Mar 042018
 

By Gerald

Yesterday I sent out an e-mail specific to the Appeals Commission denying requests to subpoena doctors and payment of conduct money. Interesting enough the Court of Queens Bench determined that the Appeals Commission cannot simply deny the request and especially when there is a difference of medical opinion and cross examination is required https://www.canlii.org/en/ab/abqb/doc/2010/2010abqb393/2010abqb393.html?searchUrlHash=AAAAAQAHam9obnNvbgAAAAAB&resultIndex=8

The Appeals Commission appealed the decision of the Court of Queens Bench to the Alberta Court of Appeals who upheld the decision of the Court of Queens Bench https://www.canlii.org/en/ab/abca/doc/2011/2011abca345/2011abca345.html?searchUrlHash=AAAAAQAHam9obnNvbgAAAAAB&resultIndex=24

Question is what makes these pathetic people believe that they can make their own rules that contradict and disregard decisions of Alberta’s highest court. One of the reasons why subpoenaing of doctors is necessary is that the system runs entirely on documentary evidence which for the most part is based on false and misleading medical opinions which are then reviewed by lay people with no expertise in medicine. Without any expertise in medicine and without cross examination how then can any Adjudicator determine which doctor or doctors are correct. This is impossible. Whether it is civil law or criminal law, without cross examination, the whole system would fail if documentary evidence was the only method used.

The next question if in fact the Appeals commission does subpoena doctors, who pays their conduct money. The conduct money must be paid out of the accident fund to ensure that all workers are given a fair hearing. The Alberta Rules of Court do not apply as I have explained before as an in person hearing is not a trial, it is a hearing as the rules of civil procedure do not apply in administrative law.

According to the WCA, WCB provides insurance but do not fall under the Insurance Act which means that WCB is the only unregulated business in the province of Alberta who can do as they want as without regulation they have absolute power to do whatever they want. Unfortunately, the Minster in charge of the system is not in charge of anything but collects her extra pay because she is a Minister who is in charge of nothing.

Despite the decision of the SCC in the Martin case, the Alberta WCB still remains one of the few provinces that do not recognize chronic pain. The Government has not enacted regulations to provide PCI ratings for chronic pain, thus denying workers from benefits that are based on chronic pain.

A class action lawsuit in Ontario against WSIB based on misfeasance in public office was settled out of court. The specifics of the class action based on misfeasance in public office was that WSIB were subtracting PCI ratings assessed on pre-existing conditions from a whole person PCI rating resulting in a reduced PCI rating. This is referred to as apportioning. This involved ignoring the thin skull rule of law which means that worker is taken or hired as the employer finds them. The Alberta WCB uses Policy 03-02 Part II Application 1 Question 5 to illegally apportion PCI ratings to reduce a PCI rating resulting in reduced pensions and benefits. Surely, they cannot say this is an honest mistake as any fool knows that the thin skull rule applies in law.

Question is why would the NDP government select and pay three people ( WCB Review Panel)to investigate and make recommendations when they were not qualified. The CIWAA along with long term claim workers would have done this for nothing and in a matter of a few weeks that would have resulted in meaningful changes to the WCA, WCB Policies and WC Regulations.

When I was an Advisor to Justice Friedman, one of my recommendations was to make Appeals Commission decisions totally transparent. My reasoning was that I could track doctors, Case Managers, DRDRB on Canlii simply by inputting their names in the document box and every claim involving these people would come up which is a very valuable tool to determine which doctors were providing contrary medical evidence.which DRDRB members were biased, which Case managers were biased. Questionably if in fact that because of FOIP, as I was told they  could not do this. That being the case then why is it allowed in the courts when researching Canlii, the courts name the worker, the doctors which allows me to check out the doctors as to their medical opinions.I also can if the name of the worker was placed on Canlii, I could contact them if in fact I felt that the Appeals Commission had made an error in law, error on fact, error in jurisdiction etc and explain to a worker how to appeal, request a reconsideration or file for a Judicial Review/Appeal. Being that the names of the Appeals Commissioners can be found on Canlii, I can determine which Appeals Commissioners are biased, are clueless and which are not. The system cannot continue to operate in a vacuum and must meet the public’s expectation of a totally transparent system with nothing to hide.

For example: I can look up Dr. Addington (Psychiatrist) to determine his dossier. Dr. Addington was hired by WCB to conduct a psychiatric evaluation of a worker I represented. From his report specific to the worker I represented and comparing his track record in the courts, I can conclude that he is a good honest doctor. Another doctor who a person can look up is Dr. Louw whose name comes up in Canlii which may interest some people. In fact a case cited as Louw v. Hamelin-Chandler found on Canlii is very interesting. Dr. Louw was a doctor who provided a false and misleading IME on a worker that was contradicted by other doctors. Another doctor that may be of interest is Dr. Darlington who if you enter his name in the document text will provide information. Dr. Plageman can also be found who was one of the defendants who was involved in a lawsuit by the Munros.

While the NDP Government continue to ignore the requests of workers who have long standing claims that have never been resolved even though the evidence suggests that the decisions made by Adjudicators was incorrect, resulting in claims and benefits being illegally denied and some workers committing suicide, having psychiatric problems causing marital and family breakups, tossed onto the garbage pile where they spend the rest of their life. I do not blame the NDP Government as they inherited the problems the former Conservative Government created. To show Albertan’s that the NDP have a conscience, they should honor the Conservative Governments promise to open up long standing claims by complying with Section 157.1 of the WCA regardless of the costs to rehear claims.

Jan 102018
 

By Gerald

Click on the following link: https://www.wcb.ab.ca/assets/pdfs/public/policy/Interim_Relief.pdf

Contrary to what WCB suggests as a new policy, interim relief has been directed by the Courts (Patrus) and the Appeals Commission. WCB through legislation also has discretion to provide interim relief while a medical investigation is being conducted. Section 38 (4) of the WCA and have never done so. To leave interim relief up to a Case Manager who is not an expert on law, policies or medicine would be a disaster. What would a Case Manager know about whether a claim had a reasonable chance of success?

What would be the point of going through the appeals process, not be provided interim relief and then having the Appeals Commission or the Courts overturn the decision of the Case Manager which could take at least three or more years and in the meantime during the appeals process a worker is left destitute. In my humble opinion, interim relief has to be made mandatory beginning from the time a claim is filed to the time  worker has went through the appeals process. It is far better to error on the side of a worker than it is to deny interim relief and then have the decision of the Case Manager overturned by the Appeals Commission or the Courts.

Jan 092018
 

By Gerald

Click on the following link: https://globenewswire.com/news-release/2018/01/08/1284967/0/en/WSIB-is-using-the-minimum-wage-to-cut-injured-worker-benefits-Government-must-step-in-to-prevent-disaster.html

Questionable is whether Bill 30 will address this. At present it is the Government who enacted the WCA (Section 63 of the WCA) that allowed WCB to provide an imaginary job with imaginary earnings. The blame cannot be placed on the WCB as they are simply doing what the Government has allowed them to do. Any one who is familiar with the WCA will find that workers are blaming the wrong people as WCB simply follows the WCA based on their interpretation of the “Act” which in many cases is the incorrect interpretation of the “Act” . Even when WCB or the Appeals Commission know that the interpretation of the “Act” is incorrect, they will continue to use their interpretation until the Court on a question of law, makes a correction. For example: WCB knows that the burden of proof is on the “Board” yet force workers to prove their claim. WCB knows that chronic pain is not provided a PCI rating but do not provide a PCI rating for chronic pain in itself. WCB knows that an impairment rating does not equate to a disability rating, yet they continue to use impairment ratings as a direct method of rating an earning loss. unless a worker has the ability and knowledge to represent themselves in court or has the financial ability to hire an experienced lawyer to represent them, WCB and the Appeals Commission will continue to contravene the law.

Feb 032017
 

By Gerald

What is the point of having the Office of the Appeals Advisor represent a worker through out the appeals process and if there is an error in law, jurisdiction or mixed fact and law, a worker is forced to pay a lawyer a retainer, costs and disbursements to represent the worker on judicial review that can result in tens of thousands of dollars in costs to a worker who does not have the financial ability to ensure that justice is done or seen to be done. Either separate the Office of the Appeals Advisor from WCB Legal Services or change the legislation specific to the Legal Procedures Act that would allow a representative of a worker to represent the worker before the courts.

Another major problem exists when the Appeals Commission is by legislation given more power than the courts. When a  superior court directs that the Appeals Commission reconsider their decision, the Appeals Commission can refuse to reconsider their decision and are allowed by legislation to give the finger to the court. A worker then has to go back to the court to have the direction of the court upheld. This brings total disrespect to the whole system when a the Appeals Commission can by legislation disrespect an order of the court and refuse to comply with the decision of a court. Further to this under the Rules of Natural Justice a body cannot try their own case and when a superior court makes a ruling, the Appeals Commission should have to appeal the decision to the Alberta Court of Appeals like every one else has to do.