Nov 082018
 

By Gerald

While reviewing case law I came across a decision by the Alberta Court of Appeal which I had to read several times. I always thought that when a worker filed a claim that WCB was the unbiased neutral party.  Apparently this is not so as explained in a decision by the Alberta Court of Appeal. Click on the following link and scroll down to paragraph 83 https://www.canlii.org/en/ab/abca/doc/2005/2005abca276/2005abca276.html?searchUrlHash=AAAAAQAGZGF2aWNrAAAAAAE&resultIndex=3

According to the court it is stated that;  As to the third and fourth factors, it should be noted that Klemke has a more limited interest in this process than the WCB or Mr. Davick. Here, the ultimate dispute is between the worker and the WCB, as any awarded benefits are paid from WCB coffers. The employer has an indirect financial interest only, through a possible increase in WCB premiums.

It would be fair to conclude that when a worker files a claim that WCB takes on the role of the defendant representing the employer who has only an indirect role in the claim and any dispute is between the worker and WCB This being the case, how then would this not give a reasonable apprehension of bias if the dispute is between a worker and WCB with no direct interest by the employer. This certainly is some bastardized part of the law which obviously is not a civil legal standard or any other legal standard. 

Mar 042018
 

By Gerald

Ms. Gray, Notley and Ganley

Being that the SCC has determined that workers compensation boards must now apply human rights legislation specific to accommodating disabled workers, when can we expect that the WCA will be amended to include this change. At present there is nothing in the WCA that directs that the “Board” or the Appeals Commission must apply the the Alberta Human Rights Legislation. SCC decision; https://www.canlii.org/en/ca/scc/doc/2018/2018scc3/2018scc3.html?searchUrlHash=AAAAAQATZHV0eSB0byBhY2NvbW1vZGF0ZQAAAAAB&resultIndex=3

At present WCB Policy 04-05 Part I states; “there is no requirement under the WCA for employers to rehire injured workers. However, under human rights legislation, employers have a duty to accommodate workers with disabilities. Human rights legislation applies to workers compensation situations in the same way as other disabilities. The WCB does not adjudicate disagreements or complaints about failure to comply with human rights legislation. Concerns about discrimination or undue hardship must be filed with the Alberta Human Rights and Citizenship Commission.

Rather than disabled workers having to file human rights complaints against employers, do workers now assume that the Government will comply with the SCC decision and will enact legislation giving jurisdiction to WCB and the Appeals Commission to direct that employers comply with the Alberta Human Rights Act to accommodate disabled workers rather than forcing workers to file human rights complaints against employers when employers do not offer modified work. At present before a human rights complaint can be filed, the claim must go through the Appeals Commission to be finalized before they will get involved. Obviously, AHRC are aware that there is a statute of limitations on complaints (1 year) and if a complaint is not filed within this period, the complaint will be dismissed. Through legislation or the absence of legislation, AHRC cannot extend the statute of limitations as can the Appeals Commission and the DRDRB under the WCA. By the time a claim goes through the Case Manager, DRDRB and the Appeals Commission, the statute of limitation would be breached.

This also affects WCB’s modified work program which is presently a voluntary program between a worker and the employer. Modified work is thus no longer voluntary, it becomes mandatory with WCB and the Appeals Commission having to enforce the accommodation of all disabled workers. Many things would change as by forcing employers to accommodate disabled workers, no longer will workers be deemed into performing imaginary work for imaginary earnings,  as the earnings they receive will be actual earnings.

Being that the former Conservative Government did not enact legislation or regulations after the decision of the SCC by directing that chronic pain be recognized which WCB is still not in compliance and the Alberta Government has never enacted legislation or regulations, are we to expect that the NDP Government will do the same as the former Conservative Government by ignoring the SCC and allow WCB and the Appeals Commission to carry on abusing workers, treating them with unfairness, disrespect and indifference. Besides, not complying with the SCC that all workers compensation boards must recognize pain, the Government after the Alberta Court of Appeal determined that impairment ratings cannot be used as a direct method of rating disabilities, the Government never did direct WCB to stop using impairment ratings as a direct method of rating disabilities which when doing so resulted in providing pensions to some workers who did not have an earning loss and inadequate pensions to workers who had a significant earning loss. What is the point of having laws if WCB are immune from these laws and is the government culpable if they are aware that a government arms length agency is breaking the law. The Government knows or has known for 25 years that impairment ratings cannot be used as a direct method of rating a disability and as well as knowing for 15 years that the Alberta WCB does not recognize chronic pain when providing compensation as they only provide medical treatment for chronic pain but do not provide compensation for any vocational rehabilitation, earning loss or permanent impairment ratings. This can be verified by reading the Alberta Appeals Commission Decisions on Canlii. It would be fair to conclude that knowing this and not doing anything would suggest that the Government is complicit and in collusion with WCB and the Appeals Commission to cheat employers and workers.