Sep 172019
 

By Gerald

Click on the following link: https://www.thestar.com/news/canada/2019/09/04/ontario-injured-worker-advocates-take-discrimination-concerns-to-united-nations.html

Like everything that is wrong with workers compensation systems, it’s the Government who could enact legislation to stop deeming. Deeming is allowed according to the WCA and allows workers compensation boards to comply with the law. Why in a democracy should workers have to go outside Canada to attain justice.

Questionably is why workers forced into workers compensation systems are
treated differently than workers outside of the system when it pertains
to determining disability or loss of earnings. In a case cited as
Villani v Canada (Attorney General)
https://www.canlii.org/en/ca/fca/doc/2001/2001fca248/2001fca248.html?searchUrlHash=AAAAAQAHdmlsbGFuaQAAAAAB&resultIndex=1
the Federal Court of Appeal relied on a real world scenario rather than
an imaginary world as used by WCB specific to deeming. WCB by statute
provided by Governments can and does use deeming to determine an earning loss by using imaginary jobs as a reference to deny an earning loss
resulting in most workers applying for AISH and CPP disability benefits.

The Government could rescind this but have chosen not to resulting in
workers having to bring their cases to the United Nations which makes us
look like a third world country rather than a democratic country that
abuses workers.

Aug 202019
 

By Gerald

My further comments regarding the following news article (in italics):

Workers’ Compensation Board

The province’s WCB board of directors has been reduced from 10 to seven members, which the province says will save as much as $56,000 in spending.

“The reduced numbers will help to streamline the work done by the WCB board of directors, providing opportunity for more effective and efficient decision-making,” said the province in a release.

The new chair is Erna Ference, who replaces Grace Thostenson. The province says she has a background in workplace health and safety, the agricultural industry and fiscal management.

While the board boasts smaller numbers, the province says there will still be the same proportion of employer, worker and public representatives.

Workers compensation is an ancient relic from the past and serves no useful purpose in protecting workers. Employers are provided protection from civil litigation but they pay dearly into a system that does not work at all for workers as witnessed by workers when they are injured or suffer an occupational disease. The only thing WCB does is cause marital breakdowns, suicides, homicides, family poverty which the Government seems to be quite content with.

A cost saving of $56,00.00 is drop in the bucket and will do nothing to streamline the system as the culture of denial is so deeply entrenched into the system that the only way of saving money for employers is to get rid of it and replace it with modern day disability insurance where premiums are shared by employers and workers. This could be achieved very easily saving millions of dollars a year for employers while still protecting employers from civil action and getting rid of the horrendous task of proving causation which is next to impossible regardless of who has the burden of proof. Does it really matter whether a person breaks a leg at home or at work and may not be able to work again until they recover. 

Another option is to retain WCB as a disability insurance company exclusively for workers and employers but change WCB so that they provide unconditional insurance without the impossible task of some one whether it be the worker or the “Board” proving causation. Who really cares!

In my humble opinion it is grossly illogical to pay two disability premiums when one would suffice. I pay for one comprehensive home insurance policy and do not pay home replacement costs, one for the roof and one for the remaining structure. I do not pay collision insurance for the front part of my car and another collision insurance for the back part of the car. I do not pay life insurance for death caused by injuries or disease to the upper part of my body and separate life insurance for injuries or diseases to the lower part of my body.  

For those of you who do not know anything about dual disability insurance that public servants and WCB employees receive, it works like this. When a worker with dual disability insurance is injured, suffers any medical condition, they file a claim simultaneously with WCB and the private insurer. The private insurer responds immediately and a worker starts receiving short term disability benefits as opposed to WCB who have to decide whether the accident or medical condition arose out of and occurred in the course of employment. This could take decades. If the private insurer’s Medical Consultants determine that it is a work related injury or disease, they continue to pay disability benefits but have the worker sign documents which if WCB accepts the claim, any money a worker receives goes back to the private insurer. It shouldn’t take a rocket scientist to figure out which disability insurance is better, WCB who offer conditional insurance or a private disability carrier who provide unconditional insurance.

When considering how much money in salary and benefits are paid to WCB Case Managers and upper level management, DRDRB members, Appeals Commissioners, WCB Legal Counsel, WCB Medical Advisors, support staff, office leasing, furniture etc. it would most likely result in more money paid out for these expenditures than workers receive in disability benefits.

Why should taxpayers pay for dual disability insurance for public servants if WCB provides such great insurance for worker protection. If in fact WCB was totally abolished, no one would miss it at all. A much better plan would be to make disability insurance mandatory on a shared cost between workers and employers with legislation that workers could not sue an employer or a fellow employee in the event of an accident. Disability insurance could be provided by a major insurance company like Sun Life that already provides major corporations like Telus, Government employees and as well as WCB systems across Canada with disability insurance. Sun Life disability benefits are not contingent on proving causation and would kick in immediately for as long as a disability lasts unlike WCB disability insurance which can take decades to receive if at all. I am assisting on four claims, one is 46 years old, another is 28 years old, another is 11 years old and five years old. All are legitimate claims that involved reduced benefits or no benefits at all. With no money paid out by WCB for work related accidents, it is tax payers who are supporting these workers through Social Services and CPP disability payments. In all of the four claims the workers were being supported by Social Services or Services Canada (CPP disability). Interesting enough is that a study in the U.S. concluded that over 76% of the work related pensions to workers were being paid for by tax payers through Social Security which in Alberta would most likely also be the case. The person whose claim went back 46 years had been on CPP disability and AISH since 1992 until he turned 65, costing taxpayers approximately well over $300,000.00 for a work related injury that was eventually accepted by WCB several years ago and received  approximately $13,000.00 as a lump sum back payment which clearly is a joke with no payment by WCB to Social Services, Alberta Health Care and Services Canada who provided the disability pensions and medical care for the worker and his family destroying the myth that the employer funds the system. You can fool some of the people some of the time but you cannot fool all of the people all of the time and I am one person who you can not fool at all. 

There is good news and bad news after legislative changes by the NDP Government. Good news is the NDP removed the cap on maximum insurable earnings. They also legislated interim payments to workers while their claim is being dealt with by a Case Manager, DRDRB and the Appeals Commission. The bad news is that there is no statute of limitations as to how long it takes for a Case Manager to make a decision. As well there is no statute of limitations to how long it takes for the DRDRB to make a decision and there also is no statute of limitations on how long it takes for the Appeals Commission to make a decision. This could take years. If a worker receives interim relief, the time it takes to go through the appeals process does not seem to matter as workers are being paid interim relief. The bad news is that interim relief is not based on a workers earnings, it is based on minimum wage which means that a worker whose earnings are at the high end will receive minimum wage which will ultimately result in losing everything they own with a good possibility of a worker committing suicide, killing WCB employees, their families or the politicians who are responsible for forcing them into a system that does not work.

Patrick Clayton who most Albertans recognize took the law into his own hands when it was apparent that local authorities refused to assist him. Question is: when local authorities do not protect a person is it a crime to protect yourself? It was determined by the Court that Mr. Clayton was not justified to take the law into his own hands and sentenced him to a prison term. Curiously when he served his time, WCB paid him what he was entitled to but why did WCB not pay him what he was entitled before he took the law into his own hands. He served his prison time and after getting out, WCB paid him and are still paying him for what he was entitled to. Does this mean that in order to receive the benefits a worker is entitled to, that a worker takes the law into their own hands, serves a prison term and then receives compensation after they get out. The moral of this story is that WCB is telling workers that in order to receive the benefits a worker is entitled to, the worker must get a shot gun, go down to the WCB office and threaten or kill WCB employees and then the worker will receive their benefits. Of course WCB did the same thing with Gregory Jacks who blew his head off with a shotgun and after he  was dead, WCB apologized to his widow and paid her the benefits Mr. Jacks was entitled to.

Having spent my early yeas in the military we were taught to take out the people at the top, not the people at the bottom.Using this philosophy, if Mr. Clayton was smart he would have gone to the legislature building and went after the people responsible for his problems and not after WCB  employees who are simply doing what they are allowed to get away with.

Obviously, by abolishing WCB, it  would open Alberta for business with employers from other provinces most likely relocating to Alberta and employers who are presently in Alberta remaining in the province where employers and workers share the cost of disability insurance without the horrendous task of determining causation.

Last but not least, if WCB is such a great insurance plan, why did the Government bring in regulations to exempt numerous employers and workers from having to be covered by WCB which raises an interesting question. When workers and employers who are exempt from being forced into WCB, if an employer or worker covered under workers compensation is involved in an accident with a worker or an employer that is exempt, they can be sued by an exempt worker or employer in the event of an accident where the worker or employer covered under WCB is at fault. In other words, the “Grand Bargain” envisioned by Meredith is not such a grand bargain at all. Better to mandate that all workers and employers be covered under a non conditional disability insurance to avoid any civil litigation involving workers and employers. Why do something half-assed when there is a better alternative. 

Jul 292019
 

Dear Mr. Copping;

Congratulations on your election win and selection as labor minister by Mr. Kenny. From your biography I see that you have impressive credentials as the new labor minister. Better yet, some of your studies were from Osgoode Hall where I assume you must have met Dr. Terence Ison who is acknowledged as Canada’s foremost expert on administrative law as it pertains to workers compensation. 

We have a perplexing problem in Alberta that has been around for decades and that is who has the burden of proof both for and against in the workers compensation system. According to Dr. Ison neither the worker or the employer has any burden of proof. Dr. Ison suggests that in the workers compensation system in Canada, the “Board” is the only one who has the burden of proof, both for and against in what he refers to as an Inquiry system. This was noted by Justice Bruce Millar of the Alberta Court of Queens Bench when I was involved in a Judicial Review which resulted in the Appeals Commission and WCB Legal Counsel being advised by Justice Millar that my client under an Inquiry system had no burden of proof whatsoever, yet both WCB and the Appeals Commission persist in placing the burden of proof on workers. It is rare that an employer ever appeals any decision and rarely if ever attends an in person appeals hearing when WCB, DRDRB and the Appeals Commission assume the role of the employer to contradict a worker who is left on their own to argue their claim.

If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where it states:

V Principles of Adjudication Inquiry Model 

The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement. 

Click on the following link:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj   Scroll down to page 814 third paragraph where Dr. Ison states:

With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant.

In Albertathe burden of proof is put on the worker which is typical of an adversarial system which was never the intention of Meredith specifically because workers do not have the resources or financial ability to pay medical costs, legal costs to fight WCB, DRDRB and the Appeals Commission. Workers also do not by statute have the right to investigate, do not have the same powers as a the Court of queens Bench as does WCB, they also do not have any powers of investigation as does WCB under the Public Inquiries Act. 

My question to you is the same question I have asked previous Ministers in charge of the WCB. Who has the burden of proof in the workers compensation system in Alberta or is Alberta the only province in Canada that adjudication of claims is based on an adversarial system. 

It seems no one wants to answer this very simple question which after one hundred years, the people adjudicating claims should know whether Alberta operates on a strict civil law standard where workers are regarded as plaintiffs rather than claimants. I would appreciate a response although I don’t expect you or any one else would have the intestinal fortitude to upset the sacred cow.  

Adding to this is that we have laws in Canada and in the province of Alberta which we as citizens are expected to obey. That being the case why is it that WCB and the Appeals Commission are not held to that standard and if they are not, then why should any one obey the law. Our courts, including the Supreme Court of Canada find that WCB and the Appeals Commission are not in compliance with the law and WCB and the Appeals Commission continue to ignore the law and if they are sued, claim an honest mistake. When is the Alberta Government going to either fix the system to comply with the Meredith Principles or simply get rid of the whole system and the scumbags that are placed in positions where they are allowed to abuse workers and their families. By the way I am not an injured worker, have never filed a claim but I would be amiss if I did not assist and care for the less fortunate in our society which is more than the Government can say as in my opinion, the Government does not give a rat’s ass as to what happens to injured and disabled workers.

  • Gerry Miller
Mar 252019
 

By Gerald

The following reason is why the Alberta Human Rights Commission are dismissing complaints without investigating the legitimacy of the complaint. As well, any prima facie evidenced complaints specific to WCB are dismissed most likely on the direction of the Justice Minster and Minister in charge of the WCB;

The Alberta Human Rights Commission has put in place the Case Inventory Resolution Program in an effort to reduce a massive backlog of cases. For the past seven years the number of complaints received by the Commission has exceeded the Commission’s capacity to process them. Those unresolved complaints are carried forward into the next year resulting in a growing backlog of complaints. As a result, it can take up to 2 years for a complaint to reach the conciliation stage and approximately 4 years for a complaint to reach the investigation stage.

The Chief of the Commission, Michael Gottheil spoke on March 11, 2019 to the Canadian Bar Association Labour & Employment south section about the new program for addressing the backlog of cases at the Alberta Human Rights Commission.

The Case Inventory Resolution Program

As part of the change all complaints filed before January 1, 2019 will be placed in the Case Inventory Resolution Program, which will consist of an investigation team and a conciliation team.

  1. Investigation Team

There are currently 300 complaints in the investigation queue that have been through conciliation but were not successful in reaching a resolution and are now waiting for a Human Rights Officer to investigate.

The investigation team has been assigned to address the cases in the investigation queue. The team will consist of 4 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 5 cases per week and the entire team will meet weekly to review the files.

The Human Rights Officers will review each case, gather additional information from the parties and may request specific information and submissions on whether the case should be dismissed or not. The parties will have 30 days to respond to the request.

Once all the material has been gathered, the Human Rights Officer will review the file and the parties submissions and discuss with the team. The Director will make a decision on whether the case should be dismissed or not.

The Chief of the Commission anticipates the 300 cases will be assessed within 4-6 months.

  1. Conciliation Team

There are currently 1200 to 1300 complaints waiting to be assigned to a conciliator to conduct conciliation.

The conciliation team has been assigned to address the cases in the conciliation queue. The team will consist of 6 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 4 cases per week.

Initially, the Human Rights Officers will contact parties who have cases in this queue to inform them of the process, gather background information and schedule an in-person conciliation meeting 6-8 weeks down the road. Prior to the meeting the Human Rights Officer may contact the parties by phone and gather any additional evidence.

At the meeting, the conciliator will assist the parties in coming up with a resolution. If a resolution is reached, parties will sign a Memorandum of Agreement and Release. If no resolution is reached at the meeting, the conciliator will write a case summary with a recommendation to the Director. If the recommendation is to proceed to Tribunal, the conciliator will be encouraged to make a non-binding settlement recommendation.

The Director will then decide whether the case is dismissed or sent to Tribunal.

The Respondent will also be encouraged to make a settlement offer at this stage. The Respondent can request that the Director exercise their discretion under section 22 of the Alberta Human Rights Act to discontinue if the Complainant does not accept the offer.

The Chief of the Commission anticipates the 1200 – 1300 cases will be dealt with in 12-18 months and the conciliation team will likely start in May.

More information on the Alberta Human Rights Commission’s Case Inventory Resolution Program can be found here.

Mar 142019
 

By Gerald

Interesting that the Alberta Human Rights Commission would defer to any decision made by WCB or the Appeals Commission!

In Kebede v. SGS Canada Inc., 2019 AHRC 3the Alberta Human Rights Tribunal (the “Tribunal”) recently dismissed a portion of a human rights complaint on the grounds that the issue was already decided by the Alberta Workers’ Compensation Board (“WCB”).

The Complainant filed a human rights complaint asserting, among other things, that he suffered racially-based harassment and discrimination during the course of his employment with SGS Canada Inc. (“SGS”).

The Complainant sought compensation under the Workers’ Compensation Act for psychological injury that he alleged he suffered as a result of the same alleged racially motivated harassment and discrimination. The Complainant’s claim for compensation was denied by the WCB as it found no objective confirmation of work-related events or stressors that supported the Complainant suffering from “a chronic onset psychological injury arising out of and occurring during the course of employment.”

SGS sought the dismissal of the human rights complaint on the basis of the WCB’s denial of the Complainant’s WCB claim.

The Tribunal found that it could exercise its discretion to dismiss a portion of the complaint on the basis of issue estoppel as it found that:

  1. the same question was decided by the WCB;
  2. WCB’s decision was final; and
  3. the parties to the WCB’s decision were the same as in the human rights complaint.

The Tribunal exercised its discretion to dismiss the racially-based harassment and discrimination portion of the complaint as the Tribunal found that dismissing that portion of the complaint would not create unfairness. Specifically, the Tribunal noted that there was no new evidence or evidence of unfairness in the adjudication of the WCB claim.

This decision serves as a useful reminder of the Alberta Human Rights Commission’s powers under s.22 of the Alberta Human Rights Act to, at any time, refuse to accept a complaint on the basis that the complaint is one that: (i) could or should more appropriately be dealt with; (ii) has already been dealt with; or (iii) is scheduled to be heard; in another forum or under another Act.

This provision of the Alberta Human Rights Act may be particularly helpful to employers given the current delay in Alberta human rights matters proceeding to a hearing and the likelihood that another forum will issue a decision well in advance of an adjudication of the human rights matter. Further, dual proceedings may become more frequent given the increasing overlap between WCB and human rights matters, the increase in harassment related concerns in the workplace, and the added jurisdiction of Alberta Occupational Health and Safety over harassment in the workplace.

Mar 102019
 

By Gerald

This is an article written by Peter Rousmaniere who is a well known journalist and expert on workers compensation. I attended a webinar on Thursday March 7, 2019 at 10:00 AM hosted by experts in the area of workers compensation. The subject of using impairment ratings as a direct method of rating disability was discussed and the conclusion was that it has caused major financial problems for workers when determining disability which is why I went to court as this is a violation of a workers right to be compensated for a loss of earnings, not for the difficulty a worker would have performing basic activities of daily living which has got nothing to do with a loss of earnings.

Basically, the blame for all of this as determined by the Court of Queens Bench and supported by legal counsel on Feb. 20, 2019 was the fault of the WCB BOD who enacted the policy equating an impairment to a disability, thereby defrauding workers from receiving the loss of earnings they were entitled to. After the Penny decision, the Conservative Government should have directed that all claims prior to Jan 1, 1995 be re-adjudicated and workers life time pensions that were determined based on impairment ratings be re-calculated. It is obvious that the Conservative Government aided and abetted the Alberta WCB to defraud workers by failing to comply with the WCA as determined by the Alberta Court of Queens Bench and the Alberta Court of Appeal in the Penny case.  Rather than to re-adjudicate all claims prior to Jan 1, 1995, the Alberta WCB BOD simply changed their policy to enact a dual awards policy that separated an impairment rating from a disability rating by using impairment ratings to determine a NELP and an ELP to determine an earning loss.

It will be worthwhile for people to see how the Office of the Ombudsman will handle my complaint in regard to this matter. Will they sacrifice or kill the sacred cow or will they recommend that the Government re-adjudicate all claims prior to Jan 1, 1995 and pay workers what they are entitled to or will the Office of the Ombudsman simply attempt to coverall of this up just as the Conservative Government did after the Penny decision. None of this was an honest mistake as the Government and the WCB BOD knew what they done was wrong as witnessed by the fact that after the Penny decision, they separated impairment ratings from loss of earnings and went to a dual award system but failed to pay workers what they were entitled to prior to Jan 1, 1995.

Click on the following link:

https://www.workerscompensation.com/news_read.php?id=31849

Feb 282019
 

Office of the Ombudsman

801- 6th Ave SW

Calgary, Alberta

T2P 3W2

Feb. 26, 2019

On behalf of Mr. Smith, I Gerald Miller wish to file a complaint against the WCB Board of Directors that has resulted in defrauding both workers and employers out of millions of dollars due to an inappropriate enactment of policy either by ignorance, misfeasance, abuse of power or an act of bad faith.

Compensation in workers compensation is supposed to be determined based on the difference between pre-injury earnings and post-injury earnings to determine a loss of earnings. Prior to Jan 1, 1995, loss of earnings was determined by using impairment ratings as a direct method of rating a loss of earnings which was found to be illegal by three different courts in three different provinces, Alberta (Penny case), Nova Scotia (Hayden case) and the Yukon, yet because of the WCB BOD enactment of policy specifying that loss of earnings was to be determined by the direct use of impairment ratings in assessing loss of earnings prior to Jan 1, 1995 this has resulted in defrauding employers and workers out of millions of dollars.

There is also the possibility that policy enacted by the WCB BOD did not direct that impairment ratings be used as a direct method of determining an earning loss. There is nothing in policy or the WCA that directs that impairment ratings be used directly as a method of rating a disability (earning loss) or that loss of earnings is derived by multiplying an impairment rating by net earnings to determine a loss of earnings so how or why did this happen. Conclusive proof that impairment ratings have nothing to do with a disability (loss of earnings) is supported by the fact that prior to one second before midnight of Jan 1, 1995 impairment ratings were used to determine an economic loss by multiplying net earnings by an impairment rating and one second after midnight of Jan 1, 1995, impairment ratings were used to determine a non economic loss questioning the mentality of the people interpreting how an economic loss (loss of earnings) should be calculated.

On review of WCB Policy 04-04 Part I it states in part; WCB provides permanent disability benefits to the worker for any measurable permanent clinical impairment “AND” for any impairment of earning capacity meaning that there are two awards referred to as dual awards. Proceeding onward, the policy then states; a worker is considered to have a permanent disability when a work injury results in a permanent clinical impairment, an impairment of earning capacity due to permanent compensable work restrictions or “BOTH” Reading to this point, there is no mention of multiplying net earnings times an impairment rating. Reading further. When an accident occurred before Jan 1, 1995 WCB provides the following permanent disability benefits: a permanent disability award in the form of a pension, to compensate the worker for the permanent clinical impairment “AND” assumed loss of earnings which results in two awards, one award is a pension for the permanent clinical impairment and another award for an assumed loss of earnings. On further analysis, there is nothing to indicate that net earnings have to be multiplied by an impairment rating to determine a loss of earnings, although upon further analysis of Policy 04-04 Part II Application 5, Question 1 and 2 which upon analysis does attempt to explain how an earning loss is calculated by using impairment ratings but confuse the issue by equating a disability(loss of earnings to an impairment. You cannot call a disability an impairment or an impairment a disability any more than you can call a cat a dog or a dog a cat as both words are totally different. Regardless of how the BOD or WCB attempt o explain how to assess a loss of earnings, you cannot determine a loss of earnings by multiplying 90% of net earnings by an impairment rating unless the impairment rating was converted to a disability rating and then multiplying the disability rating by 90% of net earnings. For example if a worker was assessed a 20% PCI rating, this would have to be converted to a disability rating by factoring in each individuals unique characteristics such as their skills, education, job history,adaptability, age, environmental requirements and modifications. In other words you cannot equate an impairment rating to a disability rating without taking all the factors of an individual that are unique to the individual into consideration.

Impairment ratings have no correlation to earnings at all as an impairment rating excludes work as a component in the assessment of an impairment. Impairment ratings measure a workers ability to perform simple basic activities of daily living which are presented in Table 1-2 of the AMA Guides. Impairment ratings are assessed based on such medical conditions that involve minor difficulties in urinating, defecating, brushing teeth, eating getting an erection, ejaculating, orgasm, sleeping etc., which has got nothing to do with work or calculating an earning loss. Clearly using impairment ratings as a direct method of determining an earning loss questions the mentality of the WCB BOD and the people who adjudicate claims who obviously never did question how or why impairment ratings could be used when an impairment rating had nothing to do with work, a disability or loss of earnings. Note: there is nothing in the WCA that directs that WCB pay lifetime pensions for an impairment. The WCA does direct that WCB pay lifetime pensions based on a disability (loss of earnings) In fact, prior to 2018, there was no legislative requirement for WCB to pay any award for an impairment as that remained discretionary prior to 2018. Obviously if you multiply a PCI percentage rating times any numerical figure, the result would be equal to an impairment award not a disability (loss of earnings) award. You do not multiply apples times oranges and expect to get a banana.

On Feb.20, 2019, I attended and represented Mr. Smith on Judicial Review which was specific to the illegal use of impairment ratings being used as a direct method of rating a loss of earnings. It was acknowledged by the Court, WCB Legal Counsel and the Appeals Commission Legal Counsel that doing so was not in compliance with the WCA and contrary to the directives of the AMA Guides that specified that the AMA Guides cannot be used as a direct method of determining a loss of earnings. The AMA Guides are very specific and states per verbatim; 

Impairment percentages derived from the “Guides” criteria should not be used as direct estimates of disability. Impairment percentages estimate the extent of the impairment on whole person functioning and account for basic activities of daily living, not including work. The complexity of work activities requires individual analysis. Impairment assessment is the necessary first step for determining disability.

It was agreed that the blame for the fraud was the WCB BOD and according to the WCA Section 6(a)(i) the WCB BOD has jurisdiction to enact policy determining compensation, thus adjudicators were forced by statute to support defrauding workers and employers. This then leaves only the Government who can direct that the WCB BOD rescind their pre Jan. 1, 1995 policy where impairment ratings were used illegally to determine an earning loss, re-adjudicate all claims prior to this date basing a loss of earnings on calculating pre-injury to post-injury earnings. Not doing anything would bring the administration of justice into disrepute.

Despite the directive of the AMA Guides, the WCB BOD enacted policy that resulted in using impairment ratings as a direct method of rating a disability that has resulted in criminal fraud as determined by the Calgary Commercial Crimes Unit after investigation into the illegal use of the impairment ratings being used as a direct method of rating a loss of earnings.

Being that this is a systemic problem, I have advised other workers to also file complaints. According to Section 27 of the WCA, the Ombudsman after an investigation can recommend to the Government that an injustice or hardship to a worker or workers has resulted and it most certainly has, the Government may direct the “Board” to pay the worker or workers from the accident fund or refer the matter to the Court of Queens Bench for an assessment of damages and to pay the worker or workers the amount of damages assessed.

An example of how the inappropriate or illegal use of using impairment ratings as a direct method of rating a loss of earnings resulted in defrauding workers was presented in the Judicial Review based on defrauding Mr. Smith entitlement to compensation using impairment ratings as a direct method of rating a loss of earnings. 

In 1988, Mr. Smiths pre-injury gross earnings were $18,469.02 . Referring to Appendix E of WCB policies, 90% of his net earnings according to Appendix E would be approximately $14,376.20. Because he was unable to work (total disability) he would have had zero earnings which should have resulted in a life time pension of $14,376.20 annually. By using impairment ratings (20% impairment rating) as a direct method of rating a loss of earnings rather than basing his pension on pre-injury earnings to post injury earnings, Mr. Smith inappropriately received $2875.24 net a year based on multiplying $14,376.20 by 20% resulting in defrauding Mr. Smith of $11,500.96 net annually from 1988 onward.

By using impairment ratings as a direct method of rating an earning loss, if a worker did not receive an impairment rating and had a total loss of earnings or a partial loss of earnings, a worker would not receive a lifetime pension as legislated in WCA Section 56 (11). (WCB defines a disability in terms of a loss of earnings) Using common sense and logic and the ability to read would result in any one knowing that one size does not fit all. An impairment rating of any percentage would result in a PPD (loss of earnings) anywhere from a 0% PPD to a 100% disability (PTD) depending on the unique characteristics of each individual as is explained in Chapter 1 of the AMA Guides.

As well as workers being defrauded, employers also were defrauded by using impairment ratings as a direct method of rating a loss of earnings. Using the same gross earnings as an example, a worker who did not have a loss of earnings but received a 20% impairment rating would receive $2875.24 annually for the rest of their lives, thereby defrauding employers by having to pay lifetime pensions even though the worker had no loss of earnings but would receive a lifetime pension because the worker had minor difficulties urinating, defecating, brushing their teeth, combing their hair, getting an erection, ejaculating, reaching an orgasm etc which are simple basic activities of daily living. Why would WCB force employers to pay workers with no loss of earnings lifetime pensions because they had minor difficulties urinating, defecating, getting an erection, ejaculating etc. Of course, employers when the accident fund is in a surplus situation, they receive dividends in the billions of dollars as opposed to workers who receive nothing and has resulted in Alberta employers having the lowest premiums in North America on the backs of workers and therefore probably should not be paid restitution.

Question is, why would the Alberta Government, knowing that impairment ratings cannot be used as a direct method of rating a loss of earnings, not have directed the WCB BOD to rescind the policy, re-adjudicate all the claims prior to Jan 1, 1995 based on the correct method of determining an earning loss which was by using a workers pre-injury earnings and compared to a worker’s post-injury earnings to determine an earning loss, especially after the Penny decision by the Alberta Court of Queens Bench and upheld by the Alberta Court of Appeal as well as the courts in Nova Scotia and the Yukon. This questions whether the Government were complicit in criminal fraud which would be reasonable to suggest.

I would suggest that all workers whose injuries occur prior to Jan 1, 1995 and had their PPD lifetime pensions calculated directly on impairment ratings file a complaint with the Office of the Ombudsman using this e-mail as a template which can be edited for each individual’s own use.

Gerald K Miller for Mr. J. Smith

Feb 282019
 

By Gerald

On Wednesday Feb.20, 2019 we attended a Judicial Review which resulted in the Court, WCB Legal Counsel, Appeals Legal Counsel  and I agreeing that the blame for using impairment ratings as a direct method of rating a disability was the WCB BOD who are responsible for enacting policies specific to how compensation is paid. The Judicial Review was specific to how workers and employers were cheated or defrauded by WCB prior to Jan, 1 1995 based on the WCB BOD enacting policy that has resulted in worker suicide, family poverty, family breakups and homicidal thoughts of killing WCB employees when in fact WCB, DRDRB and the Appeals Commission were simply complying with policy enacted by the WCB BOD. This case points out the fact that workers anger is misdirected by blaming WCB, DRDRB and the Appeals Commission for making decisions based on what was believed to be total ignorance or incompetence or deliberate attempt to defraud workers and employers. While some people may wonder why I am concerned with employers, my involvement with workers compensation is and never was as a worker advocate. My concern has always been fairness and well reasoned decisions by adjudicators. The Judicial Review did conclude with the agreement by all parties including the court that by using impairment ratings as a direct method of rating a disability besides defrauding workers resulted in defrauding employers who were paying workers life time pensions despite the fact that they had no loss of earnings, thereby increasing employers premiums determined by lay people (WCB BOD) who did not bother to read the first chapter, especially pages 4 to 18 of the AMA Guides which had they done this they would have most likely not enacted the policy equating an impairment to a disability.    

The adjudication of all claims are based on the WCA, WCB policy and WCB Regulations. The WCA and WCB Regulations are enacted by Government. WCB policies are enacted by the WCB BOD who are selected by the Alberta Government on the basis of having an equal number of the BOD representing workers, employers and the general public. The selection process is supposed to ensure that policies enacted by the WCB BOD are reviewed by the equal number of worker representative, employer representative and public representatives. How or why the WCB BOD enacted policy that used impairment ratings as a direct method of rating a disability whether this was done blatantly or maliciously or whether through ignorance or incompetence as the AMA Guides specifically states on page 13 per verbatim;  

Impairment percentages derived from the Guidescriteria should not be used as direct estimates ofdisability. Impairment percentages estimate the extent of the impairment on whole person functioningand account for basic activities of dailyliving, not including work. The complexity ofwork activities requires individual analyses.Impairment assessment is a necessary first stepfor determining disability.

It was determined by the Court that the WCB, DRDRB and the Appeals Commission were forced by statute to comply with the BOD who through the enactment of policy by the WCB BOD that impairment ratings must be used as a direct method of rating a disability even though the AMA Guides directed that impairment ratings not be used as a direct method of rating a disabilityIn affect the WCB BOD were totally blamed by the Court, WCB Legal Counsel and the Appeals Legal Counsel for defrauding workers and employers out of millions of dollars of compensation and no one could do anything about it because Section 6 (a)(i) of the WCA states that;

The board of directors

                             (a)    shall

                                     (i)    determine the Board’s compensation policy, and according to the Court, WCB Legal Counsel and the Appeals Commissions Legal Counsel left them with no option but to use impairment ratings as a direct method of rating a disability even though it was illegal and determined by three different provincial courts in Alberta, Nova Scotia and the Yukon to be illegal and that they must follow the policy enactment of the WCB BOD even if using impairment ratings used as a direct method of rating a disability is inappropriate and contrary to the WCA.  

An example of criminal fraud and supported by the Calgary Commercial Crimes Unit was presented to the Court through the enactment of the WCB BOD  policy where a worker who was totally disabled would receive a partial disability pension by using impairment ratings as a direct method of rating a disability rather than using pre-injury earnings as a reference to post injury earnings as they began doing on Jan 1, 1995 after the Court of Queens Bench and the Alberta Court of Appeal determined that using impairment ratings in determining disability was not in compliance with the WCA. For example: If a worker had a 20% PCI rating, this rating would be used to determine a disability rather than using pre-injury to post injury earnings to determine a loss of earnings. An actual case (my client) was presented to the court involving a 1988 accident where the worker’s 90% of net resulted in pre-injury earnings of $14,000 a year and his post injury earnings was zero dollars resulting in a $14,000 net loss of earnings annually. Rather than pay a worker a $14,000 loss of earnings, WCB, DRDRB and the Appeals Commission would through the BOD policy by using impairment ratings as a direct method of rating a disability would multiply $14,000 net earnings times 20% which equals $2800.00 which is $11,200  less than what a worker is entitled to resulting in defrauding a worker, forcing the worker into poverty, family breakups, suicides and intentions of killing WCB employees when they were simply following WCB BOD policy. On the other hand the same worker earning pre-injury earnings of 90% of net of $14,000 a year with no loss of earnings when multiplied by 20% would receive $2800 a year for the rest of his/her life despite having no earning loss thereby defrauding employers. Worse yet, workers who did not receive an impairment rating (0%) and had a loss of earnings would receive nothing as multiplying any amount of money by 0% results in zero loss of earnings.  Questionably also is why would WCB pay life time pensions to workers who have difficulty in defecating, urinating, brushing their teeth, combing their hair, getting an erection, reaching a orgasm and still are capable of working. That does not make sense but apparently it makes sense to the WCB BOD and embraced by WCB, DRDRB and the Appeals Commission and that is precisely what impairment ratings are used to assess. Impairment ratings have got nothing to do with the ability to work and determining an earning loss. This is the shit system that the Government has forced onto workers and employers and administered by a bunch of highly paid goof balls. A good example of this shit show can be found by reading the first Appeals Commission decision that comes up when you input “permanent clinical impairment” is Decision 2003-873. The worker was provided with a 8.13% PCI rating which these pathetic morons used as a direct method of rating a PPD of 8.13% and were paying him a lifetime pension despite the fact that he had no earning loss as stated in para 13. Why would any one pay this worker a lifetime pension when he had no loss of earnings. This basically results in defrauding the employer by having to pay a lifetime pension to a worker who had no loss of earnings and in reality received a windfall gift from WCB at the expense of the employer. On the other hand this same worker who may have been an older uneducated heavy manual laborer who could not adapt to performing other work would receive the same 8.13% PPD derived form a PCI and determined to be totally disabled but would receive only 8.13% of 90% of net earnings. These are the highly paid morons, supported by the Government who decide what workers are entitled to and employers are paying out when there is no loss of earnings.

In legal terms, the WCB BOD are or were acting in bad faith as well as misfeasance in public office by using impairment ratings as a direct method of rating a disability despite clearly written language in the AMA Guides specifying that impairment ratings cannot be used as a direct method of rating a disability. 

It is noted that the WCB BOD are not protected by legislation and are not entitled to making what may have been an honest mistake unlike WCB, the Appeals Commission and Medical Panels who are not culpable and cannot be sued. The WCB BOD can be sued as they have no protection under the WCA. Being that the WCB BOD are selected by the Government, it is apparent that the Government has to direct the WCB BOD to rescind their policy of using impairment ratings as a direct method of rating a disability prior to Jan 1, 1995, grandfather all claims and pay workers what they were and are entitled to. As well, workers who did not have any earning losses but received life time pensions, WCB must be directed to reimburse employers for any increases in their premiums or change their experience ratings to reduce their premiums. 

Questionably is if the Government does nothing it would question their sincerity to make changes and correct the wrongs to workers and employers. By correcting what was and is an abuse of power, bad faith and misfeasance in public office by the WCB BOD prior to an election, it may result in more people voting NDP rather than Conservative as all of this fraud occurred under the regime of the Conservative Government who must have known of the massive fraud but did nothing. Having had more experience than any one else over the last 30 years with the adjudication of claims, I remain convinced that the best thing for workers and employers is to have the Government simply abolish the entire system rather than have workers gullible to  believe that the system was established to assist them and then find out that this was nothing but a lie. That is a fallacy as the system has a history of destroying lives and the only reason it exists is to protect the employer from litigation as witnessed by a recent decision of a court in the U.S. awarding 14 million dollars to a worker’s estate after being diagnosed with mesothelioma and dying and whose employer did not have workers compensation coverage who had opted out. Had the employer been covered under workers compensation, the employer would not have been sued and the estate of the worker would have wound up with peanuts.

The Government by forcing workers and employers into one of the most corrupt organization in the world created the darkest day in human history. I say this because it is true. Prior to June 1, 1996, Case Managers would advise workers to apply for CPP disability benefits to increase their ELS. Workers would apply for CPP disability benefits believing that the additional pension would help them pay for the necessaries of life. When their application for CPP benefits was accepted, worker’s entire CPP disability pensions were immediately seized and their ELS was reduced or eliminated. Other provinces because workers pay 50% of the premiums, could legally claw back only 50% of workers CPP disability unlike Alberta who clawed back 100% of the CPP disability pension depositing this money in the accident fund, thus resulting in workers subsidizing employers in this province by reducing the amount of premiums employers pay. Although, WCB stopped clawing back CPP disability pensions on June 1, 1996, workers whose injuries occurred prior to June 1, 1996 still continued to have 100% of their CPP disability pensions clawed back. Besides this, Case Managers would advise workers that in order to get work, they would have to lie about their health and ability to work. I have verified this with workers and employers who had the belief that if a worker signed a contract and swore that they had no health conditions this would be a valid legal contract. In reality it was nothing more than a piece of paper that meant nothing.

Interesting in the Judicial Review, the Judge commented on the Penny case questioning her ability to read and comprehend the decision. According to her version of the Penny case, the Alberta Court of Appeal did not uphold the decision of the Court of Queens Bench that using impairment ratings as a direct method of rating a disability was not in compliance with the WCA. According to her, the Alberta Court of Appeal disagreed with the Alberta Court of Queens Bench and drew my attention to para. 14 of the Penny case and I advised her that when reviewing any document, you do not read one part of the document, you read all parts of a document. I asked her if in fact the Alberta Court of Appeals had not agreed with the Alberta Court of Queens Bench, then why did the Alberta Court of Appeals dismiss the appeal of the Alberta Appeals Commission. She refused to answer and sat their dumbfounded that I was questioning her ability to read and comprehend what she was reading. Overall, she was a very nice lady and did allow the case to proceed with very little of the usual court procedures.  

As usual even after the Judicial Review, I had and will proceed with a back up plan as I did expect to lose because of the WCA supporting an administrative system where policy is enacted by goof balls that cannot be questioned by adjudicators and the courts but can be remedied by Government intervention. Fortunately, I was retained by the worker at no cost and unlike other workers who retain lawyers or worker advocates who charge thousands of dollars for retainer fees as well as costs and disbursement the worker I represented is not being left with massive debt despite losing the Judicial Review. 

My back up plan is to file a complaint with the Office of the Ombudsman to investigate whether the fraud was the fault of the WCB BOD or was the WCB BOD’s policy of using impairment ratings as a direct method of determining a loss of earnings a misunderstanding by adjudicators. On review of the WCA and WCB policy there is nothing in either one that directs that an earning loss is to be determined by multiplying 90% of net earnings by an impairment rating, thus possibly exonerating the WCB BOD. I am presently writing up the complaint to the Ombudsman and when completed I will send a copy of the complaint to every one and especially to those workers whose accidents occurred prior to Jan 1, 1995 who were defrauded by determining an earning loss by multiplying 90% of net earnings by an impairment rating. I believe that all workers should send in the copy of my complaint that I will send to every one as an attachment, edit it where necessary based on their own circumstances and simply sign their name to the document and send it in and wait for the Ombudsman to respond. This will also determine whether the Ombudsman is simply a yes person for the Government and refuse to upset the sacred cow or will actually recommend to the Government to reimburse employers and pay workers what they were entitled to.

Jan 312019
 

By Gerald

Both the Senate and House of Representatives in Hawaii are now 
considering identical bills that would require workers compensation 
payers to reimburse patients who are prescribed medical marijuana under 
state law permitting them to use cannabis.,,Nine of the 25 state 
senators are backing S.B. 1523, introduced Thursday, the same day Rep. 
Dee Morikawa, D-Lihue, unveiled H.B. 1524.,,Both measures follow the 
state’s study on issues surrounding medical marijuana, legalized in 
Hawaii in 2000, according to identical text accompanying both bills, 
which would add marijuana to the language in the state’s workers comp 
law pertaining to prescriptions for injured workers.,,Both bills would 
subject payers to a fee schedule and require an injured worker to obtain 
a physician’s certification that he or she is eligible for enrollment in 
the state’s program governing medical marijuana, and that cannabis “may 
be reasonable and necessary medical treatment only where an authorized 
health care provider certifies that the potential benefits of the 
medical use… would likely outweigh the health risks.”,,Included in the 
language in both bills are provisions against paying for drug 
“paraphernalia” and growing and cultivating of one’s own medical 
cannabis, which must come from a licensed producer. Both the Senate and House of Representatives in Hawaii are now considering identical bills 
that would require workers compensation payers to reimburse patients who are prescribed medical marijuana under state law permitting them to use cannabis.,,Nine of the 25 state senators are backing S.B. 1523, 
introduced Thursday, the same day Rep. Dee Morikawa, D-Lihue, unveiled 
H.B. 1524.,,Both measures follow the state’s study on issues surrounding 
medical marijuana, legalized in Hawaii in 2000, according to identical 
text accompanying both bills, which would add marijuana to the language 
in the state’s workers comp law pertaining to prescriptions for injured 
workers.,,Both bills would subject payers to a fee schedule and require 
an injured worker to obtain a physician’s certification that he or she 
is eligible for enrollment in the state’s program governing medical 
marijuana, and that cannabis “may be reasonable and necessary medical 
treatment only where an authorized health care provider certifies that 
the potential benefits of the medical use… would likely outweigh the 
health risks.”,,Included in the language in both bills are provisions 
against paying for drug “paraphernalia” and growing and cultivating of 
one’s own medical cannabis, which must come from a licensed producer.>

Question is why the Alberta Government does not enact legislation 
forcing WCB to pay for medical marijuana. WCB has a duty of care to have 
their doctors support a worker’s doctor if they prescribe medical 
marijuana. Questionably if a worker commits suicide because they are 
forced by WCB to continue using opioids that are paid for by WCB rather 
than to pay for a proven and scientifically supported pain killer would 
the family of the deceased worker be able to sue WCB.

Questionably is why some worker’s medical marijuana is paid for by WCB 
and other worker’s medical marijuana is not paid for which can be 
verified by going to Canlii and reading Appeals Commission decisions. 
Treating disabled workers differently is a human rights violation as you 
cannot pay for medical marijuana for one or more workers worker and not 
then pay for medical marijuana for others. That is discrimination.