Preventative Law For Effective Healthcare Management (September 2012)
A major thank-you to Paula Kirman for filming injured workers on June 28 talking about Bill 30 and their personal stories of dealing with the WCB. Here is the video!
Video by Doug Brinkman:
WCB policy 03-01 Part II Application 7 specific to chronic pain and chronic pain syndrome is broken down into two parts, one part of the policy is specific to chronic pain and the other part of the policy is specific to chronic pain syndrome. According to the policies and how they are interpreted by WCB, DRDRB and the Appeals Commission, workers diagnosed with chronic pain will not receive full compensation benefits as would other workers who are diagnosed with discernible organic diagnosis. Workers diagnosed with chronic pain may receive treatment only as per WCB policy, with no monetary benefits or any rehabilitation benefits. Clearly, this is discrimination. WCB policy 03-01 Part II Question 2 states in part: “WCB may consider treatment for chronic pain” but only if chronic pain has the prescribed characteristics found in question 2. WCB Policy 03-01 Part II Question 3 states in part; “chronic pain syndrome may be compensable” meaning that chronic pain syndrome is compensable ( Compensation is based on loss of earnings, if a worker meets all the prescribed conditions as well as marked life disruption
If a worker is diagnosed with chronic pain syndrome, according to WCB policy, they will receive full compensation which would include monetary benefits and vocational rehabilitation which also results in discrimination against workers diagnosed with chronic pain who only receive treatment for chronic pain and is contrary to to Alberta Human Rights Legislation and Section 15.1 of the Charter. This is not rocket science and questions what convinced Smallwood and Mason to dismiss my complaint despite being upheld by the Southern Regional Director (Pardeep Gundara), the Southern Regional Investigator, Shirleen McGovern( Lawyer) and the Director’s Legal Counsel, Jim Foster. Questionably is if WCB paid Mason and Smallwood to dismiss the complaint because the overwhelming cost of having to rehear all claims involving chronic pain and having to pay workers hundreds of millions of dollars in restitution along with interest for the benefits workers are supposed to be entitled to. The complaint was so simple that any moron should have been able to understand, yet Smallwood and Mason dismissed the complaint based on what they considered to be lack of prima facie evidence to support the complaint. Clearly if workers diagnosed with chronic pain would only receive treatment, no monetary benefits, no vocational rehabilitation, they are not being treated equally but clearly being treated differently than other workers who received full monetary benefit.
As every one knows or should know, Section 56 of the WCA provides a lifelong pension for an impairment rating that WCB were using illegally as a direct method of rating a disability. That has been factually proven by the Alberta C of QB and the Alberta Court of Appeals, the courts in Nova Scotia and the Courts in the Yukon. This means that in order to be assessed a PPD in compliance with Section 56, a worker must receive a PCI rating. If a worker does not receive a PCI rating, a worker would not be entitled to a PPD and life time pension meaning that all workers diagnosed with chronic pain would not receive a PCI rating, no PPD rating and no lifetime pension. PCI ratings are derived from the Alberta Guides and if the Alberta Guides are silent or deficient, then a physician in order to provide a PCI rating may use the AMA Guides latest edition. The Alberta Guides do not and and to this day never have provided a PCI rating for chronic pain which leaves only the AMA Guides that did not provide a PCI rating for chronic pain until 2007 when the AMA Guides 6th Edition were published. Questionably then if all workers must be assessed a PCI rating, what “Guides” did WCB use to assess a PCI rating prior to 2007. Impairment ratings cannot fluctuate by any more than 10% which would mean that physicians had to have some sort of guidelines to ensure consistency. No one in WCB can answer this question as no one knows how they could have assessed a PCI rating without any “Guides” Further questioning is, “can foreign doctors who have no standings in Alberta or Canada determine on behalf of WCB what compensation workers in Alberta will receive. In my legal opinion, this would be illegal. No one at this time knows who provided the impairment ratings for the Alberta Guides and we know that American physicians provided impairment ratings for the AMA Guides meaning that foreign physician are in fact determining what benefits workers in Alberta would receive.
Worse yet because impairment ratings do not measure a workers ability to work, workers who were diagnosed with erectile dysfunctions, had difficulty reaching an orgasm, brushing their teeth, defecating, urinating prior to Jan 1, 1995 would receive up to a 15% PPD rating for the rest of their lives when WCB were illegally using impairment ratings as a direct method to determine a PPD rating and after Jan 1, 1995 would receive a 15% lump sum payment for a NELP as opposed to workers diagnosed with chronic pain who received nothing but treatment How then could Mason and Smallwood determine that workers diagnosed with chronic pain were being treated equally. Receiving no benefits other than treatment for chronic pain while other workers receive full benefits such as a loss of earnings, vocational rehabilitation and as well medical treatment would not be considered to be equal treatment.
Any one who claims that the administrative law system is far better than having claims heard in the courts has to have rocks in their head. Administrative law systems and adjudication by morons who have no training in medicine, no training in law, have no idea how to interpret legislation, regulations or WCB policy should not be adjudicating claims when no one has a clue what they are doing has no advantage over having claims heard in the courts under civil law. Administrative systems could work if we had a Justice Minister who was an expert in administrative law as it pertains to workers compensation, a minister in charge of WCB who knew the system inside out and a premier who also was an expert in administrative law as it pertains to workers compensation. Unfortunately this is not the case with all of the a fore named people having as much of a clue as the people adjudicating claims. If administrative law was better why is it that claims that go back nearly 50 years are still being disputed and there are thousands of disputed claims with many workers simply giving up or committing suicide. The same crap that existed when the Conservative Government were in power is the same crap that will continue during the time the NDP Government is in power with very minor changes being made to a corrupt and badly managed system to the detriment of workers. Anything worth doing is worth doing right and if you cannot do it right, scrap the entire system, entitle workers to social services benefits and allow workers to sue the employer under the rules of civil procedure and not give workers the false sense of security that this is an inquiry based system and all they have to do is file a claim if they are injured and WCB will look after them. This is nothing more than a crock of shit and not realized by workers until they are injured, only to find they are on the outside looking in.
The whole system is convoluted and ambiguous with no one including the Office of the Ombudsman. I requested that the Office of the Ombudsman make this determination as to whether the system is an Inquiry system or an Adversarial system. The answer to this was that when a claim is filed, it is an Inquiry system and the burden of proof is on the “Board” It becomes an Adversarial system when a worker appeals the decision of the Case Manager according to the Office of the Ombudsman. According to Justice Millar who presided over a Judicial Review which we won, the system is based on an Inquiry system and remains an Inquiry system throughout a claim. Question is, does any one really know how the system works. You would think that after over 100 years that the system would be a smooth running system rather than a system that no one can explain the purpose and philosophy of workers compensation and if it is even required being that the majority of workers wind up on Social Services or CPP Disability.
Dear members of CIWAA,
I wanted to draw your attention to a just-released report we (Jared Matsunaga Turnbull and Bob Barnetson) partnered on with the Parkland Institute called “Safer by Design: How Alberta Can Improve Workplace Health and Safety”. The report draws on a survey of 2000 Alberta Workers and their own experiences with workplace health and safety. It reveals that:
1. Most workplace injuries are not reported
2. Most employers violate Alberta’s safety rules
3. Workers are afraid to exercise their safety rights
On June 12, 2018, I filed for a Judicial Review on behalf of a worker who was illegally provided impairment ratings that were used as a direct method of rating disability and subsequent loss of earnings. WCB, DRDRB and the Appeals Commission were advised by the Alberta Court of Queens Bench and supported by the Alberta Court of Appeal in the Douglas Penny case (1993) that the WCA is specific to determining disability, not impairment and using impairment ratings as a direct method of rating a disability without converting the impairment rating to a disability by considering a workers individual and unique characteristics, specifically age, education and prior work experience was not in compliance with the Alberta WCA. The Appeals Commission appeal this decision by the Alberta C of QB to the Alberta Court of Appeal and can be found on Canlii. It was upheld by both Alberta Courts that the WCA specified that workers were to receive compensation based on the degree of disability, not on the degree of impairment.
Specifically, you cannot use the words “impairment” and “disability” interchangeably as both have different meanings. An impairment is a medical term as opposed to a disability which is a legal term and explained by the Yukon Courts in a Judicial Review of the Yukon WCB using impairment ratings as a direct method of rating a disability. The Yukon Supreme Court agreed with the Alberta C of QB and the Alberta Court of Appeal that doing so is not in compliance with he WCA As I shall explain in simple layman’s terms, Section 43(1) of the WCA states that the evaluation of a workers disability shall be made on behalf of the “Board” by one physician and one claims adjudicator employed by the “Board” This directs that a physician on behalf of the “Board” provide the impairment rating which is the first step. Using the impairment rating as a “guide or reference, the claims adjudicator then must convert the impairment rating to a disability rating by considering the type of injury that resulted in the impairment ratings and then convert the impairment rating to a disability rating. For example: If two workers received an impairment rating for an amputation of a lower extremity, (ankle) both would receive a whole person impairment rating of 25% by the physician on behalf of the “Board” The physicians job is finished and the next step is taken by the claims adjudicator who then applies the impairment rating to the individual. If the individual does not incur a loss of earnings (interpreted by WCB as a disability) because of the amputation of the ankle, the impairment rating becomes a moot point and that individual receives no disability rating or subsequent loss of earnings. On the other hand if an unskilled, poorly educated worker, performing heavy manual labor has their ankle amputated, this would result in having the impairment rating converted to a disability rating (loss of earnings) by the claims adjudicator to determine the Section 56(7) lifetime pension of the individual. There is nothing difficult in interpreting the responsibilities of WCB in providing compensation for a disability. WCB by statute (Section 69) do not have to provide any compensation for an impairment regardless of whether the injury occurred prior to Jan 1, 1995 or after Jan 1, 1995.
Questionably is why would WCB provide lifetime pensions to workers who had no disability, no loss of earnings but had difficulty attaining an erection, difficulty urinating, defecating, reaching an orgasm which is what impairment ratings are based on as impairment ratings exclude “work” as a reference in assessing an impairment. Impairment is strictly based on difficulties in performing simple basic activities of daily living. questioning further is why should employers pay into a sick system that provides life time pensions to workers who are not disabled, have no loss of earnings but have difficulty getting an erection, difficulty reaching an orgasm,defecating, urinating, brushing their teeth etc.
This was all determined by the Alberta Courts in 1993 and WCB, DRDRB and the Appeals Commission continued to use impairment ratings as a direct method of rating a disability despite the Alberta Courts decision that went against the Appeals Commission questioning why the former Justice Ministers selected by the Conservative Government did not direct that WCB, DRDRB and the Appeals Commission comply with the decision of the Alberta Courts and obey the law by using impairment ratings as starting point or a precursor in determining a disability by taking into consideration the age, education and prior work experience of the individual worker which is the only method that is supposed to be used in determining disability as impairment ratings do not measure an individuals ability to work as work is excluded in the evaluation of an impairment.
According to Section 3 of the WCA, the “Board” has the capacity and the rights, powers and privileges of a natural person, yet they are not held to the same legal standard as all natural persons who cannot break the law, criminally or civilly and then claim they made a mistake. If any natural person makes a mistake criminally or civilly, they are held accountable, can be incarcerated or sued, yet WCB, MRP, DRDRB, and the Appeals Commission cannot be held accountable when they misinterpret a statute to protect the accident fund which has been the primary purpose of WCB, WCB BoD, the Government, DRDRB and the Appeals Commission. It is nearly impossible to prove that a claim was denied intentionally or with malice and when mistakes are made by adjudicators who are jokingly believed to be experts when in fact they have no expertise at all in medicine or law. Questionably are these people stupid, totally incompetent and may have made an honest mistake, then why are these people adjudicating claims if they have no idea what they are doing. Obviously, the buck stops at the top in the adjudication of claims and at the top of the heap is the Appeals Commission who should know precisely the enabling statutes, regulations and the purpose, philosophy and appropriate use of WCB policies which have to comply with the WCA. As well the Appeals commission also must adhere to legal precedence which they do not adhere to a witnessed by the fact that the Appeals Commission have never questioned WCB policy specific to chronic pain which is not in compliance with section 15 of the WCA. If not for the protection of the accident fund by Mason and Smallwood (Former Chief Commissioner of Alberta Human Rights and Smallwood who was the former Director of Alberta Human Rights) who despite objections from the Southern Regional Director, Alberta Human Rights Legal Counsel dismissed my complaint specific to the decision of the SCC in the Martin/Laseur case involving chronic pain. Question is; were Mason and Smallwood corrupt or were they simply ignorant.
An interesting survey was conducted in the U.S. that found that claims that were denied illegally costs almost double the claims that were accepted and f the claims that were illegally denied, over 67% of the denied claims were over turned by the various state courts. A same study done in Alberta would result in the same findings. Unfortunately, the Alberta Government have not enacted legislation that would force WCB to pay compound interest on long term claims that were illegally denied rather than WCB at present pay simple interest which in the real world does not happen. When claims are illegally denied, a worker should receive compound interest on the back pay and as well punitive damages of at least a half million dollars. In reality, Norrie, Carpenter and Cunliffe during their review of the “Act”, WCB policies, regulations etc., and who obviously knew very little about how the system operates only touched on very minor or inconsequential problems that face workers in what is a hostile environment after they are injured.
We have a Justice Minister and a Minister in charge of the WCB and yet neither one of these individuals ever review legal precedence by Alberta Courts or other provincial courts when the decision goes against the Appeals Commission or WCB who continue to circumnavigate the law by not complying with the decisions of the courts which include the SCC. Ambiguity and convoluted policies present decisions that question the mentality of the people who are involved in the process. For example: when adjudicating a claim, the legal standard in workers compensation systems is “balance of probabilities”which is the legal standard in the civil justice system, yet WCB goes beyond the legal standard by enacting policy that causation for occupational diseases and injuries must be based on a higher standard than in criminal law. WCB Policy 01-01 Part II Application 2 Question 4 that states per verbatim; WCB requires scientific evidence of a causal link to the workplace before accepting responsibility for an occupational injury or disease. WCB Policy 02-01 Part II Application 7 Question 7 states per verbatim; “when an occupational exposure has been established, a relative risk of 2.0 or higher makes it more likely than not that the workers occupational exposure materially contributed to the workers risk of developing the disease” Scientific evidence WCB refers to is based on epidemiological evidence by comparing an occupational group to the general population and if the occupational group has twice the risk as the general population, then the claim may be accepted thereby creating a higher legal standard for occupational disease or injuries that are not in compliance with the SCC decision cited as British Columbia (WCAT) v. Fraser Health Authority where the SCC made it quite clear that causation is not to be based on a higher legal standard, (scientific proof) and must be adjudicated on common sense and logic which is supposed to be used in determining a balance of probabilities. This questions why firefighters and first responders had to meet this higher standard of proof which in essence is discrimination under Alberta Human Rights Legislation and Section 15 of the Charter by having occupational diseases meet a higher standard than acute injuries. Clearly when there is no evidence either for or against in the workers compensation system, the benefit of doubt always goes to the worker but in Alberta, it never does.
With the findings and recommendations of Norrie et al, it is apparent that the system did not work and has not worked for decades, workers were being treated with contempt, disrespect and atrocities beyond any human comprehension. The problem is that the NDP by phasing in the effective recommendations and making the legislation effective on Dec. 15, 2017, Jan 1, 2018, June 1, 2018 and Sept. 1, 2018 should have grandfathered the legislation retroactively to include workers whose claims and benefits were illegally denied. Why would any Government when they know that workers have been abused by the system as was found by the previous Friedman and Doerkson investigations and now the Norrie et al investigation for decades prior to the new legislation exclude workers and their families from getting the benefits they were entitled to by ensuring that the administration of justice must be done or seen to be done. Obviously by not providing retroactive legislation, the Government is simply protecting the accident fund to ensure employer premiums would remain stable even if it was on the backs of workers whose injuries occurred prior to the new legislation. This in effect indicates that the NDP could care less how workers were treated prior to the effective dates. This leaves those workers who claims occurred before the effective dates no other choice but to sue the Government and WCB for these atrocities that occurred prior to the effective dates.
The Judicial Review that I am going forward with would support any accusation and subsequent civil suit of misfeasance in public office along with other obvious acts by WCB, DRDRB and the Appeals Commission that can be factually proven such as illegally clawing CPP disability benefits from workers whose CPP disability benefits were provided for pre-existing non compensable injuries or clawing back all of the CPP disability benefits for work related injuries when the worker has paid 50% of the premiums. This money clawed back from CPP disability benefits subsequently goes into the accident fund to reduce premiums paid by employers which is not in compliance with the historic agreement. There is also the issue of not providing any benefits for chronic pain other than treatment as workers diagnosed with chronic pain do not receive vocational rehabilitation or any monetary reward if they do not receive a PCI rating for chronic pain which is not in compliance with the SCC decision in the Martin/Laseur case. There also remains the fact that it is illegal in the workers compensation system to put the burden of proof on a worker when the original intent of the Meredith Principles was to have an independent and neutral “board” who had exclusive jurisdiction to investigate and gather the facts. Rather than WCB investigating and gathering the facts, workers are placed in the impossible situation of proving their claim which is the basis of the American system which is based on an adversarial system. Over the years with the assistance of Government, WCB has destroyed what started off as a good system whose main and only intent was to care for injured workers so they did not become a charge on family, friends and society. The main intent now is to protect the accident fund by deliberate acts of fraud and misfeasance by the Government, WCB, DRDRB, Appeals Commission, Alberta Human Rights Commission and the Office of the Ombudsman.
I will subsequently and in my own good time explain the issues of illegal CPP disability claw backs, chronic pain, illegally placing the burden of proof on workers, not giving the benefit of doubt to workers when this also was the intention of Meredith and which essentially separates the civil justice system from the workers compensation system. Basically, no matter how much lipstick you put on a pig, at the end of the day, the pig is still a pig.
Alberta WCB is still broken Bill 30 did nothing to help long term claims. Alberta injured workers do not have the support , manpower or finances to get out there and let the public know the suffering never ends.
For injured workers the reality is clear, the WSIB in Ontario is broken and the loss and pain is on the backs of injured workers.
So every June 1, injured workers and their allies rally at Queen’s Park for Injured Workers Day, to highlight the flaws of the compensation system and the fight we need to continue to bring to the Legislature and the Ministry of Labour.
With just a few days before the election, the rally and march is an opportunity to make a stand, not only for injured workers but for all workers and people concerned about social and economic justice, that we have had enough of austerity and cuts. The rally on June 1, will send a message that no matter who gets elected, the age of austerity is over.
We can be sure that if Doug Ford’s Conservative Party is elected, privatization of the workers’ compensation system will be on his agenda – just as he will push for privatization across the board. We know that if this happens, it is low-income, vulnerable, and marginalized people who will suffer. So the Injured Workers’ Day rally is part of the fightback. We will stand up and resist, and take back our compensation system
On the eve of June 1, the Women of Inspiration, a group which offers support, knowledge transfer, education and outreach to Women Injured at Work, gathers on the lawn of Queen’s Park for “Sleepless in Queen’s Park.” This overnight vigil provides a safe space for injured workers to share poetry and song, and to tell stories of their battles for fair compensation because, if “injured workers can’t sleep; how can their elected representatives?”
On the following day of June 1 at 11:30am, injured workers and advocates join the Women of Inspiration at Queen’s Park to rally for Injured Worker’s Day. Joined by labour and community allies, injured workers from across Ontario will take to the streets, marching on the Ministry of Labour, calling on the government to deliver fairness from the workers’ compensation system.
In its 35th year, the theme for this year’s Injured Workers Day is driven by the success and hard work of the Ontario Network of Injured Workers’ Groups (ONIWG). ONIWG is an umbrella organization of injured worker groups in communities spread throughout the province, campaigning on the theme that Workers’ Comp is a Right. This campaign is demanding the compensation system return to its roots as a system that provides support and support and care for workers who have suffered injuries or illnesses on the job. The key campaign demands for a system that protects everyone are:
- No cuts based on phantom jobs
2. Listen to injured workers’ treating healthcare professionals
3. Stop cutting benefits based on pre-existing conditions
Through province-wide education and action on these issues, injured workers have successfully pushed their demands onto the political radar. We have collected thousands of petition signatures supporting the campaign demands, and heard MPPs read out the petition dozens of times in the Legislature. We have seen the NDP include injured worker issues in its platform – the first time since 1990 that a political Party has talked explicitly about injured workers. We have seen new injured worker groups form in communities where they did not previously exist.
So we are building. And after years of austerity and cuts, the compensation system is broken and the time is now to pressure those in power to commit to fundamental changes to restore justice. Join us.