On Nov. 8 and 9th of 2016 we attended an in person hearing adjudicated by R. Fong who was the Hearing Chair, D. Jossa and J. McKenna who were Commissioners. On July 6, 2017, they presented a partial decision but as of this time ( 15 months later) we are still waiting for a full decision. Oddly enough, workers compensation according to the Supreme court of Canada, one of the fundamental principles of workers compensation is that compensation is paid to injured workers quickly, yet one of the claims goes back to 1973 and the other one to 1988. Also it is odd that the WCA provides statute of limitations for doctors, workers and employers but there is no statute of limitations on decisions made by a Case Manager, DRDRB or the Appeals Commission. A worker or employer could wait for decades to receive a decision from a Case Manager, DRDRB and the Appeals Commission which questions the SCC as to their belief that compensation is paid quickly.
In the claim at hand, the problem the Appeals Commission are having is attempting to explain why WCB and themselves were equating directly an impairment rating to a disability rating or loss of earnings without incriminating WCB, DRDRB and themselves. WCB, DRDRB and the Appeals Commission have known for decades that impairment ratings do not directly equate to a disability or loss of earnings, yet this was what all three of these bodies were doing despite the Alberta Court of Appeals decision (the Penny decision) that the WCA is specific to determining a disability or loss of earnings, not an impairment. This is explained at the beginning of the WCA Section 1(1)(u) which states in part; “pension” means a periodic payment to a worker in respect of whom a permanent disability has been assessed”. It does not state that a pension means a periodic payment to a worker in respect of whom a permanent clinical impairment has been assessed. This was not a mistake, rather it is criminal fraud and a Calgary City Police Commercial Crimes Unit made this decision. The Crown refused to lay charges more than likely at the direction of the Justice Minister who was of the opinion that this would most likely destroy the Alberta WCB if criminal charges were laid.
For convenience of understanding, I have attached in part a page from the AMA Guides to better understand the reference that is used in determining impairment. I attended a recent IME performed by Dr. Rocheleau (Physiatrist) on behalf of WCB. He was dumbfounded that a PCI rating for erectile dysfunction could result in up to a 15% PCI rating which WCB illegally equates to a disability rating and doing this results in a life time pension in the hundreds of thousands of dollars to workers despite a worker not having any loss of earnings. This is what would be like winning the lottery.
When referencing Table 1-2 only a moron would provide a life time pension to a worker who has no loss of earnings but has difficulty getting an erection, orgasm, ejaculation, lubrication, combing their hair, urinating, defecating to name a few difficulties in Table 1-2 which has got nothing to do with work or loss of earnings.
Not wanting to admit they had made a mistake and have to re-adjudicate thousands of claims, WCB, DRDRB and the Appeals Commission in collusion with the WCB Board of Directors decided to continue defrauding workers and employers and went to a dual awards system separating impairment with disability. Rather than use Section 56 of the WCA as they did prior to Jan 1, 1995 by illegally using impairment ratings and equating the impairment ratings to disability ratings, they separated impairment ratings and disability ratings with impairment ratings now coming under Section 69 of the WCA.
I have no idea when the Appeals Commission will address this issue of if they will continue to insist that an impairment, disability and loss of earnings can be used interchangeably despite the Alberta Court of Appeals decision that using impairment ratings a s a direct method of rating disability is not in compliance with the WCA and we will then have to take this to a Judicial Review based on an error in law. Obviously on Judicial Review, the Court of Queens Bench have no jurisdiction to over ride the decision of the Alberta Court of Appeals in the Penny case and any decision by the C of QB will be in our favor. Unfortunately, I cannot represent the worker due to the Legal Professions Act and the worker who has a grade 8 education will have to represent himself.
If the the Government provided workers though the proposed Fair Practices Office the right to represent workers, workers would not be forced to represent themselves and especially when most injured or disabled workers are blue collar workers who have no idea how to represent themselves before the courts or have any idea what the issues are and how these issues fit into the WCA, WCB policies and workers compensation regulations.
Section 69 of the WCA which is specific to impairment makes the award discretionary. Who gave WCB the right to change the historic agreement which was based on compensation for loss of earnings, not for impairments. Are employers aware that they are paying out millions of dollars to workers who do not have any loss of earnings but have difficulty getting erections, urinating, defecating, reaching an orgasm, combing their hair, brushing their teeth. I may get myself into trouble by suggesting that any award for an impairment should be stopped and employers be reimbursed unless they agreed to WCB providing millions of dollars in life time pension and lump sum payments for an impairment.
Upon review of WCB policy, there is nothing in policy that suggests that impairment ratings can or should be used s a direct method of rating a disability. At first I believed that the problem evolved from the WCB BoD who according to the WCA enact policies but further review resulted in the fact that WCB policy specific to the use of impairment ratings indicated that impairment ratings were to be used as a starting point as suggested by Mr. Carr, WCB legal counsel in the Penny case and agreed to by the Alberta Court of Appeal in assessing a disability. The AMA Guides stress this as being a very crucial point by stating that impairment ratings are a pre-cursor to a disability, not a final assessment of a disability. This is explained under WCB Policy 04-04 Part II Application 5 Question 1 which states in part and read correctly specifies that the first step is to assess an impairment and the second step is to assume whether there is an earning loss. If there is no assumed earning loss a worker receives nothing other than medical care if necessary. If there is an assumed loss of earnings, the assumed loss of earnings is based on each individuals unique circumstances which considers their age, education and prior work experience. The determination of a disability is usually determined by a certified member of the Fellow of the American Academy of Disability Evaluating Physicians who are trained experts in determining disability.
Policies & Information
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1. What is a Permanent Disability Award, and who is eligible for it?
A permanent disability award is a pension which includes
compensation for permanent clinical impairment “and”
assumed permanent loss of earning capacity resulting from
the clinical impairment.
The pension is based on a medical determination of the
extent of the compensable clinical impairment. WCB uses
the WCB-approved rating schedule (see Appendix D) as a
guide to determine the extent to which the compensable
clinical impairment impairs or may impair earning capacity,
and expresses that impairment as a percentage of disability.
WCB policy 04-04 Part II Application 2 Question 6 states in part;
6. How does WCB calculate the Non-Economic Loss Payment?
As the Non-Economic Loss Payment is not intended to
compensate the worker for lost earnings, the payment base
is the same for all workers, regardless of earnings. The
payment is paid as a lump sum, and is based on the degree
of permanent clinical impairment resulting from the
Any one with any intelligence would ask, how could a PCI rating equate to a disability and loss of earnings one second before midnight of Dec. 31, 1994 and then one second after midnight on Jan 1, 1995, a PCI rating equates to NELP which is not intended to compensate the worker for loss earnings. Little wonder no one understands the “Act”, WCB policy and WCB regulations when WCB themselves have no idea of how to interpret their own policies.
Using impairment ratings as a direct method of rating disability results in further complications to the WCA specifically Section 42 of the WCA which presumes total disability with the loss of both feet at or above the ankle. Using logic, if A is equal to B, then B has to be equal to A. Using impairment and disability in place of A and B, if impairment is equal to disability, then disability must be equal to impairment. That being the case,, if a worker is totally disabled, then they have a total impairment.If you have a total impairment, then you are dead as death occurs when all bodily functions cease. A worker with a loss of both feet at or above the ankle is obviously not dead, so it is obvious that they are not totally disabled. Loss of both feet at or above the ankle is assessed 25% PCI rating for each lower extremity equaling a 50% PCI rating. When multiplied by 90% of net, a worker would receive a 50% permanent partial disability and yet according to the section 42 of the WCA the worker is totally disabled which means the worker has a 100% PPD, not a 50% PPD.
This is precisely what happened in the Yukon when the worker (Robbie King) suffered an injury to the head and was determined by WCB as being totally disabled and instead of paying compensation for permanent total disability, the “Board” paid him 70% PPD based on a 70% PCI. The Yukon SCC overturned the decision of the “Board” to pay him a 70% PPD and directed they pay him a total disability rather than a 70% disability pension.
With all of this evidence supporting the fact that a PCI rating does not equate to a disability rating, then why is the Government not directing that WCB comply with the WCA and legal precedence? It also would be fair to question why WCB Medical Services and WCB Legal Services are complicit in defrauding workers who clearly know that you cannot equate an impairment to a disability. WCB medical Services should have all their doctors licenses terminated and as well, WCB Legal Services should have all their lawyers licenses terminated.
There is no other body or individual that are allowed to make a mistake. If any body or individual makes a mistake, we are told that ignorance of the law is not a defense, yet WCB. DRDRB ad the Appeals Commission are allowed by the Government to make a mistake and not be held accountable. If I or any one else, gets drunk and kill or injure some one, we are not allowed to plead that we made a mistake. When workers are given the benefit of doubt in all cases, it is impossible to make a mistake as a person always errors on the side of the individual who is given the benefit of doubt.
Case Managers, DRDRB and the Appeals Commission are supposed to be experts according to the Courts. Experts don’t make mistakes and if a person who is supposed to be an expert makes a mistake, they clearly are not experts. In order to adjudicate a claim, a Case manger has to be an expert in law and medicine, the same for the DRDRB and the Appeals Commission.There are no Case Managers, DRDRB or Appeals Commissioners who are experts in law and medicine and it is far too easy for these people to deny a claim or benefits knowing that workers do not have the knowledge and financial capability to hire a person who is knowledgeable in law and medicine. In the Penny case, the Alberta Court of Appeals stated” Presumably the Appeals Commission have expertise in medicine, because most of the questions before it have a large medical component, and in other fields related to the assessment and valuation of claims”
The problem with the whole system is that no one including WCB, DRDRB or the Appeals Commission have any expertise in medicine and as well as law, the largest component in all claims involves the field of medicine. Because Case Managers, DRDRB and the Appeals Commission have no expertise in medicine, they in turn consult Medical Advisors who are not experts in medicine with many of them not even practicing medicine for decades and still provide medical opinions that date back to their early days of medicine and have since been corrected in medical journals which these doctors have never read.
The courts are not presided over by mechanics, painters, plumbers, brick layers so why would lay people with no expertise in law or medicine be allowed to preside over claims within the workers compensation system. None of this makes any sense at all but the Government continues to place band aids on fixing a system that is terminally ill.
The correct way of fixing the system is to consult with employers and workers and renegotiate a sick system and get back to the original system where workers receive medical care and lifetime earning loss pensions if necessary. If permanently disabled workers cannot return to their former job, train them to perform some meaningful job not simply provide assistance in how to write a resume, make phone calls etc. which is not cost effective at all as being able to write a resume or use proper telephone techniques will not result in a disabled worker getting a job over some one who is not disabled, has the experience and employers could care less whether some one can write up a better resume than another person. Studies in Ontario confirms that their approach in this manner was a waste of time and money.
It is my understanding that the Fair Practices Office will assist workers every step of the way which would include expert representation throughout the appeals process and as well as legal representation in the event of Judicial Appeals and if not, there is little point of having a Fair Practices Office. Question is, what then will happen to the Office of the Appeals Advisor which has never represented workers as an independent body because in reality, they were a part of WCB under WCB Legal Services. In my opinion, the Office of the Appeals Advisor would have to be abolished which is a good thing and would be cost effective, thereby saving employers a significant amount of money.
There is little point in proceeding with any changes until the Government can determine as to who has the burden of proof. Based on the historic agreement, workers and employers have no burden of proof at all in an Inquiry based system but it is evident that some how in the past, the burden of proof was illegally shifted from the “Board” to the worker. Some one in Government has to ensure that the historic agreement is complied with as at this time the system is at present based on civil law (Adversarial system) rather than administrative law that is specific to workers compensation systems.
Rather than claims resulting in an adversarial system which exists now, predictably if the burden of proof both for and against is not dealt with, the courts will be used as a battle ground for WCB/Appeals Commission legal counsel who have customarily represented employers and the Fair Practices legal counsel as it winds it’s way from the Court of Queens Bench, Alberta Appeals Court and the Supreme Court of Canada at no cost to a worker which is a good thing for workers who in the past had to pay lawyers to represent them. Claims could drag on for years although if workers are provided interim relief as proposed, no one really cares how long it takes to reach a conclusion.
In conclusion, anything worth doing has to be done right rather than to make changes without any thought as to how the changes will work out to benefit both workers and employers.
Click on the following link: https://www.workerscompensatio
Obviously the U.S. States that give the victim or their family the OH&S fine for injury or death are to be commended for electing people who are intelligent enough to give the levied fine to the victim or the victim’s family. In Alberta the Alberta Government are benefactors of work place accidents where the levied fine is placed in the General Revenue Fund rather than being given to the victim or the victim’s family who are forced into poverty be having to rely on WCB to provide benefits.
Click on the following link: http://www.nydailynews.com/
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.
This week’s VUE Weekly features an article about our petition in the context of the WCB review. Thank you Ricardo Acuna for writing it. You can read it here:
Also, be sure to check out the petition being tabled in the Legislature by MLA Chris Nielsen at his Facebook video page.
And listen to an interview with CIWAA’s Donna Oberik last week on CBC Radio.
Click on the following link; https://www.thespec.com/opinio
Much of the problems associated with causation could be solved by bringing in legislation that would make it mandatory for all employers to carry private insurance along with workers compensation insurance to protect workers from having any loss of earnings due to a physical or mental injury. As noted in this article, Manulife were providing private insurance to the city workers. Carrying this further, all public servants have full protection for work and non work related injuries, paid for by workers and their families who themselves have no protection other than workers compensation insurance. The Alberta Workers Compensation Board have dual insurance paid for by employers and workers (Sun Life, I believe) so why is it that workers are also not fully protected. If all workers had full protection as have all first responders for example, they would not have to fight for benefits from WCB where causation is the sole and only prerequisite in having a claim accepted. Rather than workers having to fight over the cause of an accident as cause in the medical profession is in most cases unknown due to the fact that medicine is not an exact science, it would be the private insurance company who have deep pockets fighting WCB as to who was going to pay for benefits rather than the poor schmuck who does not have the financial ability or the knowledge to fight WCB.
The fact of the matter is that the workers compensation does not work and has not worked for decades as witnessed by various Royal Commissions that have always found that the system is and always has been against workers. Bringing in legislation to provide dual protection for workers would solve a lot of problems and would be cost effective as many large employers provide dual benefits already such as large companies like Telus, Rogers, Shaw, ATCO, Fortis Alberta to name a few. As a retired AGT and Telus employee, even when Telus began paying for workers compensation most of the employees filed claims through the private insurance company to avoid the hassle of a workers compensation claim.
Points to ponder: Will there be justice? Justice can only happen when old claims denied on paid opinion and the case managers need for a bonus are re-opened . They must be reviewed and the wrongs made right. Laws created with jail time if found guilty of intentionally hurting people for greed.
Notably, the process of deeming came under attack during the WCB Review Panel’s meetings with the various groups. While the process of deeming workers to imaginary jobs is grossly illogical, it becomes even more illogical when a person understands how deeming is used to determine an earning loss such as an ELS or an ELP. Having been taught in grade school that apples must be compared to apples and oranges to oranges, WCB does not do this when it involves earning losses.
I shall explain. If a worker was injured and suffered a permanent disability and permanent work restrictions their pre-injury earnings on their DOA would be used as a reference to determine an earning loss by comparing pre-injury to post-injury earnings which is the correct method. However, when comparing pre-injury to post-injury earnings this must be done by comparing earnings in the year of the DOA. For example if a worker’s pre-injury earnings are $40,000.00 in 19991, an earning loss must be calculated using 1991 dollars either by using actual 1991 earnings or 1991 deemed earnings. You do not determine an earning loss by using 1991 dollars and compare post-injury actual or deemed earnings twenty or thirty years later which is how WCB determines an earning loss. No worker would ever be entitled to an earning loss as evident by the fact that over time with higher earnings over the course of 20 or 30 years later and then comparing the higher earnings to considerably less earnings 20 or 30 years ago. This is grossly illogical and mathematically incorrect as you have to compare apples to apples and oranges to oranges.
Click on the following link: http://www.insurancejournal.co
This scenario of protecting employers from litigation and maintaining low premiums has been going on for decades, all at the expense of workers, their families and tax payers who are left with higher taxes to pay for the shortcomings of a broken system. There are far too many long standing claims that have never been adjudicated correctly and this should be one of the first priorities of the WCB Review Panel to recommend to the Government that Section 157.1 of the Alberta WCA be complied with. Note also that causation is a major factor in all claims and rather than using a lesser standard that civil law, causation is now based on the same legal standards of civil law rather than on common sense and logic that the SCC has determined that should be used. The whole system is a mess, whether it is in Alberta, in Canada or the U.S.