasive is “who has the burden of proof in an inquiry based system”.

The gold standard for adjudicating claims in Canada is found in Dr. Terrence Ison’s book Workers Compensation in Canada 2nd Edition. According to Dr. Ison who was Canada’s foremost expert on workers compensation systems who is now deceased, he states in his book, “The Acts provide for an inquiry system, not an adversarial system. There is, therefore no burden of proof on any one except the Board. In common law litigation, it is normal to place the burden of proof upon the plaintiff and in medical science, the negative is commonly assumed from the absence of positive data. Neither of these approaches is appropriate to a workers compensation system operating in an inquiry model. The worker, the employer and the attending physician are responsible for supplying information to the Board which is within their power to provide. With regard to any other information that may be required, the obligation rests with the Board to make the necessary inquiries. The absence of any evidence on any point leaves the adjudicator in a neutral position that calls for further inquiry. It is not a ground for any particular conclusion. Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternate cause and evidence that the employment was not contributory”

In the workers compensation system in Canada, adjudication by WCB, DRDRB and the Appeals Commission is therefore not based on the correct legal standard as the burden of proof has been placed on the worker as evidenced by numerous decisions of the Appeals Commission. As noted by the SCC adjudication in workers compensation systems is based on a lesser standard than civil standards, which ranges from a trivial contributory factor to a balance of probabilities. If a claim remains in the neutral state, the benefit of doubt is supposed to go to the worker. Many claims submitted to WCB have unknown etiologies which should result in a neutral state but the claim is denied despite no evidence to the contrary. If in fact it cannot be determined whether an injury or disease arose out of and occurred in the course of employment, WCB must provide an alternate cause as the negative cannot be assumed from the absence of positive evidence.

On Judicial Review where I was allowed to represent a worker, Justice Bruce Millar had to explain to the Appeals Commission Legal Counsel and WCB Legal Counsel that in an inquiry based system the burden of proof is on the Board and not on a worker. This decision is not on Canlli but I have the transcript of the action and Justice Millar’s explanation. This question was also asked to the Office of the Ombudsman and the Ombudsman also verified that in an inquiry system the burden of proof is on the Board.

Section 17(1) of the WCA provides exclusive jurisdiction to the Board to examine, inquire into, hear and determine all matters and questions arising under this Act. Read correctly, only the Board has jurisdiction to gather evidence and it would be contrary to the Act for a worker to gather any evidence which thus would prohibit a worker or an employer from having any burden of proof. Section 17(4.1) also provides direction to adjudicators that when a claim remains in a neutral state, the benefit of doubt goes to the worker. Section 20 of the WCA also gives WCB all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act. Questionably then with absolute and exclusive jurisdiction to gather evidence, how then could the burden of proof be put on a worker or an employer.

Adding to this is WCB Policy 02-01 Part I, it states in part, “When 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” Interpretation 4 of the same policy then states “if the information received on the required reports is not sufficient to adjudicate the claim, WCB is responsible for gathering additional evidence relevant to the claim”This then is contradicted in WCB policy 01-03 Interpretation I where they state “A worker is not required to prove beyond any reasonable doubt in support of a claim for compensation” This would indicate that the worker is required to bear the burden of proof which in essence is typical of an adversarial system and not an inquiry system where the burden of proof is on the Board.

Going into this further, it is apparent that the “but for” test and “material contribution” test that is used in civil law is being applied in the lesser standard of proof in the workers compensation system. This can be found in WCB policy 02-01 Part II Application 7. Curiously, when reading this policy, WCB places the civil standard on themselves as having the burden of proof, yet when adjudicating a claim, they place the burden of proof on workers. Even in civil law, the burden of proof is shifted from the plaintiff to the defendant if the defendant is more knowledgeable then the plaintiff. Refer to the SCC decision cited as Snell v. Farrell. This case was also based on precedence cited by McGhee v National Coal Board. Clearly, WCB is the knowledgeable party, has exclusive jurisdiction to gather the facts and yet places the burden of proof on workers with no burden of proof on employers questioning what system are adjudicators using, an inquiry system and a lesser standard of proof, an adversarial civil standard where workers filing a claim are considered plaintiffs without any defendants as employers rarely bother to get involved resulting in WCB representing employers as the defendants. This being said, how then would workers have the burden of proof. This is an extremely important question that has to be answered as the Fair Practice Office has a responsibility to ensure the correct legal standard is being used when adjudicating claims.