Feb 242019
 

By Gerry

The State of Nevada has finally got it right in the wacky world of workers compensation by enacting legislation to put the burden of proof on an employer to prove that a work injury is not compensable. Despite the fact that in the U.S. claims are determined based on an adversarial system as opposed to Canada which is supposed to be based on an inquiry system the burden of proof is placed on workers and not on the “Board” which is and always has been illegal and contrary to the Meredith Principles. In Canada, the the whole idea of establishing workers compensation systems was to place the burden of proof on the “Board” both for and against meaning that if causation cannot be established, then the burden of proof is on the “Board” to prove that the injury or disease arose outside the work environment. Had this been been placed in legislation by the Government a hundred years ago who are responsible for the never ending shit show, there never would have been presumptive status provided to firefighters and first responders which is discrimination based on employment. Obviously, the State of Nevada by enacting legislation of this nature do not have to enact legislation providing presumptive status to firefighters or first responders as this bill would include all workers not simply the privileged few. Questionably also is why do we as voters vote in morons to run the province and questions why we vote in the first place when the people running for office are of limited intelligence and then these people select boards, appeals commissioners and other administrative bodies who possess limited intelligence. This is not meant as a criticism of the NDP, it is criticism of all parties and more critical of the Conservative party who run this shit show for years before the NDP took over and at least made a feeble attempt to fix a badly broken system. People would be better off to vote for cockroaches to run the province. 

When I filed a complaint specific to the legislation giving fire fighters and first responders special treatment, I was told by AHRC, employment is not a protected category, therefore it is perfectly legal to discriminate against all other workers on the basis of employment. They explained that in the preamble of the AHR Act, it does indicate that all persons are equal in dignity, rights and responsibilities but in effect if a person is not included in the protected categories, then a person is excluded from being treated equally. This essentially means that all persons are not equal and can be discriminated against despite what is presented in the preamble. What type of morons would enact legislation that protects some people from discrimination and excludes other persons from being treated equally. Why not simply enact legislation creating equality for every one without specifying who must be treated equally and then adding more areas of protection such as age and genetic discrimination, sexual orientation, gender identity, gender expression. Why not enact a simple law making it illegal to discriminate against any one rather than adding more protected categories and leaving out other categories.  

As shown in Nevada, Governments can enact any legislation they choose and if the NDP were sincere in their concern of placing workers first, they would enact legislation that would ensue that workers would not be exposed to the uncertainties of receiving necessary medical care, loss of earnings, vocational rehabilitation. For example: In determining causation Section 24 (4) of the WCA could be changed from“If the personal injury or death of a worker arose out of employment, unless the contrary is shown, it is presumed that it occurred during the course of employment, and if the personal injury or death of a worker occurred during the course of the employment, unless the contrary is shown, it is presumed that it arose out of the employment to “Unless  the contrary can be proven beyond a reasonable doubt, it is presumed that an injury or death of a worker arose out of and occurred during the course of employment” This change in legislation would essentially eliminate any questions as to causation rather than at present where doctors provide medical opinions within a vacuum to lay persons who don’t know their ass from a hole in the ground and deny the claim based on some wannabe doctor who is never subpoenaed and questioned under cross examination. On to the newspaper article;

Nevada lawmakers are now considering a bill that would put the onus on employers to prove a work injury is not compensable, instead of existing law that put the responsibility at the hands of an injured party who has to prove the injury arose within the scope of employment.

A.B. 138, with 22 sponsors and now with the Committee on Commerce and Labor, was introduced Thursday. It flips the current law that “requires that a claim by an injured employee for compensation… be decided on its merit and not according to the principle of common law that requires statutes governing workers compensation to be liberally construed because they are remedial in nature,” according to a legislative counsel’s digest. 

“This bill requires such a claim to be decided under a liberal construction of those statutes in favor of the injured employee or his or her dependents,” the digest states. “Existing law provides that an injured employee or his or her dependents are not entitled to receive compensation under industrial insurance unless the employee or dependents establish by a preponderance of the evidence that the injury arose out of and in the course of employment.”

This bill states that “the injured employee or dependents are entitled to receive such compensation unless the employer establishes by clear and convincing evidence that the injury did not arise out of and in the course of employment.”

The bill also states that an employee’s injury shall be deemed to have arisen out of and in the course of employment unless there is “clear and convincing evidence to the contrary or except  under circumstances where certain statutory provisions establish other standards of proof.”

The bill would also penalize payers who deny claims that ultimately prevail after a requested hearing. 

May 092018
 

By Gerald

Click on the following link: http://www.cbc.ca/news/canada/sick-worker-groundbreaking-case-wsib-benzene-1.4649680

Just as I predicted, sometime in the near future, providing presumptive status for any occupation rather than all occupations is discrimination and would come back and bite the goofs that voted for and passed legislation for firefighters, then extended this presumption to first responders. There is and never has been any evidence that firefighters or first responders have any higher risk than any other occupation when compared to the general public which is how epidemiological evidence is gathered and is why the National Academy of Science does not or will not use the general public as a reference in determining causation.

Seems like Ontario always has to lead the way as the people we elect to represent us in Alberta must have fallen off a turnip truck. While I am a born and raised in Alberta resident, my question to the Government is why is it that Alberta is not leading the way in workers compensation issues rather than being the follower even going so far as to adopt the Meredith Principles which initiated in Ontario. Perhaps, the Alberta Government would simply rescind all legislation providing differential treatment to one group of workers and bring in legislation providing presumptive status in all claims for all workers and force WCB to prove contrary which is the way that it was intended to be right from the beginning according to Dr. Terrance Ison who before his death was Canada’s leading expert in workers compensation issues.

Dec 032017
 

Click on the following link: http://www.nydailynews.com/new-york/feds-deny-ex-osha-inspector-9-11-illness-workers-comp-article-1.3672946

While it is obvious that not only Alberta is there major problems with all workers compensation boards, there seems to be a convoluted approach to how one body adjudicates claims and how another body adjudicates claims. In Alberta, a worker who has an obvious work related injury and is determined to be disabled, the same worker under federal jurisdiction is considered to be totally disabled and receives a disability pension. The same worker that is totally disabled, receiving CPP disability pension also applies for AISH and is also determined to also be totally disabled, yet this same worker in the workers compensation system is determined to be capable of “imaginary” gainful work making “imaginary” earnings. 

It should not surprise any one that the majority of workers compensation benefits are paid by tax payers as most if not all workers will apply for CPP disability benefits, AISH or SFI and and receive these benefits. To suggest that employers fund the accident fund 100% is a lie as approximately 80% of the money paid for disabled workers come from the worker, their families and other tax payers. This was a study performed in the U.S. by two independent bodies when the study was performed using Social Security in the comparative studies when it was determined that the majority of individuals receiving Social Security benefits were disabled workers who either had their claims denied or their benefits denied. 

To suggest that we are different in Alberta is grossly illogical as the long standing claims that I am representing (43 years and 29 years) resulted in WCB accepting the claims but refusing to pay benefits. The worker in question has been receiving CPP disability benefits and AISH since 1992 for work related injuries. Another long standing claim (27 years) that was accepted with no benefits resulted in the worker applying for CPP disability benefits and had been receiving CPP disability benefits from 2000 to when she reached 65. It is evident that both AISH and CPP are subsidizing the Alberta WCB through tax payer funded systems which is not what the public and workers should be doing. The Alberta Government know that this is true, refuse to investigate how many disabled workers are on AISH and SFI, and continue to protect the sacred cow. The Federal Government also know that the majority of individuals on CPP  disability are disabled workers but according to Services Canada, this is a provincial matter which is a crock of shit because the Federal Government are forcing all Canadians to subsidize workers compensation systems throughout all of Canada when they know that WCB is supposed to be the first payer and that if a disabled worker applies for CPP and receives a disability pension, Services Canada has the legal right to claw back disability benefits from WCB. WCB has no legal right to claw back CPP benefits to offset disabled workers WCB benefits.

Mar 132017
 

By Gerald

Seems that the Australian Government are also having to perform a review of a corrupt and dysfunctional system which most if not all workers compensation systems are. The buck has to stop somewhere when a public body has been determined to have a culture of denial and is considered to be dysfunctional. The buck stops at the Ministers in charge of the WCB and the Appeals Commission who are or have  been turning a blind eye to the abuse of workers and simply ignoring the recommendations of selected bodies such as Justice Friedman and a former MLA Doerkson. What is the point of having reviews of the system and then not doing anything to fix a broken system. Oddly enough the Alberta Education Minister can fire all the members of a school board but the Ministers in charge of WCB and the Appeals Commission cannot or will not fire the dysfunctional members of the WCB and the Appeals Commission when independent reviews of the whole system has proven beyond a reasonable doubt that all the problems of the workers compensation system is because of dysfunctional people making decisions that they are not qualified to make. Time to fire the whole bunch of arrogant, pompous ignorant bunch of misfits that have to be selected on the basis of political patronage and not on their qualifications.  It is obvious that reviews must be held at least every two years to ensure that once and if the system is fixed, that it will continue to run for the benefit of workers and not for the benefit of employers. Premiums can be reduced by ensuring that employers stop injuring and killing workers to increase their profits and if that takes filing criminal charges against employers and incarcerating them, then so be it. The safer the work place, the lower the premiums.

An indication of just how dysfunctional the Alberta workers compensation system is can be found by reviewing claims specific to psychiatric or psychological disabilities which I am presently reviewing which are absolutely dumbfounding as to the stupidity of WCB, DRDRB and the Appeals Commission. I say stupid because any one who denies a psychological injury based on the report of a WCB contracted Psychiatrist who determined that the diagnosis of major depressive disorder was not work related and not compensable because the psychological injury was caused by WCB has to be pathetically stupid. When anyone causes bodily harm to another person they are guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years (Section 221 of the Criminal Code) Any first year law student would have advised WCB, DRDRB and the Appeals Commission to destroy the report and not use it to deny a claim. Oddly, two other totally independent Psychiatrists after reviewing the workers files determined that the diagnosis of MDD was caused by an emotional reaction to a work related physical disability which is compensable (Refer to WCB Policy 03-01 Application 6) which is one of the conditions in determining a work related cause. The worker had been diagnosed with failed back surgery syndrome that rendered the worker unable to support himself and his family which was found by the two dissenting Psychiatrists to be not only the major cause but the only cause of his MDD. The diagnosis of MDD was noted to be severe as the worker was diagnosed as being suicidal and homicidal as within the report which I have reviewed, the worker expressed the desire to kill his Case Manager. Obviously, WCB, DRDRB and the Appeals Commission shot themselves in the foot by attempting to cheat the worker from having his claim accepted for MDD and placed themselves in the position of being charged under the criminal code although the chance of this happening when it involves WCB, DRDRB and the Appeals Commission will never happen as the Alberta Government will not and does not prosecute WCB, DRDRB or the Appeals Commission for any criminal actions even though on another claim I requested that the Calgary City Commercial Crime Section investigate and after investigation they recommended that criminal charges be filed. The Crown refused to file charges as it is obvious that the Justice Minister at the time directed that no charges be filed.

Will the Alberta WCB Review Panel come to the same conclusion as the Australian WCB Review Panel or will they simply sugar coat their findings as I believe they will do. At least Justice Friedman had the balls to determine that the appeals system does not work and there was a culture of denial although over a decade later, the Alberta Government has done nothing to fix a badly broken system. The only people who have made any progress are first responders who have been provided discriminatory presumptive status while other workers struggle to have their claims and benefits accepted. Why should some people be given special status and other workers are treated with contempt and abused by the system. What makes first responders any more eligible for benefits than any other or other workers. First responders can like any other worker quit their job if the risks outweigh the benefits. There is no reason why all workers should not be provided presumptive status in all circumstances and then let the “Board” prove their case which is the way it was supposed to be done under an Inquiry system. I believe in total equality with no exceptions regardless of any ones occupation.

It is evident that the Alberta Human Rights Act is seriously flawed when in the preamble it is stated that “all”  persons are equal in dignity, rights and responsibilities and then contradicts itself by including only those people who fit into the protected category and excludes all other persons who do not fit into the protected category resulting in treating people differently under the law and before the law. This is evident by the number of times the courts have struck down differential treatment of people who have been excluded with the latest being “age” added to the protected category. This is pathetically stupid legislation that by inclusion, it results in exclusion and having to go to court to have people that are not in the protected category added. Section 15 of the Charter does in fact provide equality to all persons without specifying any protected category but does take note of “in particular” the mentioned protected groups without excluding every one else that does not by exclusion fit into with the people who are fortunate to be included in the protected group under Alberta legislation.

Prior to the historic agreement, workers had the burden of proof to prove negligence and after the historic agreement, in Canada the structure of all workers compensation boards were supposed to be under the control of Provincial Governments. Workers no longer would have the burden of proof as legislation placed the burden of proof on the “Board” who had the resources and exclusive jurisdiction to gather the facts. Somehow this dysfunctional system has changed to an Adversarial system where the burden of proof has reverted back to workers who do not have the resources to fight the workers compensation board along with the Appeals Commission who now represents employers as has been witnessed in the courts where both WCB and the Appeals Legal Counsel are fighting against a worker. Worse yet through legislation, if a court happens to overturn the decision of the Appeals Commission, the court has to by legislation send the claim back to the body who denied the claim and the Appeals commission has the power and right to overturn the decision of the court. Is this not a contravention of the Rules of Natural Justice when the same body who has made a ruling and then is tasked by the courts to rehear their initial decision and then make the same ruling that the court overturned.

In a democratic society we elect people to protect the more vulnerable in our society, yet the Government enact laws to protect the people who wreak harm on the people who are supposed to receive care for work related accidents. Rather than care for workers who have had their lives destroyed by a workplace accident they are forced to fight for benefits who by law are entitled to benefits. The whole system is based on protecting the employer by deliberately denying claims and benefits and then hoping that due to the unavailability of legal assistance, financial ability, that workers will give up and apply for tax payer funded programs such as Social Services and CPP disability benefits.

This dysfunctional system was encouraged and promoted by the former Conservative Government and can be changed from a dysfunctional system to a good system by the NDP Government who could through meaningful change leave a legacy that makes Albertan’s proud of the province we live in and proud of the Government that was elected to fix the problems created by the former Conservative Government.

Click on the following link:  http://www.smh.com.au/business/workplace-relations/review-finds-workers-compensation-complaint-handling-dysfunctional-20170308-gutqn4.html

Mar 132017
 

Many of you will by now have read the very important decision of the Ontario Court of Appeal on the class action brought against WSIB by Richard Fink. It can be found here:

https://www.canlii.org/en/on/onca/doc/2017/2017onca121/2017onca121.html?autocompleteStr=castrillo&autocompletePos=1

I know that for some of us worker representatives working in the trenches, higher court decisions will seem of limited relevance. But this is not really the case. In truth, wherever we work in the justice system, ultimately we rely on the rule of law in Canada and Ontario. If that slips away on us, we will be in the situation where the arbitrary exercise of power will be much more difficult to challenge. So it’s important to read Castrillo; and now you can add to your reading list the beautiful and timely blog on the decision by Ron Ellis. It will help you understand the twists and turns of the Court of Appeal’s reasoning and the overall importance of the decision. We are fortunate to have the benefit in our area of law of Ron’s careful, reasoned and powerful mind going to work on this important decision, which has emerged at such a critical time for our workers’ compensation system.

Here is the link to Ron’s post. I’ve also pasted in the text at the end of this e-mail. However, I would urge you to go to Ron’s website, where you will find lots of high quality analysis not just in workers’ compensation but broadly in administrative law. Workers’ compensation is not alone in facing challenges to the rule of law.

https://administrativejusticereform.ca/wsib-and-the-ontario-court-of-appeal-decision-in-the-castrillo-class-action/

Thank you Richard for bringing this case forward and Ron for your important work elucidating it for us.

Jan 142017
 

By Gerald

In the U.S. they have opened up a Pandora’s box by providing presumptive status to firefighters. The reason presumptive status is provided in the U.S. is because their workers compensation system operates under an Adversarial system that involves private insurers as opposed to Canada that operates or supposed to operate under an Inquiry system and presumptive status is not required as the burden of proof is not on workers but on the “Board” At least that is how it is supposed to work in Canada but somehow or other the system in Canada has become an Adversarial system. I do believe that any cancer diagnosed for fire fighters is in fact based on the balances of probabilities caused by the work environment. Click on the following link;http://ktar.com/story/1419634/arizona-firefighters-want-10-more-types-of-cancer-added-to-workers-comp-coverage/