May 232019
 

By Gerald

Your response as to who has the burden of proof

(Read the response: Page One Page Two)

Dear Mr. Robinson;

While I appreciate the response from you as to who has the burden of proof in the workers compensation system, I question your response. As you know or should know, I believe in total transparency in any of my communications as there is nothing confidential nor should there be with any correspondence specific to WCB issues so I will send your response to all of my many e-mail contacts. From the FPO website your CV states, https://fpoalberta.ca/about-us/fair-practices-commissioner/ 

it would appear that you are somewhat qualified in administrative law but have no experience or background in administrative law that is specific to workers compensation administrative law that is vastly different than other administrative laws. As you know or should know, adjudication of claims is based on an inquiry system, not an adversarial system and therefore the burden of proof both for and against is on the “Board”.  Unfortunately for workers, adjudication is and has been based on an adversarial system rather than an inquiry system which is and always has been illegal. Your reply that the FPO does not provide legal advice is concerning as if the FPO is to assist workers and employers, then it is your responsibility to ensure that the correct method is used and understood by workers and employers who must be aware of who has the burden of proof both for and against in an inquiry based system unless you are concerned that if this was common knowledge that the FPO would be redundant and you all would lose your jobs. Is it thus better for you to keep workers and employers in the dark than to enlighten them with what should be common knowledge. 

Alberta’s workers compensation system is over 110 years old and from the time that the system first began, every one filing a claim should have known who has the burden of proof. In criminal law, every one knows that the burden of proof is on the Crown. In civil law the burden of proof is usually on the plaintiff although in some civil claims the burden of proof can be shifted from the plaintiff to the defendant according to the Supreme Court of Canada. It is grossly illogical to have a system that has been in existence for 110 years and you, WCB, DRDRB and the Appeals Commission do not know who has the burden of proof when the most important question in any legal system is who has the burden of proof.

Unquestionably, the determination of who has the burden of proof both for and against is the most crucial or one of the most important part of the adjudication process. Had this issue been determined decades ago, there would have never been any need for presumptive status for first responders. In every claim, as long as a claim remains in a neutral status, presumption takes effect and the benefit of doubt is historically always to have gone to the worker which is the way it was supposed to happen but because adjudication some how over the years took on an adversarial standard where the worker had to prove a work related injury or disease,  the benefit of doubt went to the “Board”. 

If a person reviews WCB policy 01-03 Part I Int. 3, the policy states that a worker does not have to provide any proof beyond a reasonable doubt. In an inquiry based system a worker is not required to provide any proof, that is the sole domain of WCB according to the WCA Section 17 (1). Policy 01-08 Part I specific to new evidence. What new evidence? If the burden of proof is solely on WCB and they have performed a thorough investigation, there should not be any new evidence and any new evidence should result in disciplinary action against an adjudicator who was not responsible for gathering the evidence. Taking this further, in the Appeals Commissions Practice Guidelines #5 Content J specific to new evidence that is presented to the Appeals Commission for reconsideration of an original Appeals Commission decision. What new evidence are they  referring to as if the system is supposed to be working according to plan and WCB has done their due diligence by investigating and gathering the facts, at no time should there be any new evidence. It is grossly illogical for the Appeals Commission to deny a reconsideration based on their belief that the worker has the burden of proof and with due diligence the evidence that a worker has provided now could have been presented at the earlier Appeals Commission hearing. Being that gathering of the facts is exclusive to WCB, it is illegal for a worker or an employer to gather the facts.

As you know or should know, the legislature has through legislation enacted the WCA that provides “exclusive jurisdiction” (Refer to Section 17(1) of the WCA) whereby only WCB is legally entitled to investigate and gather the facts and this is explained in WCB policy also by referring to WCB Policy (02-01 Part I) which I request that you read. For your information, the Ombudsman has already determined this issue and so did the Court of Queens Bench. The only problem is that WCB, DRDRB and the Appeals Commission are not complying with the WCA and WCB Policy which it is your responsibility to advise the Ombudsman or the Justice Minister to direct that WCB, DRDRB and the AC comply with the WCA and WCB Policy by placing the burden of proof both for and against solely on the Board. Of course no one makes these shysters and gangsters do anything as witnessed by the fact that despite the fact that the Supreme Court of Canada determined that chronic pain must be recognized and workers diagnosed with chronic pain must receive the same compensation benefits as workers who do not have chronic pain but receive compensation benefits which almost 20 years later they are still not in compliance.

As a public body that is set up to assist workers and employers, in order to assist and represent them, it is your duty to ensure that all workers and employers are aware that neither the worker or the employer has any burden of proof in an inquiry based system rather than passing the buck to the Ombudsman or the members of the legislature. If necessary, when the FPO is aware that WCB, DRDRB and the Appeals Commission are not in compliance with the law, that you contact the Justice Minister and have the Justice Minister direct that WCB, DRDRB and the Appeals Commission to comply with the law. Other than that, the FPO is another useless body created by Government. Have a nice day!