Feb 242019
 

By Gerry

The State of Nevada has finally got it right in the wacky world of workers compensation by enacting legislation to put the burden of proof on an employer to prove that a work injury is not compensable. Despite the fact that in the U.S. claims are determined based on an adversarial system as opposed to Canada which is supposed to be based on an inquiry system the burden of proof is placed on workers and not on the “Board” which is and always has been illegal and contrary to the Meredith Principles. In Canada, the the whole idea of establishing workers compensation systems was to place the burden of proof on the “Board” both for and against meaning that if causation cannot be established, then the burden of proof is on the “Board” to prove that the injury or disease arose outside the work environment. Had this been been placed in legislation by the Government a hundred years ago who are responsible for the never ending shit show, there never would have been presumptive status provided to firefighters and first responders which is discrimination based on employment. Obviously, the State of Nevada by enacting legislation of this nature do not have to enact legislation providing presumptive status to firefighters or first responders as this bill would include all workers not simply the privileged few. Questionably also is why do we as voters vote in morons to run the province and questions why we vote in the first place when the people running for office are of limited intelligence and then these people select boards, appeals commissioners and other administrative bodies who possess limited intelligence. This is not meant as a criticism of the NDP, it is criticism of all parties and more critical of the Conservative party who run this shit show for years before the NDP took over and at least made a feeble attempt to fix a badly broken system. People would be better off to vote for cockroaches to run the province. 

When I filed a complaint specific to the legislation giving fire fighters and first responders special treatment, I was told by AHRC, employment is not a protected category, therefore it is perfectly legal to discriminate against all other workers on the basis of employment. They explained that in the preamble of the AHR Act, it does indicate that all persons are equal in dignity, rights and responsibilities but in effect if a person is not included in the protected categories, then a person is excluded from being treated equally. This essentially means that all persons are not equal and can be discriminated against despite what is presented in the preamble. What type of morons would enact legislation that protects some people from discrimination and excludes other persons from being treated equally. Why not simply enact legislation creating equality for every one without specifying who must be treated equally and then adding more areas of protection such as age and genetic discrimination, sexual orientation, gender identity, gender expression. Why not enact a simple law making it illegal to discriminate against any one rather than adding more protected categories and leaving out other categories.  

As shown in Nevada, Governments can enact any legislation they choose and if the NDP were sincere in their concern of placing workers first, they would enact legislation that would ensue that workers would not be exposed to the uncertainties of receiving necessary medical care, loss of earnings, vocational rehabilitation. For example: In determining causation Section 24 (4) of the WCA could be changed from“If the personal injury or death of a worker arose out of employment, unless the contrary is shown, it is presumed that it occurred during the course of employment, and if the personal injury or death of a worker occurred during the course of the employment, unless the contrary is shown, it is presumed that it arose out of the employment to “Unless  the contrary can be proven beyond a reasonable doubt, it is presumed that an injury or death of a worker arose out of and occurred during the course of employment” This change in legislation would essentially eliminate any questions as to causation rather than at present where doctors provide medical opinions within a vacuum to lay persons who don’t know their ass from a hole in the ground and deny the claim based on some wannabe doctor who is never subpoenaed and questioned under cross examination. On to the newspaper article;

Nevada lawmakers are now considering a bill that would put the onus on employers to prove a work injury is not compensable, instead of existing law that put the responsibility at the hands of an injured party who has to prove the injury arose within the scope of employment.

A.B. 138, with 22 sponsors and now with the Committee on Commerce and Labor, was introduced Thursday. It flips the current law that “requires that a claim by an injured employee for compensation… be decided on its merit and not according to the principle of common law that requires statutes governing workers compensation to be liberally construed because they are remedial in nature,” according to a legislative counsel’s digest. 

“This bill requires such a claim to be decided under a liberal construction of those statutes in favor of the injured employee or his or her dependents,” the digest states. “Existing law provides that an injured employee or his or her dependents are not entitled to receive compensation under industrial insurance unless the employee or dependents establish by a preponderance of the evidence that the injury arose out of and in the course of employment.”

This bill states that “the injured employee or dependents are entitled to receive such compensation unless the employer establishes by clear and convincing evidence that the injury did not arise out of and in the course of employment.”

The bill also states that an employee’s injury shall be deemed to have arisen out of and in the course of employment unless there is “clear and convincing evidence to the contrary or except  under circumstances where certain statutory provisions establish other standards of proof.”

The bill would also penalize payers who deny claims that ultimately prevail after a requested hearing.