Jun 212018

By Gerald

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.

Dec 192017

By Gerald

Click on the following links; https://www.thestar.com/news/gta/2017/12/15/wsib-to-abolish-policy-that-slashed-benefits-for-thousands.html

Little doubt that this is going to cost the Ontario WSIB billions of dollars to rehear long standing claims and then provide compensation to the thousands of workers whose claims and benefits were illegally denied. The ripple effect of this also will affect workers in Alberta and as well as other provincial governments whose claims and benefits were denied based on pre-existing conditions. Of note is that the issue is specific to the NEL (non economic loss) in Ontario and a NELP (non economic loss payment) in Alberta which is a separate discretionary award based on impairment ratings.

While the problem and subsequent blame involving apportionment is being blamed on Dr. Chris Brigham who is a friend of mine (Dr. Brigham was the Senior Editing Chair of the AMA Guides 6th Edition) who was basically doing what the “Guides” direct. Apportionment is used when there is a pre-existing condition and a compensable condition when the pre-existing condition is subtracted from the compensable condition to reach a whole person impairment. Being that workers compensation is based on a medicolegal scenario, by law using the thin skull rule, workers should not have their impairments apportioned as opposed to in the field of medicine, there must be apportionment.

The former Conservative Government after the review by Doerkson and Friedman reports enacted Section 157 .1 of the WCA to hear long standing claims which due to lobbying by the Alberta Chamber of Commerce suggesting that the decisions made by the long standing Review Panels would not change appreciably which I beg to differ. If all long standing claims were reheard by competent Review Panel members such as I, over 90% of the claims and benefits that were denied would be overturned. According to the Alberta Chamber of Commerce, the cost to review long outstanding claims would be approximately 4 million dollars which I also disagree with. The cost would most likely result in hundreds of millions dollars or billions of dollars going to workers who have been cheated from receiving benefits by WCB and the Appeals Commission and the latest news from Ontario would certain support my estimate of the cost. Unfortunately in Alberta we have no lawyers, worker advocates who are experts in worker compensation law and medicine so we have to wait for lawyers in other provinces to establish precedence.Lawyers and worker advocates in Alberta take advantage of desperate workers who use much needed money for food, lodging and care of workers children and make these workers believe that they are experts in law and medicine, take their money and then leave the worker and their families destitute. The blame for all of this is the provincial governments who aid and abet criminal fraud against the most vulnerable people, workers who put their lives on the line every day of the year trying to earn an honest dollar. These are the real heroes in our society, not just first responders who get all of the limelight.


Dec 192017

By Gerald

This is an article that is a good indicator of why the system does not work as it was intended to work.  In an Inquiry-based system it is the “Board” who must gather the evidence, not workers, families of workers, relatives of workers, friends of workers etc. This is the sole domain of all workers compensation systems and they are given the exclusive powers by legislation. Questionably is why  these workers did not have their claims accepted from the beginning especially when based on a balance of probabilities, it was the work environment that contributed to their cancers which clearly is not rocket science.

Click on the following link; https://www.thestar.com/news/gta/2017/12/17/wsib-reverses-majority-of-denied-ge-peterborough-cancer-claims.html