Unfortunately, in Alberta we do not have the choice to vote in people with integrity who would enact laws to fine doctors who provide false medical opinions and decision makers who unnecessarily delay claims.
Unfortunately, in Alberta we do not have the choice to vote in people with integrity who would enact laws to fine doctors who provide false medical opinions and decision makers who unnecessarily delay claims.
My last post specific to burden of proof has gained a lot of interest
and requires further explanation. Even in civil cases, a plaintiff does
not always bear the burden of proof. It depends on who you are suing. If
you sue a member of the general public who is not considered to be
knowledgeable, you have the burden of proof. If you sue a person who has
more knowledge than you, the burden of proof shifts from you to the
knowledgeable person. This was determined by the SCC in a case cited as
Snell v Farrel. When filing a claim with WCB, they are the
knowledgeable party and by law, they have the burden of proof even if
civil standards are used in adjudication. At no time does a worker of
employer have any burden of proof, it is always on the supposedly
neutral party and that means that the burden of proof is on WCB, DRDRB
and the Appeals Commission. Before becoming an Appeals Commissioner, I
would think that all AC should have to pass the basic criteria of
administrative law that is specific to the workers compensation system
and the Meredith Principles. I suspect that all Appeals Commissioners
are not selected for their expertise in law, medicine and common sense
but for their political associations as most or all of them are dumber
than a door nail.
Most workers do not know that they can request an in person hearing at
the Case Managers level. Case Managers have the same powers as the Court
of Queens Bench and a worker has the right to request a notice to attend
and have the Case Manager subpoena a doctor or doctors who are involved
in a piss fight on conflicting medical opinions. You do not by law need
to wait to subpoena witnesses at the Appeals Commission level. In many
cases workers spend a piss pot full of money to pay lawyers and
advocates to represent who pass themselves off as experts when they know
diddly squat about the system. I am seriously considering even at my age
representing workers on a strictly contingency basis with no retainer
and no costs to the worker which I have been requested to do by workers
and for that matter also employers who are paying into a system that is
totally corrupt as evidenced by employers paying life time pensions to
workers who did not have any loss of earnings which can be easily proven.
Video by Doug Brinkman:
Click on the following link: http://www.cbc.ca/news/canada/
Just as I predicted, sometime in the near future, providing presumptive status for any occupation rather than all occupations is discrimination and would come back and bite the goofs that voted for and passed legislation for firefighters, then extended this presumption to first responders. There is and never has been any evidence that firefighters or first responders have any higher risk than any other occupation when compared to the general public which is how epidemiological evidence is gathered and is why the National Academy of Science does not or will not use the general public as a reference in determining causation.
Seems like Ontario always has to lead the way as the people we elect to represent us in Alberta must have fallen off a turnip truck. While I am a born and raised in Alberta resident, my question to the Government is why is it that Alberta is not leading the way in workers compensation issues rather than being the follower even going so far as to adopt the Meredith Principles which initiated in Ontario. Perhaps, the Alberta Government would simply rescind all legislation providing differential treatment to one group of workers and bring in legislation providing presumptive status in all claims for all workers and force WCB to prove contrary which is the way that it was intended to be right from the beginning according to Dr. Terrance Ison who before his death was Canada’s leading expert in workers compensation issues.
One of CIWAA’S goals is to have the provincial government re-open all WCB claims that were rejected due to an opinion by an independent medical consultant. We are in the process of gathering information and would like to hear from anyone whose claim was rejected because of an opinion by an independent medical consultant.
Carol will respond to all emails on behalf of CIWAA. Your information will be very useful to us as we work together to change WCB laws for the better. Please state if it can be shared with others.
If you feel you were unfairly assessed by a doctor, you can complain to their College. For a medical doctor, the complaint must be sent to the College of Physicians and Surgeons of Alberta (ACPSA). For a psychologist, the complaint must be sent to the College of Alberta Psychologists. Below is their contact information and link to the complaint page of their website. If you would like assistance completing these forms, please contact us.
1) College of Physicians and Surgeons of Alberta (ACPSA.)
2700 – 10020 100 Street NW
Edmonton, AB T5J 0N3 Canada
2) College of Alberta Psychologists
Yesterday I sent out an e-mail specific to the Appeals Commission denying requests to subpoena doctors and payment of conduct money. Interesting enough the Court of Queens Bench determined that the Appeals Commission cannot simply deny the request and especially when there is a difference of medical opinion and cross examination is required https://www.canlii.org/en/ab/a
The Appeals Commission appealed the decision of the Court of Queens Bench to the Alberta Court of Appeals who upheld the decision of the Court of Queens Bench https://www.canlii.org/en/ab/a
Question is what makes these pathetic people believe that they can make their own rules that contradict and disregard decisions of Alberta’s highest court. One of the reasons why subpoenaing of doctors is necessary is that the system runs entirely on documentary evidence which for the most part is based on false and misleading medical opinions which are then reviewed by lay people with no expertise in medicine. Without any expertise in medicine and without cross examination how then can any Adjudicator determine which doctor or doctors are correct. This is impossible. Whether it is civil law or criminal law, without cross examination, the whole system would fail if documentary evidence was the only method used.
The next question if in fact the Appeals commission does subpoena doctors, who pays their conduct money. The conduct money must be paid out of the accident fund to ensure that all workers are given a fair hearing. The Alberta Rules of Court do not apply as I have explained before as an in person hearing is not a trial, it is a hearing as the rules of civil procedure do not apply in administrative law.
According to the WCA, WCB provides insurance but do not fall under the Insurance Act which means that WCB is the only unregulated business in the province of Alberta who can do as they want as without regulation they have absolute power to do whatever they want. Unfortunately, the Minster in charge of the system is not in charge of anything but collects her extra pay because she is a Minister who is in charge of nothing.
Despite the decision of the SCC in the Martin case, the Alberta WCB still remains one of the few provinces that do not recognize chronic pain. The Government has not enacted regulations to provide PCI ratings for chronic pain, thus denying workers from benefits that are based on chronic pain.
A class action lawsuit in Ontario against WSIB based on misfeasance in public office was settled out of court. The specifics of the class action based on misfeasance in public office was that WSIB were subtracting PCI ratings assessed on pre-existing conditions from a whole person PCI rating resulting in a reduced PCI rating. This is referred to as apportioning. This involved ignoring the thin skull rule of law which means that worker is taken or hired as the employer finds them. The Alberta WCB uses Policy 03-02 Part II Application 1 Question 5 to illegally apportion PCI ratings to reduce a PCI rating resulting in reduced pensions and benefits. Surely, they cannot say this is an honest mistake as any fool knows that the thin skull rule applies in law.
Question is why would the NDP government select and pay three people ( WCB Review Panel)to investigate and make recommendations when they were not qualified. The CIWAA along with long term claim workers would have done this for nothing and in a matter of a few weeks that would have resulted in meaningful changes to the WCA, WCB Policies and WC Regulations.
When I was an Advisor to Justice Friedman, one of my recommendations was to make Appeals Commission decisions totally transparent. My reasoning was that I could track doctors, Case Managers, DRDRB on Canlii simply by inputting their names in the document box and every claim involving these people would come up which is a very valuable tool to determine which doctors were providing contrary medical evidence.which DRDRB members were biased, which Case managers were biased. Questionably if in fact that because of FOIP, as I was told they could not do this. That being the case then why is it allowed in the courts when researching Canlii, the courts name the worker, the doctors which allows me to check out the doctors as to their medical opinions.I also can if the name of the worker was placed on Canlii, I could contact them if in fact I felt that the Appeals Commission had made an error in law, error on fact, error in jurisdiction etc and explain to a worker how to appeal, request a reconsideration or file for a Judicial Review/Appeal. Being that the names of the Appeals Commissioners can be found on Canlii, I can determine which Appeals Commissioners are biased, are clueless and which are not. The system cannot continue to operate in a vacuum and must meet the public’s expectation of a totally transparent system with nothing to hide.
For example: I can look up Dr. Addington (Psychiatrist) to determine his dossier. Dr. Addington was hired by WCB to conduct a psychiatric evaluation of a worker I represented. From his report specific to the worker I represented and comparing his track record in the courts, I can conclude that he is a good honest doctor. Another doctor who a person can look up is Dr. Louw whose name comes up in Canlii which may interest some people. In fact a case cited as Louw v. Hamelin-Chandler found on Canlii is very interesting. Dr. Louw was a doctor who provided a false and misleading IME on a worker that was contradicted by other doctors. Another doctor that may be of interest is Dr. Darlington who if you enter his name in the document text will provide information. Dr. Plageman can also be found who was one of the defendants who was involved in a lawsuit by the Munros.
While the NDP Government continue to ignore the requests of workers who have long standing claims that have never been resolved even though the evidence suggests that the decisions made by Adjudicators was incorrect, resulting in claims and benefits being illegally denied and some workers committing suicide, having psychiatric problems causing marital and family breakups, tossed onto the garbage pile where they spend the rest of their life. I do not blame the NDP Government as they inherited the problems the former Conservative Government created. To show Albertan’s that the NDP have a conscience, they should honor the Conservative Governments promise to open up long standing claims by complying with Section 157.1 of the WCA regardless of the costs to rehear claims.
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
All rights reserved
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.
“Deutscher most recently worked in Edmonton as a medical consultant with the Alberta Workers’ Compensation Board (WCB), where his name is among the 10 highest earners on the 2015 compensation disclosure list.”
Many people wonder as to why workers are forced back to work on the opinion of a “Board” doctor as opposed to a workers primary care doctor which happens all the time. Here is the answer. WCB Medical services provided all doctors with what were called medical duration guides which quite simply was the average length of time it should take for a full recovery from a work related accident. WCB Medical Advisors who never examine a worker would use these guides to determine when the worker should make a full recovery. As any one who is familiar with medicine knows, some people recover much earlier than others and some may recover much later or not at all. A WCB Medical Advisor would be asked by the Case Manager if the worker has recovered from an accident or illness and the WCB Medical Advisor would go to the duration guides and determine that the worker should have fully recovered despite the primary care doctor who has a duty of care to the worker and will not sign the WCB form indicating the worker can return to work. The worker is told that the WCB Medical Advisor has determined that the worker has recovered and they must return to work or have their benefits terminated. This evidently happened to Patrick Clayton who injured his knee and was sent back to work based on medical duration guides.
The Alberta WCB redesigned their web site and in doing so like everything else that could incriminate them decided to eliminate any trace of the medical duration guidelines. I have searched for these guides and unless I have missed them, they are gone which is a good thing for workers now but evidently was not a good thing for workers who were forced to return to work and re-injured themselves more severely than the original injury.
Determining causation to have a claim accepted is and has to be the stupidest condition of disability insurance. One hundred years ago causation involved only a half dozen causes and primarily physical causes and a hundred years later we have thousands of causes, both physical, mental and diseases caused by thousands of toxins int the work environment and outside of the work environment. Other than guess as to how or what level these toxins are within safe limits, no one knows what levels are safe or when there are a mixture of toxins, what the risks are. In reality, the system has become a money making scheme for doctors to guess what the cause may be because medical science lags far behind what is considered to be medical certainty. Workers face a quagmire of unsupported medical opinions that rarely result in established fact resulting in extreme costs to the system for unsupported medical opinions and is why WCB systems have reserves for unfunded liabilities to pay benefits to workers whose claims were illegally denied because the medical opinions were not valid. If in fact medicine was an exact science, there also would be no need to have reserves for unfunded liabilities.
When doctors provide medical opinions that are found to be invalid, there should be consequences with suspensions of their licenses, incarceration, or fines. The same should apply to Adjudicators who use unsupported medical opinions to illegally deny claims. The whole reason why workers are supposed to receive the benefit of doubt is to avoid any mistakes and when there is a difference in medical opinions, the benefit of doubt should be used rather than to beat a dead horse by having more doctors involved who provide more unsupported medical opinions. A system that was supposed to be for workers is under total control of doctors who determine the duration of injuries or diseases and send workers back to work before they have fully recovered, doctors determine work restrictions. Doctors determine whether a worker can perform sedentary work, light work, heavy work. Doctors determine whether a worker has chronic pain or whether workers are malingering. Doctors determine whether a worker has a psychological diagnosis or if they are faking. Doctors perform functional capacity evaluations that result in severe permanent injuries by forcing workers to perform activities they are not capable of performing. ( A doctor performing a FCE forcefully rotated the neck of a worker I am representing during an FCE and x-rays performed after the forceful manipulation of the neck determined the reason why the worker could not rotate his neck is that the worker had severe cervical spine problems) In actuality the medical costs of all workers compensation systems cost more than the benefits workers receive. Obviously the system has changed over the last hundred years and rather than change the system a hundred years later, the government continues to provide band aids to an ugly and gaping wound.
Lay people especially Adjudicators have this idea that doctors are experts in causation which they are not. Most doctors or all doctors receive their information from medical journals and text books rather than performing any studies of their own. What they read in these medical text books or journal is in many cases not true for the simple reason that there have been many incidences of ghost writers who write medical information in these text books and journals which are not based on any scientific studies or the medical information is written by writers employed by pharmaceutical companies and companies providing toxic materials to retailers who sell this toxic material to consumers. If a person can read and has access to medical libraries, the same information that these so called experts is available in all medical libraries and if a person does go to a medical library which I have done on numerous occasions, you will find doctors researching the same material as a lay person. I have read thousands of pages of medical literature that I was able to read with no difficulty at all in the Foothills Hospital Medical Library where in numerous cases the text books were outdated and had never been revised.
How many people are aware that pharmaceutical companies pay doctors millions of dollars to have their patients act as guinea pigs for new pharmaceutical products that have never been thoroughly tested. Doctors receive new cars, swimming pools, houses etc. to prescribe new prescription medications to unsuspecting patients who take these medications and become deathly ill or die. Take for example Bayers who introduced Baycol as a cheaper cholesterol lowering medication that when taken with gemfibrozil resulting in numerous deaths before it was pulled by the FDA but not before 31 deaths were reported. As with all statins, there is a risk of rhabdomyolysis which can lead to kidney failure and muscle wasting. This is only the tip of the ice burg as no one knows the cause of the interaction between any drug or toxin. Although many toxins when used by themselves pose relatively little danger, when mixed with something else becomes deadly. Mix bleach and ammonia and then get ready to call an ambulance. Take any statin with grapefruit and chances are you also would be faced with a risk of dying.
There are solutions to this hundred year old problem and that is to provide workers in the private sector the same dual disability insurance as workers in the public sector have such as fire fighters, police, paramedics as well as all other public servants by making all employers carry dual disability insurance so that if a claim is not work related, then a worker is not left to fend for themselves. This could be on a cost shared basis just as it is in the public sector. The other option is to abolish the antiquated workers compensation system and make it mandatory that all workers be provide disability insurance without any conditions such as proving causation which in most cases is impossible as no one knows what causes any medical condition as genetics always play the biggest role in all medical conditions whether psychological or physical. WCB could continue to provide disability benefits for all workers. This could also be on a cost sharing agreement between employers and workers thereby eliminating paying millions of dollars to doctors for unsupported opinions and also significantly reducing the number of employees in the workers compensation system and as well reducing costs to employers.
I must admit that I always had difficulty as to how presumption is supposed to work in all workers compensation systems and in review of workers compensation systems across Canada, I finally have figured that out by reading various decisions from WCAT and especially those that use Dr. Terence Ison’s book “Workers Compensation in Canada 2nd Edition”. It seems that New Brunswick is one of the only provinces in Canada that relies on Dr. Ison’s explanation of how presumption works. All claims begin in a neutral state and some one has the burden of proof but no one knows whether it is the “Board” as suggested by Dr. Ison or the worker. Whoever has the burden of proof in determining causation must trigger the presumption by determining on a de-minimus standard meaning that to support causation, there only has to be a very trivial relation to the work environment. This then triggers the presumption that then has to be contradicted by some one, either the “Board” or the employer which again is unknown who then has to prove that the injury or disease arose outside of the work environment by specifying the risk outside of the workplace along with the time and place. According to WCAT decision derived from Dr. Ison’s book as a legal guide, it is illegal to provide a negative opinion without supporting evidence that would provide the risk factor and the time and place the accident occurred outside of the workplace. All of this makes sense when explained by well trained WCAT members in workers compensation law using Dr. Ison’s explanation of how presumption is triggered. Unfortunately in Alberta there are no well trained Adjudicators as witnessed by the number of claims that are denied as opposed to the number in New Brunswick that have been over turned by the New Brunswick WCAT because the the de-minimus standard was successful and there was no evidence to the contrary. Obviously something is rotten in Alberta when claims are denied without knowing who has the burden of proof, what is considered to be de-minimus and if successful triggers the presumption, who then must prove contrary and what evidence is required to prove contrary. While there are numerous decisions supporting my interpretation, rather than citing a two or three hundred WCAT decisions, if you go to Canlii and click on the following links http://www.canlii.org/en/nb/nb
After review of 103 decisions made by the New Brunswick WCAT by inputting Dr. Terence Ison in the document text area on Canlii, I received 103 decisions specific to my search specific to Dr. Terence Ison as my search criteria. Out of the 103 decisions there were 88 appeals accepted and 15 denied which I have reviewed and agreed with the decisions. The number of appeals accepted results in an acceptance rate of approximately 85% as compared to the Alberta Appeals Commission acceptance rate of appeals that is considerably lower than 50% which I suspect is due to the fact that the Alberta Appeals Commission do not understand how presumption is defined by the courts. Both the New Brunswick WCA Section 7 and the Alberta WCA Act Section 24 (4) are identical so how then can two different Appeals Tribunals interpret the “Acts” differently I will be reviewing other WCAT decisions in other provinces as to how they interpret their presumptive legislation and will send my review to all my e-mail contacts.