Dec 102018
 

By Gerald

Click on the following link: 
https://www.thestar.com/news/gta/2018/12/09/wsib-staffers-decry-chaos-caused-by-broken-system-thats-putting-injured-workers-at-risk.html

Sadly  enough, the system in Alberta has been broken for years and 
questions why the system is not simply abolished as it serves no useful purpose other than to create jobs for doctors who evidently have taken over the system and has become a total disaster. Questionably whether any system can work when the medical profession gets involved and the 
whole adjudication process is based on medical opinions as to causation, work restrictions, impairment ratings, compensation, psychological evaluations.etc. Any body, organization or system that is based on doctors opinions are doomed for failure.  Workers lives are turned upside down by doctors, especially WCB doctors who provide opinions that are totally false and any one with any access to real medical experts or reliable internet medical information can provide a better medical opinion than WCB Medical Advisors who clearly are not medical experts. I have yet to come across a complex claim and I have reviewed hundreds or thousands of claims.

Why ask doctors anything when the Supreme court of Canada has determined that in the workers compensation system, claims should be based on common sense and logic rather than waiting for decades to determine a claim on medical certainty which in the workers compensation system is not required. No one has to spend millions of dollars on medical studies when the Supreme Court of Canada has determined that in all workers compensation systems there only needs to be a trivial probability of a work related cause.

A much better system could be provided by removing causation from the system and simply going to a system where workers are provided compensation without the need for doctors opinions as to what caused the injury or disease. Who cares other than doctors whose livelihoods are maintained through medical piss fights with each other with the worker caught in the middle. Rather than having employers fund the system which is a lie as employers do not have the financial capability of funding the system so the Government subsidizes the system through our tax dollars by having taxpayers provide income support through Social Assistance and Alberta Health Care. To deny this, a person would have to deny motherhood. A much better system could be put into place where 
employers and employees share the cost of premiums with the same agreement where a worker cannot sue the employer or other workers, causation is no longer the deciding factor and every one could get on with their lives with doctors having to work for a living rather than to prey on workers and fill the heads of ignorant Case Managers, DRDRB deadheads and worse yet the apathetic deadhead Appeals Commission who have been given absolute power to destroy peoples lives whose decisions cannot be overturned by the Minister in charge of these retards who in reality are in charge of the Minister.

We elect governments to be innovative, not to carry on with a dead horse that has long been dead but every one is attempting to resuscitate a horse that has been dead so long that all of the body cavities are filled with rot and maggots. We have had numerous investigations over the last 40 to 50 years and none of these investigations have found anything good about the system and attempting to fix the system has been a dismal failure.

Nov 162018
 

By Gerald

I represented two workers at two in person hearings with a member of the DRDRB on Nov. 14, 2018. The first claim was an appeal of decision to deny house keeping allowance, home maintenance allowance and personal care allowance. Two WCB policies were discussed which were WCB policy 04-07 Part I and II and WCB Policy 04-10 Part I and II. The DRDRB specialist had to have it explained to him how to interpret a serious injury from a severe injury. I had to explain to him that a severe injury was an injury that was prolonged and a serious injury was an injury that was not prolonged. The definition of a severe injury had changed in 2000 by WCB to conform with medical sciences definition by using the word prolong to define a severe injury. This change was also made by the Federal Government by Services Canada to comply with the definition of a severe injury. Severe injury was also defined by AISH. Obviously an injury cannot be considered to be severe if the injury is not prolonged as injuries that are not prolonged will result in total recovery. Having said that, WCB has been defrauding workers since 2000 who have been diagnosed with severe injuries that are prolonged and did not pay them to what they were entitled.

The next issue we discussed was the difference between an impairment and a disability which he argued is the same thing which it is not and was determined in 1993 that an impairment rating was not the same as a disability rating. This also was determined by the Nova Scotia Supreme Court and the Yukon Supreme Court. Questionably is whether he could read and comprehend as he stated that he had read the case specific to the Penny case by the Court of Queens Bench and subsequently appealed to the the Alberta Court of Appeal. According to him the Alberta Court of Appeal over turned the decision of the Court of Queens Bench which if any one can read, the Alberta Court of Appeal upheld the Alberta Court of Queens Bench and dismissed the appeal of the Appeals Commission. The Penny decision was also reviewed by two Appeals Commissioner Rodney Fong (lawyer) and J. McKenna (lawyer) who also claimed that the Alberta Court of Appeal had over turned the decision of the Alberta Court of Queens Bench. Any one who can read knows that the Alberta Court of Appeal dismissed the appeal of the Appeals Commission and upheld the decision of the Court of Queens Bench that had determined that using impairment ratings to determine a disability was not in compliance with the “Act”

For those interested in checking what I have said about Fong and McKenna being idiots who can’t read, go to Appeals Commission decision on Canlii cited as 2016-0810go down to para 68 and 69 and this is all the proof a person needs to show what kind of idiots that are selected by the Government to adjudicate claims. The other idiot involved in this was Jossa who along with Fong are no longer Appeals Commissioners although McKenna is still there. What is needed is to do a whole shakeup of the entire Appeals Commission, terminate them all and attempt to select intelligent people rather than idiots who cannot read. On Feb. 20, 2019 we will be going to court to have this issue of impairment and disability being settled, once and for all.

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.

Nov 142018
 

By Gerald

Click on the following link:
https://www.thepeterboroughexaminer.com/news-story/9029941-after-nearly-24-year-wait-wsib-approves-claim-in-1995-cancer-death-of-general-electric-peterborough-worker/

This is a long standing claim that was reviewed and accepted after 24
years. Questionably is why it took 24 years to be accepted when the
courts have determined that claims do not have to be based on scientific
evidence. Claims are to be determined based on a contributing factor
which according to the courts range from a trivial contributing factor
to a probable factor. If there is no evidence to the contrary, the claim
remains in a neutral state and the benefit of doubt by law has to go to
the worker.

If in fact the NDP would honor the commitment made by the former
Conservative Government and open up all long standing claims, most if
not all of the claims would be accepted based on adjudicating the claims
on a lesser standard than the civil law standard that has been used
illegally by the Alberta WCB and the Appeals Commission.

Nov 122018
 

By Gerald

Questionably is what kind of morons would enact a law as stupid as Section 17(4) of the WCA which states; Each matter shall be decided on the merits and justice of the case and the Board is not bound to follow any previous decisions or ruling of the Board as a precedent in reaching its decisions or making its rulings.This in effect would interact and bring into effect human rights legislation or section 15.1 of the charter as it is illegal to treat individuals differently.While it is apparent that the drafters of the legislation gave discretion to the Board, discretion to rely on previous decisions or precedence, this results in discrimination when one or more workers receive compensation and others don’t. On review of a multitude of Appeals Commission decisions, it is evident that there is a cesspool of incidents of differential treatment. When the Board provide benefits or compensation to one or some disabled workers and with hold the same benefits from one or other disabled workers based on identical claims, this obviously brings human rights into the claim. The WCA is subservient to human rights legislation as legislated in Section 1(1) of the Human Rights Act which states; “Unless it is expressly declared by an Act of the legislature, that it operates withstanding this Act, every law in Alberta is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act” Can WCB provide benefits or compensation to white workers and withhold benefits or compensation from visible minorities. I think not. Using this as an analogy, it is evident that WCB must treat all workers equally by providing equal benefits. In order to comply with human right legislation, if one worker receives benefits for a specific injury, then all workers must be treated equally and all receive the same benefits that were provided to another worker.

Decisions must be consistent based on precedence. With thousands of claims, on review every claim when compared to other claims become identical but result in different decisions which is reason for a human rights complaint. Differential treatment is illegal and contrary to the human rights act and section 15.1 of the charter. Once a decision has been made, all decisions must have the same result.

I have chosen two claims that were brought to my attention, both claims are specific to  diagnosis of dry mouth and medical marijuana so I will keep my analysis to these specific issues.

The reason why I am pointing this out is now that marijuana is legal and proven to be beneficial for chronic pain, rather than prescribing opioids which have very serious side effects and has resulted in thousands of accidental over doses or deliberate suicides. Based on common sense and in compliance with human rights legislation, if one worker is prescribed marijuana and WCB pays for it, all workers must receive the same benefits if prescribed by a physician. If not, a worker can file a human rights complaint based on prima facie evidence to support the complaint by simply going to Canlii and read the Appeals Commission decisions.

It is relatively easy to determine if a worker is being treated differently by simply using Canlii as the source to gather evidence of differential treatment. Go to Canlii and click on Alberta. Scroll down to Appeals Commission for Alberta Workers Compensation Board and click on that. In the document part, input marijuana or dry mouth. Every claim from 2003 to 2018 will come up. Using the document part as a reference, you can input anything that is of interest. Using Canlii as a reference you can also determine how decisions were made in every province in Canada.  This is also useful in determining how the courts determine certain issues. For example: in the document text for “dry mouth” Decision 2010-253 by the Alberta Appeals Commission determined that dry mouth was caused by opioids. Therefore, every worker who are taking opioids and diagnosed with “dry mouth” must be treated equally. By inputting “marijuana” Decision 2018-0463 by the Appeals Commission determined that WCB must pay for medical marijuana. Once one worker is receiving medical aid for medical marijuana, then all workers must be treated equally. Being treated differently is a valid human rights complaint and a person would be able to provide a comparative individual or group of individuals who received benefits that a worker complainant did not receive.

Questionably is who are the morons who enacts laws that are illegal under the workers compensation act. For example Section 24(1)(a) is illegal as was determined by the courts simply because workers compensation is based on a no fault system. Crap like this must be rescinded rather than to have morons denying claims without questioning the validity of the statute or WCB policy. Section 24 (3) is even worse. If a worker is found dead where the worker had the right to be, it is presumed that his/her death arose out of and during the course of the worker’s employment. That being said if a worker fell off a 15 story building and was not using fall protection, the most logical thing to do would be to get some one to hit you over the head with a hammer repeatedly until you died as if a worker was to survive and the worker broke safety rules, the claim would be denied. Better dead than having a claim denied and workers not being able to support themselves or their family. What a crock of shit. Section 24 (2) also is questionable as WCB did not provide benefits for serious injuries until 2013 as in order to receive benefits they injuries had to be severe according to WCB policy. No one knew the difference between a serious injury or a severe injury until 2000 when the definition of “severe” was finally defined. Any injury that is prolonged is now considered to be severe and if it is not prolonged, then it is serious. WCB did change the definition in their policy 04-07 Part I but never told any one as the change would have resulted in workers whose injuries were prolonged would be entitled to back pay and life time pensions. This is the shit show that goes on but what can be expected when no one is in charge of this wretched and corrupt organization.

Nov 112018
 

Additional note from Donna: Check out the background of the Appeals Commission panel. The deck could be stacked – for example, ex case managers, lawyers that just work for Appeals Commission. How could a worker get justice? Many of them were appointed politically years and years ago. Could they be biased?

By Gerald

Click on the following link;
https://globalnews.ca/news/4645307/nb-workers-compensation-rates/

In New Brunswick, they give absolute power to the Appeals Commission and
when the Appeals Commission are doing their due diligence, the
Government and employers want to legislate changes to take away their
power. New Brunswick  has the highest rate of overturning WCB decisions
as opposed to the Alberta Appeals Commission who have the lowest rate of
overturning WCB decisions and is why New Brunswick employers pay more
than double than employers in Alberta, thus supporting Justice Friedman
that the Alberta appeals process is seriously flawed resulting in a
culture of denial.

If employers want their premiums reduced, the answer is very simple.
Introduce safe work practices so that when workers go to work in perfect
health, they should return home in perfect health. If not, then instead
of fining employers put them in jail, not give some Mickey Mouse fine. I
can assure any one if employers were incarcerated for any work injuries,
there would be very few accidents and premiums would be reduced.
Encouraging employers to create unsafe work environments by not coming
down on them severely create jobs for WCB personnel which is much like
our justice system, the more crime that occurs, the more jobs that are
created and maintained. Eliminate crime and there would be thousands of
unemployed lawyers, judges,police, etc.

Nov 082018
 

By Gerald

Effective Nov. 1, 2018, Ms. Dale Wispinski was appointed by the NDP
Government as the new Chief of the Alberta Appeals Commission. I have
met Ms. Wispinski during a Judicial Review and if she is to do her job,
she needs to receive training in how the system is supposed to operate
in the adjudication of claims. According to her belief, she believes
that in an inquiry system that adjudication is based on the civil law
standard where the worker has the burden of proof. It was her who
convinced Justice Yamauchi into disagreeing with Justice Millar who had
in an earlier Judicial Review determined correctly that the burden of
proof was on the Board. Quite frankly, the whole Appeals Commission
should be fired and appoint some one who knows what they are doing.

Nov 042018
 

By Gerald

There is no denying that the burden of proof in the workers compensation
system is entirely on the “Board” but our Justice Minister like her
predecessors does not want to admit that the adjudication by Case
Managers, DRDRB and the Appeals Commission have been and continuing to
use the wrong legal standard by using civil law or tort law in
adjudicating claims. This was the decision of Justice Bruce Millar who
determined that workers compensation systems in Canada are by law
required to adjudicate claims based on an Inquiry model, not an
Adversarial model which is the the standard used in civil law. Justice
Millar’s decision should have sent a message to WCB and the Appeals
Commission, and set a precedent resulting in all long standing claims
being reheard.

In Justice Millar’s decision, he directed that the Appeals Commission
contact the employer to obtain facts that WCB had failed to investigate
and had led to having to file a Judicial Review. The Appeals Commission
refused to comply and denied the claim for the second time, forcing us
to file for another Judicial Review which was heard by Justice Yamauchi.
Justice Yamauchi should  have upheld the decision of Justice Millar
based on the legal principles of res judicata and issue estoppel as
another Judge cannot by law hear the same case. Questionably is why
Justice Yamauchi did not do what is required in cases that have been
determined already. Notably is that Justice Yamauchi was one of the
Judges who were under review and found by the Alberta Appeals Court to
be lacking in judgement in a sexual assault case, thereby questioning
his decision that led to us  losing a case that we had already won.
Click on the following link:
https://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959.

Oddly enough is that Justice Millar’s decision was not posted on Canlli
with the most logical reason that his decision would have been a damning
condemnation of the appeals process. I suspect that WCB and the Appeals
Commission requested through the Justice Minister’s office that Justice
Millar’s decision not be posted on Canlii. I have the transcripts of the
action we filed and Justice Millar’s decision that went against the
Appeals Commission and WCB. What other reason would there be for not
posting on Canlii.

The corruption surrounding WCB and the Appeals Commission is aided and
abetted by the Alberta Government through not allowing the public to
read decisions that are extremely important to cover up the abuse of
power in a public office.

For clarification as to who has the burden of proof in workers
compensation systems in Canada,I am enclosing Dr. Terence Ison’s
explanation. Dr Ison before his death was a law professor who
specialized in workers compensation law and was recognized as being
Canada’s leading expert in workers compensation.  Click on the following
link and go to page 814 for clarification.

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1620&context=ohljbut
.

Nov 032018
 

By Gerald

My last post specific to burden of proof has gained a lot of interest
and requires further explanation. Even in civil cases, a plaintiff does
not always bear the burden of proof. It depends on who you are suing. If
you sue a member of the general public who is not considered to be
knowledgeable, you have the burden of proof. If you sue a person who has
more knowledge than you, the burden of proof shifts from you to the
knowledgeable person. This was determined by the SCC in a case cited as
Snell v Farrel.  When filing a claim with WCB, they are the
knowledgeable party and by law, they have the burden of proof even if
civil standards are used in adjudication. At no time does a worker of
employer have any burden of proof, it is always on the supposedly
neutral party and that means that the burden of proof is on WCB, DRDRB
and the Appeals Commission. Before becoming an Appeals Commissioner, I
would think that all AC should have to pass the basic criteria of
administrative law that is specific to the workers compensation system
and the Meredith Principles. I suspect that all Appeals Commissioners
are not selected for their expertise in law, medicine and common sense
but for their political associations as most or all of them are dumber
than a door nail.

Most workers do not know that they can request an in person hearing at
the Case Managers level. Case Managers have the same powers as the Court
of Queens Bench and a worker has the right to request a notice to attend
and have the Case Manager subpoena a doctor or doctors who are involved
in a piss fight on conflicting medical opinions. You do not by law need
to wait to subpoena witnesses at the Appeals Commission level. In many
cases workers spend a piss pot full of money to pay lawyers and
advocates to represent who pass themselves off as experts when they know
diddly squat about the system. I am seriously considering even at my age
representing workers on a strictly contingency basis with no retainer
and no costs to the worker which I have been requested to do by workers
and for that matter also employers who are paying into a system that is
totally corrupt as evidenced by employers paying life time pensions to
workers who did not have any loss of earnings which can be easily proven.

Sep 062012
 
Workers compensation board to repay nearly $4 million

 

Kevin Bissett The Canadian Press
Posted: Sep 5, 2012 7:35 PM AT
Last Updated: Sep 5, 2012 7:53 PM AT

 

New Brunswick’s workers’ compensation board is repaying close to $4 million to 901 people as a result of a court ruling earlier this year that concluded it was wrong to claw back injury benefit payments from Canada Pension Plan recipients.

The claims, which date back over 20 years, were identified following a provincial Court of Appeal decision in April, a spokeswoman for WorkSafeNB said Wednesday.

Mary Tucker said the Crown agency believed its policy of clawing back workers’ compensation payments from people receiving the Canada Pension Plan was in line with the Workers’ Compensation Act.

“The implications of the Court of Appeal decision have been assessed and case management staff are actively working to implement the directions given by the court and provide redress to those affected,” Tucker said in an email.

“Many have already received payments and others are in process.”

An appeals tribunal repeatedly rejected WorkSafeNB’s interpretation of the Act and overturned its decisions in individual cases. The Court of Appeal backed the tribunal’s position, saying in its April 5 ruling that it “has been right all along.”

Tucker declined to explain why WorkSafeNB followed the tribunal’s decisions in individual cases but didn’t change its overall policy of clawing back workers’ compensation payments. She said WorkSafeNB would not comment further.

Amon Ross said he had to leave his job as a carpenter in 1999 after falling from a ladder. He received disability payments as a result from 2000 to 2005, but that was partially clawed back.

Ross, 72, said he was repaid that money from WorkSafeNB in June. But he added that the claw backs left him in financial distress.

“I had to withdraw all of my RRSPs, trying to make a pension out of it,” he said from his home in Tabusintac in northern New Brunswick. “I had to put it into a (Retirement Income Fund) so I can get a little bit more pension to get on with my life in 2000.”

Ross said he believes he is due interest.

“If I would have had that money in 2000 I would have earned interest on it.”

WorkSafeNB’s repayments come following the case of Wayne Douthwright, who was injured on Oct. 18, 2002, while working at a sawmill in Sussex, N.B.

Douthwright’s claim for workers’ compensation was accepted and he eventually became entitled to long-term disability benefits, which he began receiving in August 2009. Those monthly payments were $766.

After turning 60, he chose to collect Canada Pension Plan retirement benefits at a diminished rate. Those benefits totaled $547.07 per month, which he started receiving in September 2009.

In June 2010, the Workplace Health, Safety and Compensation Commission — now known as WorkSafeNB — told him his long-term disability benefits would be reduced by the amount of his retirement benefits and that he would have to reimburse the commission for overpayments.

Douthwright appealed that decision to the appeal tribunal, which sided with him. His employer, JD Irving Ltd., appealed that ruling to the Court of Appeal, but lost.

 

———————————————————————————————————-

 

WCB Alberta were also clawing back CPP benefits but stopped claw backs for workers injured after June 1, 1996. Unfortunately for workers injured prior to June 1, 1996, they continued to claw back workers CPP benefits which are and have been found to be illegal in other precedence setting legal cases. It would appear to me that the Alberta WCB will have to pay workers back their CPP benefits prior to June 1, 1995 and going back to 1966 when CPP was first introduced in Canada, unless the Alberta courts determine that WCB can claw back CPP benefits which I suppose is possible. It would appear to me that the New Brunswick Appeals Tribunal have a far better understanding of case law than the shit for brains Appeals Commission we have in Alberta who never do question the WCA, Regulations or WCB Policy. Of course when we elect shit for brains politicians who select these dumb bastards, workers get people determining claims who haven’t got a clue what they are doing.

 

This is the wonderful system that workers and employers have been forced into by provincial governments that could give a shit less for workers.

 

Gerry Miller