Jan 302019
 

By Gerald

I have been diligently working on two long standing claims, one ten years old and the other 46 years old that resulted in denied claims and benefits that now have been reviewed and benefits that should have been paid 46 years ago are now being paid on the most minimal method WCB can think of. Most if not all long standing claims if reviewed by competent persons like myself would be overturned because of major, most likely blatant denials and not simple mistakes by all three levels of appeals and the only thing standing in the way was the Klein government and now the Notley government  who for whatever illogical reason are or were convinced that the same decision made previously by any of the three levels of incompetence would not change. I beg to differ as the devil is in the details and the proof is that any one with any expertise in workers compensation would have very little trouble in having most if not all the past denied claims and benefit decisions over turned, just as I have began to do.  

First and foremost is that workers by law do not have to appeal a claim thus eliminating any statute of limitations as there is no statute of limitations based on new evidence. Those workers who have filed appeals have placed themselves into a quagmire of uncertainties by appealing a decision of a Case Manager to the DRDRB who more than likely will uphold the decision of the Case Manager even when the evidence does not support a denial. Appealing a decision of the DRDRB to the Appeals Commission is one of the most foolish things I have ever done and in hindsight, I would advise no one to appeal anything because as long as the claim remains at the Customer Service level and new evidence becomes available, there is a better chance of having the new evidence used to have the initial denial over turned. 

I have put a great deal of thought into this and I must apologize for the lengthy e-mail but once I get going, everything that is wrong with the system comes to the fore and in my opinion there is nothing good about the system. I was recently requested to assist a worker whose claim goes back 28 years and I have never seen a claim so convoluted, so disgusting in my entire life. The worker in question came to Canada as an immigrant chasing the Canadian dream. A well educated man, former member of the Polish Navy and emigrated via Germany. He worked very hard when he arrived and very shortly become an apprentice electrician and several months into the job, he injured his back in a work related incident. He was accepted on workers compensation and endured two subsequent back surgeries that resulted in failed back surgery leaving him a broken man with his hopes and ambitions of fulfilling the Canadian dream totally out of the question. Still convinced that even after failed back surgery, he requested WCB pay for upgrading his education which they refused.He paid his own university expenses (University of New Brunswick) on borrowed money and received his degree. All the jobs he had were interrupted by problems with his failed back surgery. WCB treated this young ambitious man with contempt, disrespect, lying to him as to what he was entitled to, cheating him of what he was entitled to and made his life a living hell which he is still enduring.

Not being able to express himself fluently in the English language he was insulted by WCB personnel and also by the Appeals Commission. Not knowing the WCB system he was forced to pay for WCB Advocates like Thomas Lukaszuk who took his retainer fee and left him high and dry. This was followed by our illustrious Justice Minister, Ganley who took his money posing as an expert in workers compensation law. He went to the Courts on Judicial Review and to the Alberta Court of Appeal but unfortunately there are very few Judges who are experts in administrative law that is specific to workers compensation and the advice he was given by the Court was to give up. Like many other workers he heard of me and requested my assistance. I was utterly flabbergasted by him referring to an Appeals Commission Decision 2018-0311 https://www.canlii.org/en/ab/abwcac/doc/2018/2018canlii67014/2018canlii67014.html?autocompleteStr=2018-0311&autocompletePos=1

Reading though this should be a convincing argument that the worst thing that a worker can do is to file appeals. The claim is so convoluted that the Appeals Commission have no idea who has jurisdiction, them, the DRDRB or Customer Services. Despite my expertise, I also have no idea who has jurisdiction to hear new evidence, appeal to who and the worker himself is confused by appealing or requesting a reconsideration for claims he made that were accepted. As well he was diagnosed with drop foot, bilateral metatarsalgia, left ankle equinus, bilateral functional hallux limitus  which are all compensable conditions, high blood pressure, major depressive disorder as a result of his disability and unable to work and support his family and did not receive any compensation for any of these conditions. Being that WCB uses PCI ratings as a direct method of rating a disability which was found to be illegal by the Alberta Court of Queens Bench and upheld by the Alberta Court of Appeals, he received a PCI rating of 20% which they did not convert to a disability rating to determine a loss of  earnings. He received no PCI or PPD (loss of earnings) for any of his lower extremity diagnosed conditions and as well for his psychiatric assessment diagnosed as major depressive disorder which a psychiatrist attributed to his treatment by WCB. Again, no PCI ratng for the major depressive disorder caused by WCB. Unfortunately for him, all of this was denied and not knowing the system and how WCB and the Appeals Commission use manipulative methods for much of the illegal methods used by WCB, many of his appeals and requests for reconsideration were subject to the statute of limitations and the worker cannot proceed despite the fact that he was entitled to receive an  increased earning loss based on total disability. 

Because he kept appealing and requesting reconsiderations he was subject to the statute of limitations whereas if he simply gathered more evidence and not appealed, his claim would have never have gone through the appeals process. 

The worst case scenario is appealing a claim to the Appeals Commission and having the claim turned down based on falsified documentary evidence provided by WCB Medical Consultants who despite a worker requests to subpoena the doctors,the Appeals Commission refuse, thus allowing doctors of having no responsibility in defending their opinions. The Appeals Commission have rules of procedure that makes it impossible to present new evidence and is why it is far better to not appeal and when new evidence becomes available a worker presents the new evidence to WCB who have very little reasons to deny any new evidence. 

It is clear to me that the Government in 1988 believed another level of appeal would be beneficial to workers which clearly is a mistake as prior to 1988, an appeal could be made to the WCB BoD and they were far better at reviewing claims than the Appeals Commission. The WCB BoD were comprised of equal representation of workers, employers and the general public as opposed to the Appeals Commission who are made up with most likely political appointments with no worker representation at all which leads to a reasonable apprehension of bias when adjudicating claims. Further to this when there is a Judicial Review, both the Appeals Commission and WCB join forces using money out of the accident fund to fight a worker who is forced to represent themselves leading to procedural unfairness or in the words of Justice Maclean, not a level playing field. Fortunately for some workers, the NDP Government did rescind legislation that would allow the Appeals Commission to not being able to review or adjudicate claims prior to Nov. 1988 but neglect to enact legislation as to who has jurisdiction to reconsider claims prior to this date.

The present Government brought in the Fair Practices Office which based on one workers experience is as useless as the Appeals Commission as some workers are now finding out. According to a letter sent to a particular worker who e-mailed me the letter, the Fair Practice Office is simply another name for the Office of the Appeals Advisor but now under the Minister who is as dense as they are. The worker in question believed that the Fair Practice Office would assist him and in a letter he received which he sent me a copy, they refused to assist him and recommended that he contact some one else to assist him. This is the copy of the letter that he sent to me from the worker that he received from the FPO.

I am writing in response to the Worker’s Authorization form you recently submitted to the Worker Appeals
Branch of the Fair Practices Office (FPO).

The Worker Appeals Advisor Branch was formally the Office of the Appeals Advisor (OAA) department at the
WCB. The department transitioned to the FPO on December 1,2018.

I reviewed the numerous correspondence sent to you over the years from the Office of the Appeals Advisor
which confirmed that the office was unable to provide any assistance to you regarding ongoing appeal issues.
The most recent letter was sent by Janet Welch, Manager of the OAA, on June 1-, 2018. In that letter, it was
confirmed that we were once again unable to provide any assistance to you.

I have reviewed your claim file and your most recent correspondence to the WCB and to the Appeals
Commission and I am in agreement that we are unable to assist you with any current appeal matters.
However, you are able to obtain alternate representation or to continue representing yourself.

Perhaps Ms. Notley and Ms. Gray could explain why the FPO have refused to assist him and then recommending that he represent himself or pay thousands of dollars to people like Ganley and Lukaszuk for a  retainer to have some one else represent him. According to Section 3(1)(e) of the Fair Practices Office Regulation it says per verbatim; The Commissioner shall establish procedures respecting the following: “the assistance of workers, workers dependants,or employers in navigating the workers compensation system, including procedures respecting the direction of workers, workers dependants or employers to an appropriate resource, person or organization for assistance”.  

What does navigating the workers compensation system mean and what assistance do they give as evidently they did in fact refuse to offer any assistance to the worker. The worker compensation system also includes Judicial Reviews which can be very costly. Rather than have workers left with having to represent themselves through the system, why not simply get rid of the FPO and bring in legislation allowing workers to utilize the accident fund to hire some one to represent them throughout the process including legal representation in Judicial Reviews, thus creating a level playing field if in fact a worker is able to find a lawyer who is an expert on workers compensation systems which at this time, there are no lawyers in Alberta who are experts in workers compensation. 

Workers through being forced into a system that does not work not only cannot sue the employer, they cannot sue WCB, DRDRB, FPO, Appeals Commission, Medical Panels, they cannot subpoena witnesses and have lost all their rights under the Charter simply because they were forced by Governments to give up their rights to in exchange for the insecurity of having claims and benefits accepted, burden of proof placed on them illegally and forced onto Social Assistance. On top of all of this workers were forced into an administrative system rather than have their day in court, go through a fair trial and adjudicated by a real judge rather than the morons who have never been trained in administrative law that is specific to WCB systems, deciding medical issues without any training in medicine. This is the historic agreement that workers were forced into by Governments who through legislation provided absolute power to adjudicators without any checks or balances provided by Government. A letter from Gray to a worker explained that the Government has no control over WCB or the Appeals Commission. That being the case, who does have control. If I may, the people who do have control over WCB, DRDRB, BoD and the Appeals Commission is the Government who have the power to enact legislation that would force WCB, DRDRB,BoD and the Appeals Commission to comply with the legislation but choose not to protect workers from the corruptible and blatant abuse of power that the Government has given them. For example: no one knows who has the burden of proof, for and against. Under the Charter, can the Appeals Commission deny the attendance of witnesses despite all the evidence in all workers claims being based on documentary hearsay and without the right to have witnesses subpoenaed and cross examined, the Appeals Commission make their decisions on documentary hearsay. Should workers not be entitled to be represented by legal counsel and have this paid out of the accident fund. In the workers compensation system specific to causation, if the cause is unknown, why is the benefit of doubt not given to the worker. Legislation could remedy all the inhumane decisions made by all three levels of adjudication but even when the SCC determines that chronic non discernible pain must be compensated for, the Alberta Government does not enforce the decisions of the SCC. WCB and the Appeals Commission deny paying for medical marijuana as the archaic legislation in the WCA allows WCB discretion to pay for medical marijuana which legislation could force WCB to pay for any medical assistance that is prescribed by the workers doctor. Numerous states in the U.S. are enacting legislation to force WCB insurance companies to pay for medical marijuana which has been scientifically proven to assist chronic pain rather than opiates which are addictive, have serious side effects and is a major contributing factor in suicides.

Administrative law is not the same from one body to the other and how a decision is made has no real consequences in any other administrative functions unlike workers compensation decisions that can and does result in suicides and homicides because of grossly illogical decisions made by incompetent or blatant denial of claims or benefits. It is crucial that no mistakes be made to prevent unnecessary deaths. There should never be any mistakes especially when a claim is in doubt which in many cases it is, the benefit of doubt must go to the worker. There are numerous administrative bodies that work quite well. There are administrative bodies that are appointed to determine how many chickens that a poultry producer can send to market, how much milk to send to market, labor board etc. A farmer does not commit suicide or kill his family because the egg marketing board cut back on the amount of eggs the farmer can send to market. Another good example is human rights which is an administrative system based on an adversarial principle but a complainant need not pay to have some one represent them as once a complaint has been accepted, Legal Counsel for the Director takes over the complaint and the complainant receives legal representation at no cost.  

Appeals could be drastically reduced or eliminated entirely if at the Customer Service level, witnesses such as doctors were subpoenaed and cross examined under oath. Cross examination of witnesses in all legal systems is a corner stone of the justice system but for some grossly illogical reason most if not all claims go on for years because of in most cases doctors knowingly or ignorantly providing false medical evidence that becomes a part of the documentary file that cannot be cross examined as you cannot cross examine a piece of paper. An example that I experienced first hand is when I filed a claim on behalf of a worker for post polio syndrome caused by trauma. A WCB Medical Advisor (Dr. Grieve) falsely claimed that post polio syndrome was not caused by trauma. I contacted two of the world’s leading experts in post polio syndrome (Dr. Richard Bruno and Dr. Lauro Halstead) and both verified that post polio syndrome can be caused by trauma, either through a physical or mental cause. The Appeals Commission questioned the qualifications of the two worlds leading experts and found the opinion of an unknown and incompetent General Practitioner more compelling and accepted the opinion of the WCB Medical Advisor by the name of Dr. Grieve who incidentally also provided false evidence on behalf of WCB and the Appeals Commission who denied a claim based on her evidence. This claim went to Judicial Review cited as Boyd v. Alberta (Workers Compensation Board) where the Court of Queens Bench overturned the decision of the Appeals Commission, the DRDRB and the Case Manager determining that Dr. Grieve did not provide a valid or compelling medical opinion which made the schmucks that denied the claim look like fools. In the 46 year old claim that I was involved with, WCB in the meantime, had arranged for a Physiatrist  who had experience in PPS and he supported trauma as being he cause of the worker’s PPS thus forcing WCB to provide benefits ($92,000.00) that obviously will be appealed as the amount of money is far less than what he is entitled to as he received more money from Social Assistance in 46 years than what he is getting from WCB that in reality is only $2000.00 a year. As usual there was no interest added or COLA increases.   

Unfortunately for all workers, even though an injury may have occurred 40 years or more ago, WCB according to policy do not have to provide a loss of earnings going back to when the injury occurred. Policy 04-04 Part II Application 5 Question 7  allows WCB to select a half way point between when the injury first occurred and the date of the examination that confirmed the injury. For example in the case of a worker I represented it was noted by the surgeon performing back surgery that the worker did not have a claw foot at that time but when examined several months later, he noted the worker had developed a claw foot as a result of his back injury that severed his sciatic nerve which never did grow back. It took over 40 years for WCB to acknowledge the claim for a claw foot and then they took the half way point which was 1974 and the date of the examination by a doctor in 20015 that confirmed that the claw foot developed in 1974 but the worker received half of what he was entitled to. To suggest that this is not corruption would suggest that Clifford Olson was a good honorable man even though he raped and killed numerous children. Obviously Gray and Notley are aware that the system is broken and has been for decades and still persist in ignoring the obvious. 

Another example of outright lying was when a Case Manager lied about an employer offering modified work when both the employer and the worker denied that modified work was offered. Despite the evidence from both the worker and the employer, both the DRDRB and the Appeals Commission accepted the documentary report of the Case Manager who blatantly lied to receive her bonus after terminating his claim when she wrote in her report that the employer offered modified work and the worker refused the offer resulting in the DRDRB and the Appeals Commission denying his claim. Despite my request to subpoena the Case Manager and the employer, my request was denied by the Appeals Commission and documentary evidence provided by the Case Manager which cannot be cross examined was used to deny the claim. I have reason to believe that the decision to deny subpoenaing the Case Manager and the employer was done deliberately by the Appeals Commission to ensure that the DRDRB and the Appeals Commission were not made to look like fools. These are but two of the many instances where I have requested subpoenaing of witnesses and been denied because under cross examination any witness will eventually fold especially when their evidence provided by documentation becomes subject to cross examination. I have had the Appeals Commission question the qualifications of world recognized medical experts supporting me in other situations and then denying the claim based on local doctors who provided falsified documentary evidence that cannot be cross examined. Although we have what is referred to as an Inquiry based system in Canada, the appeals process does not use this model as the appeals process is conducted on an adversarial model but adjudicated on a documentary basis leading to a culture of denial. In the U.S. adjudication is based on a adversarial model but adjudication is based on having the litigants (worker and employer) along with witnesses, generally doctors, appear in court, heard by an ALJ, (Administrative Law Judge) not some ignorant Case Manager, DRDRB or an Appeals Commissioner. An ALJ who has extensive training in workers compensation law listens to the evidence and makes a decision based on the evidence that is provided and cross examined by lawyers on both sides. Because of the expertise of worker’s lawyers versus the expertise of employers lawyers, it is rare that a worker’s lawyer ever loses. Worker’s lawyers because of their expertise and track record of winning represent workers on a contingency basis with many of them earning very lucrative earnings. 

Despite the WCA in Alberta giving Case Managers and the DRDRB the same powers as the Court of Queens Bench, they can in all claims, conduct an in person hearing, subpoena witnesses, hear the evidence under cross examination which they argue they do not have the power to do that. My argument is that if they have the same powers as a Judge, they do have the power to conduct an in person hearing, subpoena witnesses and cross examine the witnesses under oath which if done, would save millions of dollars in added costs by reducing or eliminating the hundreds or thousands of claims going to the DRDRB and the Appeals Commission on documentary evidence that cannot be cross examined. 

Researching the people involved in the WCB system, they all have a a common link based on their curriculum vitae. In the case cited as Boyd v. Alberta Workers Compensation Board, the Appeals Commission Legal Counsel was Dale Wispinski who was arguing against Mr. Boyd who is now the Chief Appeals Commissioner. In my opinion this would be a reasonable apprehension of bias when the Chief Appeals Commissioner is a former opponent of a worker.  The recently appointed Chair of the WCB BoD who was supposed to represent workers when she served as a member of the WCB BoD assisted in enacting Policy 04-04 Part II Application 5 Question 7  that allows WCB to pay only half of what a worker is entitled to. When looking at the Appeals Commissioner’s CV they all share a common thread, that being former members of WCB (New President of WCB is a a former WCB executive) and as you go down the list of Appeals Commissioner’s all or most are former Government employees, lawyers, managers, and employers with no blue collar workers selected by the Government to serve as Appeals Commissioners. The only person who would be considered to be a genuine blue collar worker is Stephan Dussault who was selected by the Government on May 8, 2018 and when looking on Canlii he has been involved in only 4 decisions and supported the worker in 3 of the four decisions. Questionably when reviewing the fourth decision he was involved in which is obviously in error as you cannot use the Alberta Guides in conjunction with the AMA Guides. The reason being is that impairment ratings taken from the AMA Guides are based on difficulty performing simple basic activities of daily living as opposed to the Alberta Guides that assess impairment ratings based on how an impairment rating may impact the workers life outside of the workplace which includes personal and social activities resulting in different reference points. On top of that, WCB by law cannot use the AMA Guides because the doctors who provided the impairment ratings are American doctors who are not licensed to practice the healing arts in Alberta, thus negating any impairment ratings provided by American doctors. Please read the WCA that makes it illegal to use foreign doctors assessment of impairment rating. Along with this, the AMA Guides do not use ROM in determining impairment and began using DRE (Diagnosed Related Estimates) in the 5th Edition and carried over to the 6th Edition. ROM assessment were found to be inaccurate as range of motion assessment and found to be subjective (under the control of the patient) which led to false assessments when a patient was malingering.  A person does not have to be a rocket scientist to be an Appeals Commissioner as blue collar workers with a junior high school education could adjudicate claims and make the same mistakes as the people selected. 

Questionably is why there is only one blue collar worker on the Appeals Commission when there are more blue collar workers injured or killed on a yearly basis. The overall makeup of the Appeals Commission are white collar workers who have more than likely have never done a heavy manual job in their life. Generally in law when being judged, you have the right to be judged by your peers, not people who have no understanding of what it is like to be forced to live in poverty , work hard to make a living in many cases in inclement weather as opposed to desk jockeys that have no idea what it is to perform blue collar work. Obviously the Government has this idea that blue collar workers are not intelligent enough to adjudicate claims and based on my experience any dummy could adjudicate claims as there is nothing difficult about studying the WCA, WCB policy or WCB regulations. When people are given jobs and allowed to make numerous mistakes and not beheld accountable, you could appoint Mickey Mouse and Donald Duck, feed them bird seed and not have to pay the excessive wages to the Appeals Commission.  

The worker in question along with hundreds or thousands of other workers would benefit from having his long standing claim reheard by competent, knowledgeable people like myself rather than the scum bags that are adjudicating claims at present. While I have continuously stated that the whole system is corrupt which it is and can be proven beyond a reasonable doubt. When a worker files a claim, a Case Manager will usually deny the claim, knowing that a large percentage of workers will not appeal. If they do appeal to the DRDRB, the DRDRB will deliberately deny a claim knowing that a large number of workers will not appeal to the Appeals Commission. The Appeals Commission will deliberately deny a claim knowing that most workers do not have the financial capability to hire a lawyer to go to Judicial Review and despite the fact that I am considered an expert, I cannot represent a worker in the court because the Government has enacted the Legal Professions Act to stop me from representing workers in court even though I was legally entitled to represent workers before Adjudicators who had the same powers as the Court of Queens Bench which is grossly illogical. If I had the expertise to represent workers in the system, then on Judicial Review, I should have the right to represent workers in a private Chambers setting before a Judge who has less power than the Appeals Commission as a Judge cannot overturn the decision of the Appeals Commission, by law all he can do is to send the claim back to the same body who denied the claim and they have the legal right to deny the claim again sending it back to the same body who denied the claim which is a violation of the Rules of Natural Justice. The same body cannot judge their own case but in the sick system, the Rules of Natural Justice are kicked to the curb. Any  worker who files for a Judicial Review without an expert to represent them is a damn fool and are made to look like a fool by WCB and Appeals Commission Legal Counsel who can lie to a Judge and have lied to a Judge simply because most Judges do not have a clue how the system works, are unfamiliar with the WCA, WCB policies and WCB regulations. 

Workers are not advised by Case Mangers what thy are entitled to despite workers being described by WCB as being clients, instead they are treated with contempt, rude and unacceptable behavior when they question their claim. Many workers are totally ignorant as to what they are entitled to such as personal care allowances, house keeping allowances, home maintenance allowances, interim relief allowances, PCI ratings due to every imaginable medical condition that range from sleep disorders, erectile difficulties, dry mouth, constipation, high blood pressure, liver disorders, stomach disorders, difficulty urinating, difficulty defecating, obesity, gait, chronic pain, sensory deficits, loss of muscle strength, any side effects of prescription medications, etc. which would include anything that makes it difficult to perform simple basic activities of daily living or the impact an impairment would have on activities outside the workplace such as riding a bike, dancing, playing ball, soccer, golf which are all social or personal activities that a worker may have difficulty with.  

I have no idea why the Government provided regulations giving WCB the right to not having to pay interest on claims that were illegally or blatantly denied and then after years of fighting for acceptance of the claim and benefits,there is no interest on the monies that WCB pays out. According to the B.C Supreme Court in a class action Judicial Review cited as Johnson v. Workers Compensation Board, Madam Gray determined that WCB has to pay interest from the  effective policy date and also retroactively. She provided a common sense explanation. The class action became totally convoluted when WCB and WCAT appealed the decision to the B.C. Court of Appeal. The B.C Court of Appeal determined that she had made an error in law and determined that she did not have jurisdiction on the retroactive issue and directed she rule on the WCB BoD new policy providing interest only if it could be proven that the decision to deny was blatant. On a rehearing, it was determined that the WCB BoD have by legislation the right to do anything they wanted as long as it was not patently unreasonable. The interesting part of the Johnson case was that the argument that was presented as being the reason for not paying interest was to protect the accident fund which is what I and many others have claimed was the primary reason for the way WCB adjudicates claims and not to ensure that  workers do not become a charge on family, friends and society which was supposed to be the primary purpose of the system. The whole system had evolved from what was intended by Meredith to nothing more than protecting an employer from litigation and protecting the accident fund which questions why the NDP bothered to put in the preamble of the WCA what is pure and simple bullshit by stating; “whereas the purpose of the workers compensation system is to provide appropriate compensation to workers who suffer workplace-related injuries and illnesses, whereas the central focus of the workers compensation system is the health and well-being of workers. This sounds good in theory but in practice the whole purpose of the system is to protect employers form litigation and to protect the accident fund to keep premiums lower than other provinces to entice employers to stay in a location or have other employers in other provinces re-locate. Why would Government pass legislation empowering WCB to avoid paying interest on a debt owed to workers unless they are complicit in defrauding workers. That being the case, no one should have to pay interest on any outstanding debts to protect their savings accounts. There is very little doubt that claims are blatantly denied, knowing that if at some time in the future if they are forced to accept a claim or benefits, they do not have to pay interest on the accrued benefits which in essence encourages the denial of claims and benefits. Workers cannot sue WCB for making a mistake, they cannot collect interest on monies owed leaving workers who have lost their homes, broken marriages, children growing up in poverty and the Government sits back and does nothing. Little wonder workers turn to violence when the Government fails to protect them from a body like WCB who in many peoples minds are nothing more than organized crime or racketeering.

Prior to Jan 1, 1995, WCB used PCI ratings as a direct method of rating a disability which was found by the Court of Queens Bench and the Alberta Court of Appeal to be illegal which it always was illegal but the morons with high paying jobs never realized that there was no correlation between an impairment and a disability which WCB defines as a loss of earnings which resulted in workers receiving life time pensions when they received an impairment rating when they did not have a loss of earnings. Using impairment ratings a s a direct method of rating a disability also provides inadequate pensions for those workers who may be totally disabled from working at any gainful employment and receive an inadequate pension based on an impairment rating that has nothing to do with the ability to work or to determine a loss of earnings from pre-injury to post-injury. Workers or more likely their representatives who clued into this fact began filing claims for every imaginable impairment rating to increase their life time pensions despite the fact they may never had a loss of earnings. The high paid morons at WCB finally decided that after the Alberta courts determined that impairment ratings used as a direct method of rating impairment was illegal and separated the impairment rating from an earning loss by now using impairment ratings for a NELP and an earning loss as an ELP. 

Jan 222018
 

By Gerald

Click on the following link: https://www.alberta.ca/release.cfm?xID=522899A395324-C302-107C-BCF199961973BE25

While I have nothing against presumptive status for all workers, question is whether it is legal to provide presumptive status to one occupation and not to all other occupations. Unfortunately, under Alberta Human Rights Legislation as is other provincial and federal legislation it is legal to discriminate based on a person’s occupation as a person’s occupation is not within the protected grounds or group characteristics that are protected. In other words if a person or group is not within the protected grounds under provincial legislation or federal legislation, then equality does not apply, however under the charter, section 15.1 of the Charter, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. 

The Alberta Human Rights Act is like any other poorly written legislation. In the introduction, the “Act” states that it is a fundamental principle and a matter of public policy that all persons are equal in: dignity, rights and responsibilities. The “Act” then contradicts itself then by excluding equal protection for every one other than the individuals or groups that fit into the protected categories. Occupation is not included in the protected category. Oddly enough, nor was gender identity, gender expression, or sexual orientation which was added, yet the Government would not add occupation. I did file a human rights complaint after presumptive status was enacted in legislation for firefighters and although the Alberta Human Rights Commission agreed that the legislation resulted in differential treatment, by law they did not have jurisdiction to include occupation in the “Act”. My complaint was dismissed which in all fairness was a good decision. I was advised to file a complaint with the Office of the Ombudsman which I did. They also agreed that the legislation did result in differential treatment and they could not change legislation. It was recommended that I contact the Minister of Justice Jonathon Denis whose office responded but suggested that there was nothing they could do which in reality was that they would not do anything because if they did add occupations to the protected category, the Government and the opposition who had voted in favor of the Magnus “Bill” would look like a bunch of morons 

The introduction of presumptive status for firefighters was first introduced in Canada by  the Manitoba government by copying the introduction of presumptive status for firefighters by their neighbor, Minnesota. Problem with this is, in Canada adjudication in all provinces is supposed to be based on an Inquiry system not an Adversarial system which is used in the U.S. where the burden of proof is on the worker and the employer. In Canada, in an Inquiry system, the burden of proof both for and against is on the “Board” Some how, the system in Canada has gone from an Inquiry system to an Adversarial system and the burden of proof has been illegally placed on the worker.

Firefighters by law, should have never had to prove causation and employers did not have to prove contrary which is the way an Inquiry system works. Because the benefit of doubt has to always go to the worker, all workers have presumptive status when the claim remains in the neutral position.  Because no one knows what causes cancer, all claims would remain in the neutral state. If in fact we knew what causes cancer, we would have come up with a cure by now. Providing presumption status only for fire fighters  for myocardial infarction is another gross injustice to other workers when workers such as office workers are more at risk than a firefighter due to the sedentary nature of their job. The same goes for PTSD which can happen to anyone even when diagnosed with a terminal illness such as cancer. Further to this is in proving causation, adjudication is supposed to be based on a balance of probability and not on medical probability which is far higher than the legal standard. It does not have to be proven that any occupational group has to prove that they are double the general population risk, triple or 20 times the risk. In fact, if epidemiological studies would perform a risk analysis on most occupational groups and compare the risk to the general population, it would be determined that there is a higher risk. For example: workers performing repetitive work over prolonged periods of time have 20 times the risk of cumulative trauma disorders such as carpal tunnel syndrome, tendinitis, pulled ligaments or any other injury to the upper extremities.  As well, these same workers have a much higher risk of vascular disturbances to the upper extremities ( Schedule B Section 8) when blood flow to vital parts of the upper extremities is reduced resulting in abnormal bone formation during the bone remodeling process that is subject to stress fractures that would not affect normal bone. This results in sever medical conditions such as avascular necrosis of the scaphoids (Preisers disease) or avascular necrosis of the lunate (Kienbocks disease) which are recognized by experts as being work related but never accepted by WCB, DRDRB and the Appeals Commission who do not have any medical expertise and wouldn’t know Preiser’s disease from hemorrhoids. Section 24(6) of the WCA deems that “all” workers employed in an industry within the last 12 months are deemed by the regulations to have caused that accident and thus is not discriminatory questioning why the Government provided presumption status only to firefighters and first responders which is discriminatory. Epidemiological studies have also determined that workers in occupations where they are exposed to harmful carcinogens on a daily basis have a much higher risk than firefighters. That being the case then why is the government not enacting presumptive status for workers in these occupations. Would the Government bring in presumptive legislation for firefighters and first responders in the criminal justice system where only firefighters and first responders would be presumed innocent until proven guilty and all other individuals would be considered guilty and have to prove their innocence.

The presumption for firefighters was introduced by Richard Magnus who I knew quite well as he was my Alderman in Calgary. We argued over his introduction of the “Bill” as in my opinion, under an Inquiry system, firefighters did not have to prove causation and furthermore the “Bill” was illegal under the Charter. Richard, not being a lawyer or having any knowledge of the historic agreement specific to an Inquiry system and burden of proof  had no idea what I was talking about and went ahead and sponsored the “Bill” which was enacted by the Conservative Government when Clint Dunford was the Minister in charge of WCB. I also argued with him and he also had no idea what I was talking about. The issue specific to how long a firefighter must work in their occupation before presumptive status begins has gone to the courts in several states as being unconstitutional or discriminatory. A firefighter was diagnosed with cancer after two years of employment and the required time was ten years. The court determined that length of exposure was discrimination ion and overturned the denial of his claim. 

As far as burden of proof goes, workers do not have any powers of investigation, so why would any one put the burden of proof on some one who by law and policy makes it illegal to gather evidence. This is supported by the WCA Section 17(1) that gives WCB “exclusive” jurisdiction to examine, inquire into, hear and determine all matters. Surely, the Government knows that the word exclusive jurisdiction excludes everyone including workers from gathering evidence, yet the Government sits back and do nothing when WCB, DRDRB and the Appeals Commission places the burden of proof on workers.

If in fact any worker whose claim was turned down would take the issue of presumptive legislation to the courts contrary to Section 15.1 of the Charter which provides presumptive status to an identifiable occupational group and not providing presumptive status to all occupational groups according to numerous lawyers, the worker would win.

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