Sep 282019
 

By Gerald

Over the course of my 30 years involving workers compensation specific to the “Act”, WCB Policies, WCB Regulations, Federal Human Rights Commission, Provincial  Human Rights Commission Services Canada (CPP disability), Civil litigation, Family Law, Criminal Law, Charter, Judicial Reviews, one of the biggest problems within the workers compensation system is translation of the WCA and WCB Policies.

Most work related injuries involve pain. Most workers recover from their injuries and pain is no longer a factor, however for many workers pain does not go away and becomes chronic without any discernible organic reason. Non discernible chronic pain is compensable which is confusing for Case Managers, DRDRB and the Appeals Commission who are not doctors or lawyers specializing in workers compensation and are thus totally unaware that the Supreme Court of Canada determined that chronic pain must be recognized and compensation be provided as it is for any other physical or mental injury.

WCB Policy 03-01 Part II Application 7 is a two part policy specific to chronic pain and chronic pain syndrome which at first blush seems to provide only medical treatment for chronic pain which is obviously illegal but provides compensation for chronic pain syndrome which would then include compensation (medical treatment, loss of earnings and vocational rehabilitation). Many workers are under the false impression that if they want full compensation, they must be diagnosed with chronic pain syndrome to receive full compensation which is not true as chronic pain in itself is totally compensable and supported by the SCC specific to the Martin/Laseur case based on Section 15.1 of the Charter. In Alberta discrimination is under the jurisdiction of the Alberta Human Rights Commission and a complaint can be filed against WCB under the protected category of “disability” and the area of discrimination would be “services”

According to decisions made by the Appeals Commission when translating Policy 03-01 Part II Application 7, the Appeals Commission most likely because of inexperience and ignorance which is a common trait have not considered that the SCC has determined that chronic pain is “totally” compensable, not just providing medical treatment. WCB and the Appeals Commission incorrectly assume that entitlement of a worker diagnosed with chronic pain consists of medical treatment only without any compensation of an earning loss or vocational rehabilitation which is not in compliance with Section 15.1 of the Charter or Alberta Human Rights Act. A study by Noonan and Wagner determined that Alberta was one of the provinces that had not complied with legal precedence (SCC) and have continued to provide only medical treatment for chronic pain but no compensation for an earning loss or vocational rehabilitation which is illegal. The question is “why has the Appeals Commission not addressed the issue of non compliance as a quasi-judicial body to ensure that all workers are treated equally” leaving workers with no  alternative but to file a complaint with the AHRC who have the authority and jurisdiction to hear the complaint. WCB and the Appeals Commission incorrectly believe that because Section 6 (a) of the WCA provides the WCB BoD to determine policy which if interpreted correctly, policy must comply with the “Act”, the Charter and Human Rights legislation.

The Alberta Government was aware that WCB did not provide full compensation for chronic pain other than medical treatment and along with WCB, DRDRB and the Appeals Commission covered this up rather than enacting chronic pain regulations as was done by the Nova Scotia Government who in order to comply with the Supreme Court of Canada decision specific to chronic pain in the Martin/Laseur case enacted their chronic pain regulations which provided full compensation for chronic pain and not simply medical treatment as was and is the only part of a full compensation package provided by the Alberta WCB which workers are entitled to. The importance of receiving a PCI rating for chronic pain  which WCB does not provide is that without a PCI rating a worker is not entitled to a disability pension prior to Jan, 1, 1995 as WCB illegally has equated a PCI rating to a disability rating and after Jan 1, 1995, without a PCI rating a worker is not eligible for a NELP.

Of course chronic pain is only one of the many human rights complaints that WCB is guilty of but workers do not understand that at any time they have been treated differently from some one else and can prove it on a prima facie basis, they can file a human rights complaint which at present under a new Director and Commissioner is being taken more seriously than before under the old regime.