Jan 142017
 

By Gerald

After reviewing 103 New Brunswick WCAT decisions specific to causation it is obvious there is a problem in a number of provinces including Alberta with interpretation of the presumptive legislation that is legislated by all provinces. It seems that there is no common ground on how to determine causation based on the presumptive legislation of each province. Is causation based on medical certainty, medical opinion, but for and material contribution test, or common sense and logic as has been determined recently by the SCC in the Fraser Health Authority decision involving breast cancer in the nurses diagnosed with breast cancer. Is workers compensation based on the strict rules of civil law or is it based on a lesser standard such as has been determined by the SCC. Is workers compensation based on an Inquiry system or is it based on an Adversarial system. According to the Alberta WCB presumption only occurs when epidemiological evidence results in workers having double the risk as those in the general population meaning that the Alberta WCB and the Appeals Commission are of the opinion that all claims involving causation must be based on medical certainty or a higher standard than probability or common sense and logic. After one hundred years, this convolutive and corrupt system has been allowed to continue without any direction as to what the purpose of workers compensation really is, is workers compensation supposed to be there for workers without having to fight to have a claim accepted or is it there for the economic and protection from civil action for employers.  

WCB systems and the courts across Canada are not interpreting the legislation the same way. Who is right and who is wrong is a mystery. The Alberta WCB interpretation of the presumptive clause is that if one of the conditions (arises out of employment) is present) then the other condition (in the course of employment) is presumed or vice versa that if the time and place is present, then it is presumed that there is risk factors (arose out of employment). That obviously is the incorrect interpretation as is evident that the legislation is presented as a two part scenario. I shall explain.

The first part is specific to (arose out of employment) which considers risk factors. If there is risk factors in the work environment unless the contrary can be proven or shown, the claim should be accepted as time and place are irrelevant unless the accident is a sudden occurrence. Common sense and logic would indicate that when a worker is exposed to these risk factors on a daily basis, that there need not be any correlation to time and place. Time and place means absolutely nothing and especially so when adjudicating claims that involve progressive injuries or diseases.

Determining risk factors is problematic. Are risk factors determined in workers compensation systems based on medical certainty, medical opinion or based on common sense and logic? Are risk factors in workers compensation determined on the strict rules of civil law, the but for and material contribution test or on a lesser standard, common sense and logic as has been determined by the SCC? Are workers supposed to be given the greatest of latitude as has been determined by the courts or no latitude at all? If causation is based on medical certainty or medical opinion, presumption does not enter the picture as there obviously would be no way to prove contrary. If causation was determined on a de-minimus standard, then presumption would enter the picture and a contrary cause would would have to be presented to rebut the presumption. A negative opinion is illegal without specifying where outside of the work environment, the accident occurred and identifying the risk factors. If a cause is unknown, the claim has to remain in the neutral state and the benefit of doubt has to go to the worker, not remaining in a neutral state and the claim going into limbo  until medical science gets around to performing studies which in numerous cases may be never. For example: Preisers and Kienbocks disease were first noted in 1910 by Dr. Preiser and Dr. Kienbock and both have been causally associated with the work environment, yet workers diagnosed with these conditions have their claims denied. Why? 

A good example of not interpreting the presumptive clause correctly involves firefighters. There was no need to enact legislation that discriminates against other occupations. Using common sense and logic, fire fighters are exposed to hazardous toxins on a regular basis, which when based on common sense and logic, would result in risk factors. Time and place is totally irrelevant. It is grossly illogical for any one to suggest that a fire fighter has to provide the precise time and place that he/she was exposed to toxins, thus supporting my argument that time and place is in most cases totally irrelevant. The length of time a fire fighter (years of exposure) has been determined by the courts in the U.S. as a condition of causation has been found to be discriminatory as the court determined and correctly so that whether a fire fighter is exposed to toxins for one year or less does not reduce the risk of cancer compared to a fire fighter who has been exposed to 10 or 15 years.  Although I do not always agree with the courts, I do agree with the courts in their decision specific to length of time that a fire fighter has to be exposed to toxins. This was my argument to the sponsor of the bill (Richard Magnus) giving discriminatory presumptive status to fire fighters when legislation already was in place to provide all workers with presumption but was being interpreted incorrectly. Length of time has got nothing to do with PTSD as any person can be diagnosed with PTSD when they witness one and only one horrific incident. To suggest that there be numerous exposures to incidents to be diagnosed with PTSD is grossly illogical. Furthermore what affects one person has no affect on another person. This same concept applies to chronic pain. Some people have a much higher pain tolerance than other people. Genetically we are all different and respond in different ways. 

In a Appeals Commission decision I was reviewing, I was dumbfounded by WCB Legal Counsel response to a question when he/she responded that because they were not part of the “action” there was no burden of proof on the “Board”. This response obviously explains that WCB are of the opinion that the system is a civil action brought by a worker against an employer and not simply a victim filing a claim for compensation. The Alberta Rules of Court have been used and continue to be used as guidance to the Appeals Commission. The Alberta Rules of Court are civil rules of procedure that apply to civil law and do not apply to workers compensation. Why are civil rules of [procedure being used in adjudicating workers compensation claims? Why does WCB state that claims are never closed and a reconsideration is granted on new evidence or administrative errors. The Appeals Commission contradict this by providing in their rules of procedure that a worker has 6 months to request a reconsideration based o new evidence. New evidence may take decades to provide so there should not be a statute of limitations at all.

A good example of the morons we elect is our human rights legislation where in the preamble, it states that all persons are equal and then provides legislation that contradicts the preamble by specifying in the protected group who must be treated equally and then forced to continually keep adding to the protected category rather than ensure that all persons are treated equally, not just the people in the protected group.By inclusion, the result is exclusion.

In Alberta presumptive status is based on section 24 (4) of the WCA.

24 (4)  If the personal injury or death of a worker arose out of the employment, unless the contrary is shown, it is presumed that it occurred during the course of the 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.

In New Brunswick presumptive status is based on Section 7(2) of the WCA.

7(2)When the accident arose out of the employment, in the absence of any evidence to the contrary, it shall be presumed that it occurred in the course of the employment, and when the accident occurred in the course of employment, in the absence of any evidence to the contrary, it shall be presumed that it arose out of the employment.

In Saskatchewan presumptive status is based on Section 27 (1) of the WCA.

     27(1) Unless the contrary is proven, if an injury to a worker arises out of the
     worker’s employment, it is presumed that it occurred in the course of his or her
     employment.
     (2) Unless the contrary is proven, if an injury to a worker occurred in the course of
     his or her employment, it is presumed that it arose out of the worker’s employment.

In Manitoba presumptive status is based on Section 4(5) of the WCA.


4(5)        Where
 the accident arises out of the employment, unless the contrary is 
proven, it shall be presumed that it occurred in the course of the 
employment; and, where the accident occurs in the course of the 
employment, unless the contrary is proven, it shall be presumed that it 
arose out of the employment.

In the Yukon presumptive status is based on Section 17 of the WCA.


17 Unless there is evidence to the contrary, an               
injury is presumed to be work-related if it arises out        
of or in the course of a worker’s employment.  

In Nova Scotia presumptive status is based on Section 10 (4) of the WCA

(4)    Where the accident arose out of employment, unless the con-
trary is shown, it shall be presumed that it occurred in the course of employment,
and where the accident occurred in the course of employment, unless the contrary is
shown, it shall be presumed that it arose out of the employment.
Jun 272012
 

Rather than sit idly by and not providing a review of a claim that like thousands of other claims and benefits have been denied based on false medical information due to either malice or incompetence, I will present a claim that because the process that is supposed to provide a fair and unbiased decision resulted in the claimant, Mr. Milne having to proceed with civil litigation rather than to be subjected to abuse of due process, abuse of power and as well an abuse of an individual through the WCB decision making process.

 

The process itself is and should be relatively easy to follow but unfortunately the doctors and decision makers are either biased or incompetent. From the top down, the minister in charge of the WCB, the WCB BoD and the President of the WCB are incompetent and have no idea how the system is supposed to operate. Put all these clowns together and the result is a system that is in chaos.

 

In order to understand the events leading up to the filing of a civil suit by Mr. Milne the following court cases would have to be read in their entirety. All of the cases can be found on The Canlii web page that describes in detail what Mr. Milne was put through and is still going through with no place to turn to other than a continuation of civil suits that had due process been followed he would have never had to go to the courts. I will provide the links to the court cases for those who are interested or those who are contemplating civil action and the pitfalls that may be avoided by learning from Mr. Milne’s experience. I will present the links in chronological order;

 

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2005/2005abqb594/2005abqb594.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2007/2007abqb299/2007abqb299.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2007/2007abqb407/2007abqb407.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2008/2008abqb710/2008abqb710.html

http://www.canlii.org/eliisa/highlight.do?text=milne&language=en&searchTitle=Alberta+-+Court+of+Queen%27s+Bench&path=/en/ab/abqb/doc/2012/2012abqb302/2012abqb302.html

From review of Mr. Milne’s court records and my own personal knowledge of Mr. Milne’s claim, Mr Milne was injured in an accident on Nov. 4, 1995. WCB did accept his claim for an injury to his cervical spine which according to numerous doctors should have not resulted in any permanent injury or disability. Despite the fact that there was no medical diagnosis of why he continued to experience pain, he was sent to attend a pain clinic and work hardening program. Numerous medical tests indicated that there were no abnormalities involving the cervical spine, yet he continued to experience pain. He was discharged from the programs and was accused of malingering and treated with contempt for his continued efforts to find the reason for his pain. Rather than being wrongfully accused of malingering, Mr. Milne went out of Alberta for a medical diagnosis and treatment in Minneapolis where it was determined that he had injuries to the cervical spine facet joints which were treated by radial frequency ablation that resulted in Mr. Milne not having to take any pain medications. It was thus established that the cause of the pain was due to the cervical spine facet joint injuries and attributed to the accident on Nov. 4, 1995.

 

Based on this fact, Mr. Milne should have had the decision of the Appeals Commission to deny his claim, overturned and benefits paid, yet his claim continues to be denied by the Appeals Commission who clearly have a vendetta against Mr. Milne for proving them wrong along with their network of WCB doctors, which also included a MRP who also had been proven wrong. This action by the Appeals Commission by not granting a reconsideration based on new evidence and either directing WCB to pay benefits or by sending Mr. Milne’s claim back to Customer Services brings the administration of justice into disrepute. Noticeably also is the fact that Mr. Milne did request that the Appeals Commission subpoena numerous witnesses who were pertinent to his case and the Appeals Commission illegally refused his request despite the fact that the Alberta Court of Appeals has determined that refusing to subpoena witnesses results in procedural unfairness or a violation of the Rules of Natural Justice. By refusing Mr. Milne to subpoena witnesses, his only recourse was to file a civil claim against the doctors who provided false medical opinions and the WCB.

 

To add insult to injury, the Alberta Government is complicit in enacting legislation (Section 34 (4) of the WCA protecting unethical doctors from providing false medical information by not allowing any medical documentation to be entered into the courts which results in WCB’s network of doctors to provide biased and false medical opinions that results in denial of a claim or benefits without any responsibility or justification for their opinions. Questionably is why would the Alberta Government enact legislation that protects doctors from litigation by not allowing a plaintiff to use their medical reports in the courts to prove malice or incompetence. Both Plageman and Barnes had the audacity to claim in the courts that they do not have a duty of care to any claimant because they offer only an opinion and do not provide any medical care. According to the College of Physicians and Surgeons a doctor has the right to provide any opinion they want even if it is knowingly false or misleading and the College justifies this by stating that a doctor’s opinion is simply an opinion and it is the decision makers responsibility to ensure that the opinion is based on medical fact.

 

I have spoke to Mr. Milne on a number of occasions and have met him personally. I have discussed a class action lawsuit with him which would be based on what I consider to be a reasonable chance of success. From research, I have found that there are a number of areas where WCB policy is not in compliance with the WCA which would be the best way to proceed with a class action lawsuit rather to file a class action lawsuit involving individual claims or medical opinions that would most likely result in failure. At present I have three claims that I am assisting the claimants on and will be used as a test run to have WCB, the DRDRB and the Appeals Commission provide a decision on. All claims are long standing claims, one goes back to 1973, and two claims to 1993. All of the claims are backed by legal precedent which was heard and decided by the Alberta Court of Appeal and never appealed to the Supreme Court by either the plaintiff or the Appeals Commission. If any one wants the details, I would be more than willing to explain how WCB policy is not in compliance with the WCA and has not been since approximately 1960. If any workers know of a lawyer or law firm who would be willing to pursue a class action lawsuit based on my findings, I would be more than willing to provide then with the information I have gathered.

 

When I was involved with Justice Friedman in making recommendations to improve the system, one of my recommendation provided by myself was for total transparency in the system which is one of the major problems in the system and can be attributed to the Appeals Commission who believe that all claims are confidential, yet all of the court cases involving Mr. Milne provides his name, the names of all the doctors involved in his claim and as well the media can sit in and listen to the court proceedings. There is absolutely no reason why an in person hearing should disallow the media from attending or for that matter any member of the public. The public has a right to know who the Case Manager was, who the DRDRB member was, who the doctors were involved in the claim. Knowing all of this is the only way that people like myself can analyze a claim which would over a period of time indicate whether a doctor is always providing negative medical opinions, the competence of a Case Manager, the competence of a DRDRB member etc could all be analyzed by total transparency. As a person who has an extensive background as an analyzer (Most of my adult working life) total transparency is crucial in analyzing a claim. Total transparency would allow me to determine a trend in evaluating people involvement in the claim. For example: How many claims have Plageman and Barnes been involved in that were based on false medical opinions? I know a WCB doctor who has performed thousands of impairment ratings that were not performed correctly. How many other worker’s lives besides Mr. Milne’s have these doctors ruined by providing false medical opinions?

 

A recommendation by Justice Friedman was to get rid of George Pheasy who is another major problem with the Appeals Commission. The reason for this is numerous errors in law occur on a regular basis and Mr. Pheasy has no legal background in Administrative Law. He also does not possess any medical knowledge that is a major requirement of some one who is the Chief Appeals Commissioner. My experience with Mr. Pheasy is that he is an arrogant, pompous, narcissistic individual who rather than admitting to making mistakes, covers up these mistakes by refusing to reconsider new evidence that proves the Appeals Commission made a mistake. Covering up a mistake rather than admitting there was a mistake results in civil litigation as clearly in covering up a mistake you cannot then plead that it was an honest mistake. Two claims that I represented workers on resulted in irrefutable evidence that there was a causal relation. Despite the fact that the Threshold Reconsideration Committee did not agree with George, he denied the claim. The other claim went before a Human Rights Tribunal after the Appeals Commission had determined that there was no PCI rating and when the American Medical Association supported me by determining that there was an impairment rating and WCB agreed that there was, he refused to accept the evidence and forbid any one in the Appeals Commission to have anything to do with me.

 

There has been no improvements made in the appeals system and perhaps rather than going through more investigations of how to make the system more accountable and transparent, the Appeals Commission and the MRP should be abolished and any claim that is appealed following a decision of the DRDRB should go into the courts. The Office of the Appeals Advisor should be moved under the Minister in charge of the WCB and staffed by lawyers trained in Administrative Law who would represent workers in the courts at no charge. They also would use their judgement to appeal any lower court’s decision to the Alberta Court of Appeal and to the Supreme Court if necessary. No worker should be represented by any one other than a lawyer which would then make all claims decided on a level playing field instead of the bullying tactics used by WCB, the DRDRB and especially the WCB Appeals Commission used against workers with little education, limited finances and limited medical knowledge. An investigative article in the Edmonton Sun found that all workers who were represented by lawyers or union lawyers resulted in workers having their claims and benefits accepted as opposed to workers who could not afford a lawyer or were not represented by a union.

 

Noticeably is the fact that Mr. Milne was forced to represent himself and has done a remarkable job of doing so. I have great respect for Mr. Milne who despite all odds has not given up and his family has to be very proud of him for being the man that he is. It is unfortunate that the Office of the Appeals Advisor or WCB Advocates take a worker’s money and do not tell the worker that they do not have any legal right to represent the worker in the courts if a worker wishes to pursue a Judicial Review or Judicial Appeal of an Appeals Commission decision. For any one to act as their own lawyer without any legal experience does show how remarkable a person Mr. Milne is.

 

It is also a fact that WCB has spent over two hundred thousand dollars on this claim despite the fact that they maintain despite irrefutable evidence that the injury to the facet joints is not work related. How can it not be work related when, Mr. Milne had no prior history of a spinal injury. Of course, WCB doctors seem to always blame any spinal injury to degenerative disc disease. Noticeably also is that Mr. Milne also is suing WCB for several million dollars which again should not happen especially when the evidence and the final diagnosis by experts have determined that the injury was caused by the work. My advice would be to settle out of court and let Mr. Milne and his family alone.

 

According to Dr. Scanlon, the work hardening program and the chronic pain clinic did in fact cause further needless injury to Mr. Milne and I suppose that this is the reason why Columbia settled the civil claim against them out of court. How many times has this happened when a worker is sent for work hardening, FCE and chronic pain rehabilitation before a diagnosis is made as to the cause of the chronic pain? Common sense and logic would be that as long as a worker has chronic pain, you do not send him/her for a FCE, work hardening or chronic pain rehabilitation. To add insult to injury, any worker who has chronic pain despite normal test results is always sent to a Psychologist who will inevitably determine that the worker is faking the pain or malingering.

 

Based on Mr. Milne’s experience in representing himself, if a lawyer or law firm will not represent a class action lawsuit on a contingency basis, it would be perfectly legal for Mr. Milne to represent the class if he would join the class action and represent himself as being one of the plaintiffs. Of course class action lawsuits or lawsuits such as Mr. Milne filed would not be necessary if the Alberta Government would have a court provide a Judicial Inquiry or Public Inquiry into how the system operates or if not that, to appoint a review committee to hear long standing claims which are in the thousands. In fact I may even agree to sit on a committee to hear long standing claims.

 

The privatization of the Alberta WCB has been a dismal failure and the Government should consider taking back control of a system that instead of helping workers, treats workers with contempt. The assets of WCB belong to employers who fund the system and these assets would then revert to the Alberta Government. Recent studies have concluded that a public system is far superior to a private system who only are concerned with their own self interests rather than the needs of workers. Recent studies have also concluded that private WCB systems shift the costs of claims unto the public system who are forced to provide health care costs and social assistance to workers whose claims and benefits have been illegally denied. The costs for the public system to have these costs of caring for workers has been estimated in the billions of dollars in the U.S. and in Canada would also be in the hundreds of millions or billions of dollars. Going back to a public system is a no brainer and could have been a platform that the Wildrose party could have used to attain power. I must admit that at one time I favoured a private system but after a careful analysis, I no longer believe that a private system is a viable option. I have no qualms about admitting that I made a mistake unlike WCB, the DRDRB and the Appeals Commission who will continue to fight a worker even though they know they made a mistake.

 

Change is needed and turning a blind eye is not a solution. Because of the adversarial environment that exists with the WCB, excessive amounts of money is spent bullying workers to accept the denial of the claims and benefits. A publicly owned and operated system could eliminate this adversarial environment and reduce staff by 50-75%, thereby reducing costs. Reducing costs could also be attained by a mutual agreement by workers and employers sharing the costs of earning loss insurance which was a proposal made over one hundred years ago but was never considered.

 

Over the years we have witnessed workers like Gregory Jacks committing public suicide where he blew his head off with a shotgun, we have had hostage takings on numerous occasions in Calgary and in Edmonton, we have witnessed rallies and speeches, we have had a commission investigative process, we have had posturing in the legislation by various opposition parties, we have had lawsuits filed against WCB with mixed success, we have had legal precedents such as the Johnson decision by the Alberta Court of Appeals on several occasions supporting workers, we have had the Supreme Court determining in workers favour involving chronic pain, yet nothing has been done to change the culture of denial. It is only through the courts that workers have managed to hold WCB accountable but with no follow up. It is only through the courts that justice will be done or seen to be done and the only recourse for workers is a class action suit against the Alberta Government and the WCB for violating the principle of natural justice, violating the WCA and WCB policies. As some one who has never had a WCB claim, I cannot do any more for workers other than to explain to them why I consider a class action lawsuit and the reasons why I feel that a class action lawsuit would be reasonably successful.

 

Gerry Miller

 

“For evil to flourish, all that is needed is for good people to do nothing” – Edmund Burke