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
.

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.