Nov 162018
 

By Gerald

Most people are aware that lawyers have very little or no integrity or principles which is evident when performing surveys involving trust. Lawyers are always at the bottom of the list. The case I am presenting is why all long standing claims must be reheard by unbiased, knowledgeable people with integrity. Grandfathering claims that has resulted in grievous harm to workers should be as important as grandfathering the grievous harm caused by Governments to natives and the grievous harm done to Albertans who were forcefully sterilized due to the governments belief in eugenics. Much of the harm done to workers should fall under the criminal code based on criminal fraud not honest mistakes and the people involved including Wispinski  incarcerated. Aiding and abetting criminal action is an indictable offense. Should the Appeals Commission be headed by some one who has allegedly committed an indictable offense. I think not.

The case I am presenting may be be found on Canlii although the Judicial Review presided by Justice Millar was not put on Canlii for obvious reasons because the harm it could of caused WCB and the Appeals Commission. This particular claim goes back to 2007 when the worker was injured although he is still fighting two claims specific to work related accidents that happened 45 years ago. In the 2007 accident, unbeknown to the employer, the worker applied for the job despite the fact that he was on CPP disability and also AISH because WCB on the two previous claims dating back 45 years illegally denied his benefits that he was entitled to. The Case Manager (Neil Swancar) had advised the worker that he was unemployable and that he must lie or hold back any information about his medical condition to obtain work. He followed the directions of Mr. Swancar and on the first day of work slipped on some stairs, fell into a pile of rocks and had to go to the emergency in Olds, Alberta where he was found to have suffered internal injuries and was passing blood in his urine. WCB accepted his claim and a WCB doctor, Dr. Henderson opined he would recover in 3 months. The workers Case Manager told the worker that the employer had offered modified work which was a lie and verified by the employer that it was a lie. The intent by the Case Manager, Carole Couture was to terminate his claim to claim her bonus provided to all Case Managers by WCB to terminate claims. This practice was verified by John Wollcott, another Case Manager with WCB who claimed all Case Managers did this.

This claim went through the appeals process and two years later, without any investigation by WCB, at an in in person hearing the Appeals Commission determined that the worker was not entitled to a temporary total earning loss for 3 months but was only entitled to a one month temporary earning loss because according to the Case Manager, Carole Couture modified work had been offered but the worker refused the offer of modified work. Questionably is why the Appeals Commission would not have simply sent the claim back to WCB and directed that there be a written offer of modified work from the employer rather than to assume that the Case Manager was honest which questions their decision making capabilities. Stupid people do stupid things. Needless to say, the Appeals Commission directed that WCB pay one month loss of earnings and denied the additional two months loss of earnings because they assumed that the employer had offered modified work because the Case Manager said that the employer offered modified work.

Undaunted we then put in a claim for a temporary partial loss of earnings which was denied by another Case Manager. Her decision was upheld by the DRDRB even though over 3 years later, WCB had still not investigated or contacted the employer as to whether modified work was ever offered. On appeal to the second group of misfits (3 stooges selected as Appeal Commissioners) I requested that the employer and the Case Manager be subpoenaed to prove that no offer of modified work had ever been made. This request was denied because the 3 stooges decided that documentary evidence was adequate to make a decision which as any fool knows, documentary evidence is only accepted by fools and is rarely or ever used in real courts presided by real judges rather than the stooges or monkeys selected by the Government who are as dumb as the people they select.

During the in person hearing, a question was asked by a member of the Appeals Commission, Patty Whiting if modified work was discussed which was a stupid question as discussing modified work is not the same as offering modified work. Rather than answering the question, the employer replied that had he known the worker had work restrictions was on CPP disability and AISH, he would not have hired him in the first place. This seemed to go over the 3 stooges heads and the claim for temporary partial loss of earnings to the end of May was again denied. We requested a reconsideration based on the fact that I contacted the employer and asked if he had ever offered modified work through the Case Manager or  contacted the worker directly to offer modified work and his reply was that he did not at anytime offer modified work. Not getting any where with these assholes who clearly should have or could have been replaced by monkeys we chose to go to Judicial Review.

The Appeals Commission and WCB in their statement of defense, suggested that the burden of proof was on me to prove that modified work was not offered and suggested that during the in person hearing attended by the employer via teleconferencing that I should have asked the employer if he had offered modified work. The issue of modified work should have been cleared up at the initial stages of WCB’s investigation and not having me having to ask a question that the Appeals Commission should have considered and not after the fact blame me for not asking a question that WCB by law and policy were responsible for obtaining during an investigation. In Justice Millar’s decision the decision to deny the claim was based on their belief that the burden of proof was on me and that it was up to me to contact the employer or ask the employer at the in person hearing if modified work was presented. Per verbatim, Justice Millar replied to this, “with respect, this appears to be the flimsiest of evidence with respect to the offer of modified work.When confronted with Mr. Miller’s repeated denials that no modified work had been offered and no written documentation had been produced, the decision of the Appeal Commission in this regard is under review, which would be respected if it is reasonable. In my view, it was not reasonable. The case notes of the WCB Case Manager is barely worthy of note and amounts to an absence of evidence. To suggest that the Appeals Commission needs more evidence by suggesting Mr. Miller had an opportunity to ask the employer has some merit. However as noted by the applicant, this is an inquiry system, not an adversarial system.  Justice Millar after rendering his decision, he stated per verbatim, “In the result, I find the approach of the Appeals Commission was not reasonable. It is for the Appeals Commission to determine if they will require some written confirmation of the offer of modified work or in its absence, subpoena the employer with a notice to attend to confirm the offer of modified employment. That question should be referred back to the Appeals Commission for a reconsideration with a new panel”  The claim was referred back to the Appeals Commission and they refused to contact the employer as they knew that there was never any offer of modified work, they knew the Case Manager had lied and they knew they had naively believed her making them look like fools. Not wanting to look like fools, they denied the claim for a second time stating again that the burden of proof was on me and that I should have asked the employer at the in person hearing if modified work had been offered despite the fact that Justice Millar had already determined that in an inquiry system, there is no burden of proof on any one other than the “Board” who had not done their due diligence and performed a thorough investigation. Note: in this particular workers claim, it was determined that there need not be a written offer of modified work and when looking on Canlii on an Appeals Commission decision, an employer appealed a decision of the DRDRB specific to whether there need be a written offer of modified work and the Appeals Commission determined that there must be a written offer of modified work, signed by the worker and the employer and dismissed the appeal of the employer because the worker had not received the written offer of modified work because the written offer of modified work went to the wrong address and was therefore not signed by the worker. Either a written offer of modified work is required in all cases or a written offer of modified work is not required. This would be a valid complaint to the human rights commission based on differential treatment. I suspect that every claim would result in differential treatment and result in a human rights complaint due to inconsistent decisions that result in discrimination.

According to the principles of stare decisis ( When an issue has been been preciously brought to court and a ruling issued) the same issue cannot be brought back to be re-adjudicated) The principles of res judicata (an issue that has been determined by a competent court and may not be pursued further by the same parties) and as well the principles of issue estoppel. After denying the claim for a second time we again had to request another Judicial Review. Rather than WCB having their Legal Counsel represent WCB and Wispinski represent the Appeals Commission, Wispinski represented both WCB and the Appeals Commission which clearly was a conflict of interest as the Appeals Commission is supposed to be a neutral body, not a body representing WCB. Representation was discussed with Yamauchi and Wispinski made it quite clear to Yamauchi that she would not allow me to represent the worker because it was apparent that I knew more than her and after two of their senior legal counsel losing the case before Justice Millar, she could not allow me to represent the worker. Rather than Wispinski doing the right thing and acknowledging that there was never an offer of modified work, an honest person with any integrity would have advised the court that she could not defend the Appeals Commission to criminally defraud the worker out of the two months entitlement for a temporary loss of earnings making her an accessory to an indictable offense which is criminal fraud. Based on the same evidence that was before Justice Millar, Justice Yamauchi should not have allowed the Judicial Review to proceed based on the principle of stare decisis and not disagreeing with Justice Millar and disrespectfully disagreeing with Justice Millar determining that we had the burden of proof in determining whether modified work was offered or that I should have requested this information at the in person hearing which is patently unreasonable as this should have been determined by WCB who were not in compliance with their own policy by not investigating the claim two years before the in person hearing. We could have appealed the decision of Yamauchi to the Alberta Court of Appeal but with limited finances, the worker like thousands of other workers face the procedural unfairness of having to pay for a lawyer while both the Appeals Commission and WCB use money out of the accident fund that belongs to workers which does not belong to them but is held in trust by WCB and not to be used to bully workers into not going to the courts for Judicial Review.

It is apparent that the whole reason by the Appeals Commission not complying with justice Millar’s directive was to teach us a lesson after they had lost the court battle between their senior legal counsel, WCB’s senior legal counsel and I by making this a vindictive and retaliatory lesson for workers who would dare question their expertise in adjudicating claims and then making them all look like fools.

Still not backing off, we filed a multi-million dollar civil action suit against the Appeals Commission suspecting that their statement of defense would be based on Section 13.1 (9) of the WCA which removes or forbids any action against the Appeals Commission if their decision was made in the honest belief that it was within the Appeals Commission to make. Having them admit they made a mistake in denying the claim was worth the $200.00 it cost to file the civil action. Despite in the statement of defense, they admitted to making an honest mistake, they still refused to apologize or pay the worker the $8,000.00 dollars they owed him which questions the integrity of Wispinski and Tadman who should have sent the claim back to WCB directing that WCB pay the worker..

Having experienced shit like this I do not question why workers take the law into heir own hands and seek revenge. According to the criminal code, it is legal to take the law into your own hands when local authorities refuse to protect you as long as you use reasonable force. At the time that Patrick Clayton decided to take matters into his own hands in all the forums that I read, most people agreed with what he done. I also believed that he was justified what he did and in a CBC interview, I expressed my views and when asked if I believed that incidents like this would happen again, my reply was, most certainly it would.

The WCA was changed in 2018 specifically to how the WCB BoD must be selected. The same selection process should be used to select Appeals Commissioners as per Section 5(1.1) effective in 2018 where an equal number of Appeals Commissioners are selected from a list of persons chosen by workers, an equal number selected from a list chosen by employers and an equal list chosen by members of the public rather than now where Appeals Commissioners are chosen based on their political affiliation. There is presently 43 Appeals Commissioners which would mean if this method was put into place, the Government would select 14 Appeals Commissioners from the lists presented by injured workers groups, 14 Appeals Commissioners representing employers and 14 Appeals Commissioners representing the general public. As any monkey could serve as the Chief of the Appeals Commission, this selection could come from the Calgary zoo. At present, at an in person hearing there are no worker representatives and is the reason why over half of the appeals are denied because when choosing the three panel members to serve at in person hearings, all are professional, business, management, former government employees, lawyers, former WCB employees, union business managers with only one of the Appeals Commissioners (Stephan Dussault who has only been in Alberta for 5 years and has never participated in any in person Appeal Commission hearings) being a blue collar worker.

There needs to be some one in charge of the of the WCB and the Appeals Commission as at present no one is in charge or taking responsibility for the corruption that workers experience. Incidentally, I did hear that the person selected to be the head of the Fair Practices Office would be Tadman.

Jun 272012
 

Rather than sit idly by and not providing a review of a claim that like thousands of other claims and benefits have been denied based on false medical information due to either malice or incompetence, I will present a claim that because the process that is supposed to provide a fair and unbiased decision resulted in the claimant, Mr. Milne having to proceed with civil litigation rather than to be subjected to abuse of due process, abuse of power and as well an abuse of an individual through the WCB decision making process.

 

The process itself is and should be relatively easy to follow but unfortunately the doctors and decision makers are either biased or incompetent. From the top down, the minister in charge of the WCB, the WCB BoD and the President of the WCB are incompetent and have no idea how the system is supposed to operate. Put all these clowns together and the result is a system that is in chaos.

 

In order to understand the events leading up to the filing of a civil suit by Mr. Milne the following court cases would have to be read in their entirety. All of the cases can be found on The Canlii web page that describes in detail what Mr. Milne was put through and is still going through with no place to turn to other than a continuation of civil suits that had due process been followed he would have never had to go to the courts. I will provide the links to the court cases for those who are interested or those who are contemplating civil action and the pitfalls that may be avoided by learning from Mr. Milne’s experience. I will present the links in chronological order;

 

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2005/2005abqb594/2005abqb594.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2007/2007abqb299/2007abqb299.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2007/2007abqb407/2007abqb407.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2008/2008abqb710/2008abqb710.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2012/2012abqb302/2012abqb302.html

From review of Mr. Milne’s court records and my own personal knowledge of Mr. Milne’s claim, Mr Milne was injured in an accident on Nov. 4, 1995. WCB did accept his claim for an injury to his cervical spine which according to numerous doctors should have not resulted in any permanent injury or disability. Despite the fact that there was no medical diagnosis of why he continued to experience pain, he was sent to attend a pain clinic and work hardening program. Numerous medical tests indicated that there were no abnormalities involving the cervical spine, yet he continued to experience pain. He was discharged from the programs and was accused of malingering and treated with contempt for his continued efforts to find the reason for his pain. Rather than being wrongfully accused of malingering, Mr. Milne went out of Alberta for a medical diagnosis and treatment in Minneapolis where it was determined that he had injuries to the cervical spine facet joints which were treated by radial frequency ablation that resulted in Mr. Milne not having to take any pain medications. It was thus established that the cause of the pain was due to the cervical spine facet joint injuries and attributed to the accident on Nov. 4, 1995.

 

Based on this fact, Mr. Milne should have had the decision of the Appeals Commission to deny his claim, overturned and benefits paid, yet his claim continues to be denied by the Appeals Commission who clearly have a vendetta against Mr. Milne for proving them wrong along with their network of WCB doctors, which also included a MRP who also had been proven wrong. This action by the Appeals Commission by not granting a reconsideration based on new evidence and either directing WCB to pay benefits or by sending Mr. Milne’s claim back to Customer Services brings the administration of justice into disrepute. Noticeably also is the fact that Mr. Milne did request that the Appeals Commission subpoena numerous witnesses who were pertinent to his case and the Appeals Commission illegally refused his request despite the fact that the Alberta Court of Appeals has determined that refusing to subpoena witnesses results in procedural unfairness or a violation of the Rules of Natural Justice. By refusing Mr. Milne to subpoena witnesses, his only recourse was to file a civil claim against the doctors who provided false medical opinions and the WCB.

 

To add insult to injury, the Alberta Government is complicit in enacting legislation (Section 34 (4) of the WCA protecting unethical doctors from providing false medical information by not allowing any medical documentation to be entered into the courts which results in WCB’s network of doctors to provide biased and false medical opinions that results in denial of a claim or benefits without any responsibility or justification for their opinions. Questionably is why would the Alberta Government enact legislation that protects doctors from litigation by not allowing a plaintiff to use their medical reports in the courts to prove malice or incompetence. Both Plageman and Barnes had the audacity to claim in the courts that they do not have a duty of care to any claimant because they offer only an opinion and do not provide any medical care. According to the College of Physicians and Surgeons a doctor has the right to provide any opinion they want even if it is knowingly false or misleading and the College justifies this by stating that a doctor’s opinion is simply an opinion and it is the decision makers responsibility to ensure that the opinion is based on medical fact.

 

I have spoke to Mr. Milne on a number of occasions and have met him personally. I have discussed a class action lawsuit with him which would be based on what I consider to be a reasonable chance of success. From research, I have found that there are a number of areas where WCB policy is not in compliance with the WCA which would be the best way to proceed with a class action lawsuit rather to file a class action lawsuit involving individual claims or medical opinions that would most likely result in failure. At present I have three claims that I am assisting the claimants on and will be used as a test run to have WCB, the DRDRB and the Appeals Commission provide a decision on. All claims are long standing claims, one goes back to 1973, and two claims to 1993. All of the claims are backed by legal precedent which was heard and decided by the Alberta Court of Appeal and never appealed to the Supreme Court by either the plaintiff or the Appeals Commission. If any one wants the details, I would be more than willing to explain how WCB policy is not in compliance with the WCA and has not been since approximately 1960. If any workers know of a lawyer or law firm who would be willing to pursue a class action lawsuit based on my findings, I would be more than willing to provide then with the information I have gathered.

 

When I was involved with Justice Friedman in making recommendations to improve the system, one of my recommendation provided by myself was for total transparency in the system which is one of the major problems in the system and can be attributed to the Appeals Commission who believe that all claims are confidential, yet all of the court cases involving Mr. Milne provides his name, the names of all the doctors involved in his claim and as well the media can sit in and listen to the court proceedings. There is absolutely no reason why an in person hearing should disallow the media from attending or for that matter any member of the public. The public has a right to know who the Case Manager was, who the DRDRB member was, who the doctors were involved in the claim. Knowing all of this is the only way that people like myself can analyze a claim which would over a period of time indicate whether a doctor is always providing negative medical opinions, the competence of a Case Manager, the competence of a DRDRB member etc could all be analyzed by total transparency. As a person who has an extensive background as an analyzer (Most of my adult working life) total transparency is crucial in analyzing a claim. Total transparency would allow me to determine a trend in evaluating people involvement in the claim. For example: How many claims have Plageman and Barnes been involved in that were based on false medical opinions? I know a WCB doctor who has performed thousands of impairment ratings that were not performed correctly. How many other worker’s lives besides Mr. Milne’s have these doctors ruined by providing false medical opinions?

 

A recommendation by Justice Friedman was to get rid of George Pheasy who is another major problem with the Appeals Commission. The reason for this is numerous errors in law occur on a regular basis and Mr. Pheasy has no legal background in Administrative Law. He also does not possess any medical knowledge that is a major requirement of some one who is the Chief Appeals Commissioner. My experience with Mr. Pheasy is that he is an arrogant, pompous, narcissistic individual who rather than admitting to making mistakes, covers up these mistakes by refusing to reconsider new evidence that proves the Appeals Commission made a mistake. Covering up a mistake rather than admitting there was a mistake results in civil litigation as clearly in covering up a mistake you cannot then plead that it was an honest mistake. Two claims that I represented workers on resulted in irrefutable evidence that there was a causal relation. Despite the fact that the Threshold Reconsideration Committee did not agree with George, he denied the claim. The other claim went before a Human Rights Tribunal after the Appeals Commission had determined that there was no PCI rating and when the American Medical Association supported me by determining that there was an impairment rating and WCB agreed that there was, he refused to accept the evidence and forbid any one in the Appeals Commission to have anything to do with me.

 

There has been no improvements made in the appeals system and perhaps rather than going through more investigations of how to make the system more accountable and transparent, the Appeals Commission and the MRP should be abolished and any claim that is appealed following a decision of the DRDRB should go into the courts. The Office of the Appeals Advisor should be moved under the Minister in charge of the WCB and staffed by lawyers trained in Administrative Law who would represent workers in the courts at no charge. They also would use their judgement to appeal any lower court’s decision to the Alberta Court of Appeal and to the Supreme Court if necessary. No worker should be represented by any one other than a lawyer which would then make all claims decided on a level playing field instead of the bullying tactics used by WCB, the DRDRB and especially the WCB Appeals Commission used against workers with little education, limited finances and limited medical knowledge. An investigative article in the Edmonton Sun found that all workers who were represented by lawyers or union lawyers resulted in workers having their claims and benefits accepted as opposed to workers who could not afford a lawyer or were not represented by a union.

 

Noticeably is the fact that Mr. Milne was forced to represent himself and has done a remarkable job of doing so. I have great respect for Mr. Milne who despite all odds has not given up and his family has to be very proud of him for being the man that he is. It is unfortunate that the Office of the Appeals Advisor or WCB Advocates take a worker’s money and do not tell the worker that they do not have any legal right to represent the worker in the courts if a worker wishes to pursue a Judicial Review or Judicial Appeal of an Appeals Commission decision. For any one to act as their own lawyer without any legal experience does show how remarkable a person Mr. Milne is.

 

It is also a fact that WCB has spent over two hundred thousand dollars on this claim despite the fact that they maintain despite irrefutable evidence that the injury to the facet joints is not work related. How can it not be work related when, Mr. Milne had no prior history of a spinal injury. Of course, WCB doctors seem to always blame any spinal injury to degenerative disc disease. Noticeably also is that Mr. Milne also is suing WCB for several million dollars which again should not happen especially when the evidence and the final diagnosis by experts have determined that the injury was caused by the work. My advice would be to settle out of court and let Mr. Milne and his family alone.

 

According to Dr. Scanlon, the work hardening program and the chronic pain clinic did in fact cause further needless injury to Mr. Milne and I suppose that this is the reason why Columbia settled the civil claim against them out of court. How many times has this happened when a worker is sent for work hardening, FCE and chronic pain rehabilitation before a diagnosis is made as to the cause of the chronic pain? Common sense and logic would be that as long as a worker has chronic pain, you do not send him/her for a FCE, work hardening or chronic pain rehabilitation. To add insult to injury, any worker who has chronic pain despite normal test results is always sent to a Psychologist who will inevitably determine that the worker is faking the pain or malingering.

 

Based on Mr. Milne’s experience in representing himself, if a lawyer or law firm will not represent a class action lawsuit on a contingency basis, it would be perfectly legal for Mr. Milne to represent the class if he would join the class action and represent himself as being one of the plaintiffs. Of course class action lawsuits or lawsuits such as Mr. Milne filed would not be necessary if the Alberta Government would have a court provide a Judicial Inquiry or Public Inquiry into how the system operates or if not that, to appoint a review committee to hear long standing claims which are in the thousands. In fact I may even agree to sit on a committee to hear long standing claims.

 

The privatization of the Alberta WCB has been a dismal failure and the Government should consider taking back control of a system that instead of helping workers, treats workers with contempt. The assets of WCB belong to employers who fund the system and these assets would then revert to the Alberta Government. Recent studies have concluded that a public system is far superior to a private system who only are concerned with their own self interests rather than the needs of workers. Recent studies have also concluded that private WCB systems shift the costs of claims unto the public system who are forced to provide health care costs and social assistance to workers whose claims and benefits have been illegally denied. The costs for the public system to have these costs of caring for workers has been estimated in the billions of dollars in the U.S. and in Canada would also be in the hundreds of millions or billions of dollars. Going back to a public system is a no brainer and could have been a platform that the Wildrose party could have used to attain power. I must admit that at one time I favoured a private system but after a careful analysis, I no longer believe that a private system is a viable option. I have no qualms about admitting that I made a mistake unlike WCB, the DRDRB and the Appeals Commission who will continue to fight a worker even though they know they made a mistake.

 

Change is needed and turning a blind eye is not a solution. Because of the adversarial environment that exists with the WCB, excessive amounts of money is spent bullying workers to accept the denial of the claims and benefits. A publicly owned and operated system could eliminate this adversarial environment and reduce staff by 50-75%, thereby reducing costs. Reducing costs could also be attained by a mutual agreement by workers and employers sharing the costs of earning loss insurance which was a proposal made over one hundred years ago but was never considered.

 

Over the years we have witnessed workers like Gregory Jacks committing public suicide where he blew his head off with a shotgun, we have had hostage takings on numerous occasions in Calgary and in Edmonton, we have witnessed rallies and speeches, we have had a commission investigative process, we have had posturing in the legislation by various opposition parties, we have had lawsuits filed against WCB with mixed success, we have had legal precedents such as the Johnson decision by the Alberta Court of Appeals on several occasions supporting workers, we have had the Supreme Court determining in workers favour involving chronic pain, yet nothing has been done to change the culture of denial. It is only through the courts that workers have managed to hold WCB accountable but with no follow up. It is only through the courts that justice will be done or seen to be done and the only recourse for workers is a class action suit against the Alberta Government and the WCB for violating the principle of natural justice, violating the WCA and WCB policies. As some one who has never had a WCB claim, I cannot do any more for workers other than to explain to them why I consider a class action lawsuit and the reasons why I feel that a class action lawsuit would be reasonably successful.

 

Gerry Miller

 

“For evil to flourish, all that is needed is for good people to do nothing” – Edmund Burke