Dec 102018
 

By Gerald

According to the historic agreement, adjudication within the workers compensation system is supposed to be based on an inquiry system, not an adversarial system. At some time in the past, this all changed from an inquiry system to an adversarial system. Rather than a worker being a claimant, they are considered to be the person bringing forth an action as a plaintiff. No one including Notley, Gray, Ganley or the former Conservative Government would explain or define what an inquiry system is based on.

I have had over the last several years, had to argue that the burden of proof is on the Board with Case Managers, DRDRB and the Appeals Commission who are adjudicating claims based on civil law which is clearly the incorrect legal standard in workers compensation.  Yesterday, I talked to a Case Manager who in a case I am representing a worker argued that the burden of proof is on a worker, not the Board. I attempted to explain to her how an inquiry system is supposed to work and she said that has has no idea what an inquiry system is and that all her colleagues place the burden of proof on the worker despite the WCA and WCB policy that clearly places the burden of proof on the Board. I have had that same argument  presented to me by a senior member of the Appeals Commission during a heated discussion at an in person hearing, who is a lawyer and oddly enough makes over $175,000.00 a year as a hearing chair. Her argument was quashed at a Judicial Review by a Court of Queens Bench Judge who had to explain this to the Appeals Commission’s and WCB’s legal counsel how an inquiry system works and how it differs from civil law. 

A number of years ago, I had a letter from a former Minister in charge of WCB who told me that WCB rarely if ever performs any investigations involving a claim because it was to time consuming and expensive thus resulting in numerous claims being denied because WCB did not do their due diligence to perform any investigations and when the claim was illegally denied, the blame for not providing the evidence was placed on the worker who they claim has the burden of proof, not WCB. 

Oddly enough, the Appeals Commission when a worker requests to subpoena a witness or witnesses, the Appeals Commission refers to the Alberta Rules of Court which are rules for civil procedure where a plaintiff who brings an action has to pay for the attendance of witnesses which they should. Why should workers have to pay for the attendance of witnesses when WCB can have witnesses subpoenaed and have the witnesses conduct fees paid out of the accident fund. Questionably is why  WCB Medical Advisors who are the worst offenders when knowingly providing false medical evidence do not have to sign an affidavit to swear that the evidence they are submitting is true and when it is proven to be false, they should be charged and imprisoned.Section 151.1(1) does make it illegal for any one to provide false or misleading information to the Board and that would include their own employees. According to Section 152(1) of the WCA a person can be fined up to a maximum of $25,000.00, a further fine of $10,000.00 a day if the offense continues or in lieu of a fine be imprisoned for a period not exceeding 6 months. Problem is that we have a Justice Minister that would not allow charges against any one in the system, thus negating the WCA. What is the point of enacting laws if these laws are not used to punish people for contravening the law. 

While it cannot be disputed that WCB places the burden of proof on workers, the Appeals Commission also places the burden of proof on the worker. This fact is presented in their rules specific to reconsideration where they do in fact undeniably place the burden of proof on a worker. This is proven by the Appeals Commission stating that “with due diligence, the evidence could have been presented at the previous in person hearing. What evidence could be presented when WCB has exclusive jurisdiction to gather the facts and their own policy directs that they perform a thorough investigation to gather the facts. A good example of this is in a case where a Case Manager lied about the employer offering modified work and the employer and worker both presented evidence that there was no offer of modified work. WCB and the Appeals Commission acknowledged that modified work was never offered but refused to pay the worker the loss of earnings he was entitled to and had been directed by the Court of Queens Bench to pay the worker $9000.00 in earning loss. This was refused by the Appeals Commission who should have complied with the Judge, sent the claim back to WCB and direct that this sum be paid. Instead, Wispinski, the now head of the Appeals Commission represented the Appeals Commission which questions her ethics and sense of decency to represent a body who would defraud a worker from what he was entitled to and his entitlement had been determined by a Judge. The second incident I was involved in and still am is specific to concurrent earnings.  The worker at the time of her injury had two sources of income and WCB did not investigate contrary to the WCA and their own policy. and using only the one income to determine an ELP. Once this was brought to their attention, they denied the second concurrent earnings because they believed that the worker had the burden of proof to provide this evidence. Most, if not all workers have no idea what concurrent earnings are and would not have the knowledge to question WCB as to why only their earnings from the accident was used to determine a loss of earnings. Gathering this evidence is the sole responsibility of WCB, not the worker. These are fundamental questions that WCB must ask a worker during the course of their investigation.  

In reviewing the revised WCA, it appears in the preamble that the purpose of the workers compensation system is to provide appropriate compensation to workers and the central focus of the workers compensation system is the health and well being of workers, this is a lie and is proven to be a lie based on my own personal experience in the workers compensation system. The central focus of all workers compensation system is to protect the accident fund to maintain low premiums for employers to encourage or maintain employment. Accepting claims and benefits destroys jobs and the economy as opposed to denying claims and benefits that increases employment and the economic benefits of low premiums. What was considered the “grand bargain”is not and has not been a grand bargain for workers but has been a grand bargain for employers who cannot be sued and have their premiums subsidized by tax payers who pay taxes and these taxes are used to provide income support for disabled workers through social assistance. As well, Alberta Health Care provides medical care and benefits for disabled workers. No one can deny that this is not true. If it was not true, then then why are there so many disabled workers on social assistance. If a person can name one, one is too many and when naming one, some one else could name other disabled workers who are on social assistance. Why is the Government so secretive about this. Perhaps this would be a request submitted to FOIP. Obviously, the Government knows when a person applies for social services what medical condition they have that is considered to be prolonged and severe and whether the injury or disease is work related or not work related..

If in fact, the Fair Practice Office does determine that the Board has the burden of proof in an inquiry system, the only remedy is to re-adjudicate all long standing claims on the correct legal standard and in compliance with Section 157.1 rather than to continue to believe that the Government and the courts should provide deference to the Appeals Commission when they have been adjudicating claims on the wrong legal standard. While it is not surprising that Case Managers and the DRDRB  would not be expected to understand the difference between an adversarial system and an inquiry system, Appeals Commissioners who earn close to two hundred thousand dollars a year should not be pleading that they were making honest mistakes by using the incorrect legal standard when adjudicating claims.

WCB is sending a message to workers who have long standing claims that to have their claim accepted or to receive any benefits, that a worker must commit suicide, threaten to commit suicide, attempt to commit suicide or threaten to kill WCB employees or Appeals Commissioners. Gregory Jacks committed suicide and WCB apologized to his family and provided compensation to his widow. Another fellow set himself on fire and received compensation. Patrick Clayton threatened to kill WCB employees and was sentenced to prison. When he got out, he received compensation for his work related injuries which indicates that had WCB provided him with compensation he was entitled to, he would have not of had to threaten to kill WCB employees and then be sentenced to prison. I have a copy of one of his checks for fifteen thousand dollars presumably for a NELP as WCB did not explain what the fifteen thousand dollars was for with several hundred thousand dollars still coming in for an ELP. Obviously this should indicate to workers that to receive their entitlements, they have to either commit suicide, threaten to commit suicide, attempt to commit suicide or get a shot gun, take hostages and threaten to kill WCB employees. 

Rather than continue beating my head against a wall arguing with Case Managers, DRDRB and the Appeals Commission, I sent the following letter to the Fair Practice Office who now have to explain what an inquiry system is and who has the burden of proof in an inquiry system.

Fair Practices Office

Braithwaite Boyle Building

602 1701 Centre Street NW

Calgary, Alberta

T2E 7Y2

Dec. 3, 2018

This is a question that needs answering. Workers compensation in Canada is based on an inquiry model, not an adversarial model. There is no one who disagrees that workers compensation is based on an inquiry model, yet there is a reluctance by WCB, DRDRB, Appeals Commission or the Alberta Government to explain how an inquiry system works. The question that seems to be evasive is “who has the burden of proof in an inquiry based system”.

The gold standard for adjudicating claims in Canada is found in Dr. Terrence Ison’s book Workers Compensation in Canada 2nd Edition. According to Dr. Ison who was Canada’s foremost expert on workers compensation systems who is now deceased, he states in his book, “The Acts provide for an inquiry system, not an adversarial system. There is, therefore no burden of proof on any one except the Board. In common law litigation, it is normal to place the burden of proof upon the plaintiff and in medical science, the negative is commonly assumed from the absence of positive data. Neither of these approaches is appropriate to a workers compensation system operating in an inquiry model. The worker, the employer and the attending physician are responsible for supplying information to the Board which is within their power to provide. With regard to any other information that may be required, the obligation rests with the Board to make the necessary inquiries. The absence of any evidence on any point leaves the adjudicator in a neutral position that calls for further inquiry. It is not a ground for any particular conclusion. Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternate cause and evidence that the employment was not contributory”

In the workers compensation system in Canada, adjudication by WCB, DRDRB and the Appeals Commission is therefore not based on the correct legal standard as the burden of proof has been placed on the worker as evidenced by numerous decisions of the Appeals Commission. As noted by the SCC adjudication in workers compensation systems is based on a lesser standard than civil standards, which ranges from a trivial contributory factor to a balance of probabilities. If a claim remains in the neutral state, the benefit of doubt is supposed to go to the worker. Many claims submitted to WCB have unknown etiologies which should result in a neutral state but the claim is denied despite no evidence to the contrary. If in fact it cannot be determined whether an injury or disease arose out of and occurred in the course of employment, WCB must provide an alternate cause as the negative cannot be assumed from the absence of positive evidence.

On Judicial Review where I was allowed to represent a worker, Justice Bruce Millar had to explain to the Appeals Commission Legal Counsel and WCB Legal Counsel that in an inquiry based system the burden of proof is on the Board and not on a worker. This decision is not on Canlli but I have the transcript of the action and Justice Millar’s explanation. This question was also asked to the Office of the Ombudsman and the Ombudsman also verified that in an inquiry system the burden of proof is on the Board.

Section 17(1) of the WCA provides exclusive jurisdiction to the Board to examine, inquire into, hear and determine all matters and questions arising under this Act. Read correctly, only the Board has jurisdiction to gather evidence and it would be contrary to the Act for a worker to gather any evidence which thus would prohibit a worker or an employer from having any burden of proof. Section 17(4.1) also provides direction to adjudicators that when a claim remains in a neutral state, the benefit of doubt goes to the worker. Section 20 of the WCA also gives WCB all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act. Questionably then with absolute and exclusive jurisdiction to gather evidence, how then could the burden of proof be put on a worker or an employer.

Adding to this is WCB Policy 02-01 Part I, it states in part, “When WCB is notified of an accident, it initiates inquiries to obtain all relevant evidence and adjudicates the eligibility of the claim based on the weight of that evidence” Interpretation 4 of the same policy then states “if the information received on the required reports is not sufficient to adjudicate the claim, WCB is responsible for gathering additional evidence relevant to the claim”This then is contradicted in WCB policy 01-03 Interpretation I where they state “A worker is not required to prove beyond any reasonable doubt in support of a claim for compensation” This would indicate that the worker is required to bear the burden of proof which in essence is typical of an adversarial system and not an inquiry system where the burden of proof is on the Board.

Going into this further, it is apparent that the “but for” test and “material contribution” test that is used in civil law is being applied in the lesser standard of proof in the workers compensation system. This can be found in WCB policy 02-01 Part II Application 7. Curiously, when reading this policy, WCB places the civil standard on themselves as having the burden of proof, yet when adjudicating a claim, they place the burden of proof on workers. Even in civil law, the burden of proof is shifted from the plaintiff to the defendant if the defendant is more knowledgeable then the plaintiff. Refer to the SCC decision cited as Snell v. Farrell. This case was also based on precedence cited by McGhee v National Coal Board. Clearly, WCB is the knowledgeable party, has exclusive jurisdiction to gather the facts and yet places the burden of proof on workers with no burden of proof on employers questioning what system are adjudicators using, an inquiry system and a lesser standard of proof, an adversarial civil standard where workers filing a claim are considered plaintiffs without any defendants as employers rarely bother to get involved resulting in WCB representing employers as the defendants. This being said, how then would workers have the burden of proof. This is an extremely important question that has to be answered as the Fair Practice Office has a responsibility to ensure the correct legal standard is being used when adjudicating claims.

Dec 102018
 

By Gerald

Click on the following link: 
https://www.thestar.com/news/gta/2018/12/09/wsib-staffers-decry-chaos-caused-by-broken-system-thats-putting-injured-workers-at-risk.html

Sadly  enough, the system in Alberta has been broken for years and 
questions why the system is not simply abolished as it serves no useful purpose other than to create jobs for doctors who evidently have taken over the system and has become a total disaster. Questionably whether any system can work when the medical profession gets involved and the 
whole adjudication process is based on medical opinions as to causation, work restrictions, impairment ratings, compensation, psychological evaluations.etc. Any body, organization or system that is based on doctors opinions are doomed for failure.  Workers lives are turned upside down by doctors, especially WCB doctors who provide opinions that are totally false and any one with any access to real medical experts or reliable internet medical information can provide a better medical opinion than WCB Medical Advisors who clearly are not medical experts. I have yet to come across a complex claim and I have reviewed hundreds or thousands of claims.

Why ask doctors anything when the Supreme court of Canada has determined that in the workers compensation system, claims should be based on common sense and logic rather than waiting for decades to determine a claim on medical certainty which in the workers compensation system is not required. No one has to spend millions of dollars on medical studies when the Supreme Court of Canada has determined that in all workers compensation systems there only needs to be a trivial probability of a work related cause.

A much better system could be provided by removing causation from the system and simply going to a system where workers are provided compensation without the need for doctors opinions as to what caused the injury or disease. Who cares other than doctors whose livelihoods are maintained through medical piss fights with each other with the worker caught in the middle. Rather than having employers fund the system which is a lie as employers do not have the financial capability of funding the system so the Government subsidizes the system through our tax dollars by having taxpayers provide income support through Social Assistance and Alberta Health Care. To deny this, a person would have to deny motherhood. A much better system could be put into place where 
employers and employees share the cost of premiums with the same agreement where a worker cannot sue the employer or other workers, causation is no longer the deciding factor and every one could get on with their lives with doctors having to work for a living rather than to prey on workers and fill the heads of ignorant Case Managers, DRDRB deadheads and worse yet the apathetic deadhead Appeals Commission who have been given absolute power to destroy peoples lives whose decisions cannot be overturned by the Minister in charge of these retards who in reality are in charge of the Minister.

We elect governments to be innovative, not to carry on with a dead horse that has long been dead but every one is attempting to resuscitate a horse that has been dead so long that all of the body cavities are filled with rot and maggots. We have had numerous investigations over the last 40 to 50 years and none of these investigations have found anything good about the system and attempting to fix the system has been a dismal failure.

Nov 042018
 

By Gerald

There is no denying that the burden of proof in the workers compensation
system is entirely on the “Board” but our Justice Minister like her
predecessors does not want to admit that the adjudication by Case
Managers, DRDRB and the Appeals Commission have been and continuing to
use the wrong legal standard by using civil law or tort law in
adjudicating claims. This was the decision of Justice Bruce Millar who
determined that workers compensation systems in Canada are by law
required to adjudicate claims based on an Inquiry model, not an
Adversarial model which is the the standard used in civil law. Justice
Millar’s decision should have sent a message to WCB and the Appeals
Commission, and set a precedent resulting in all long standing claims
being reheard.

In Justice Millar’s decision, he directed that the Appeals Commission
contact the employer to obtain facts that WCB had failed to investigate
and had led to having to file a Judicial Review. The Appeals Commission
refused to comply and denied the claim for the second time, forcing us
to file for another Judicial Review which was heard by Justice Yamauchi.
Justice Yamauchi should  have upheld the decision of Justice Millar
based on the legal principles of res judicata and issue estoppel as
another Judge cannot by law hear the same case. Questionably is why
Justice Yamauchi did not do what is required in cases that have been
determined already. Notably is that Justice Yamauchi was one of the
Judges who were under review and found by the Alberta Appeals Court to
be lacking in judgement in a sexual assault case, thereby questioning
his decision that led to us  losing a case that we had already won.
Click on the following link:
https://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959.

Oddly enough is that Justice Millar’s decision was not posted on Canlli
with the most logical reason that his decision would have been a damning
condemnation of the appeals process. I suspect that WCB and the Appeals
Commission requested through the Justice Minister’s office that Justice
Millar’s decision not be posted on Canlii. I have the transcripts of the
action we filed and Justice Millar’s decision that went against the
Appeals Commission and WCB. What other reason would there be for not
posting on Canlii.

The corruption surrounding WCB and the Appeals Commission is aided and
abetted by the Alberta Government through not allowing the public to
read decisions that are extremely important to cover up the abuse of
power in a public office.

For clarification as to who has the burden of proof in workers
compensation systems in Canada,I am enclosing Dr. Terence Ison’s
explanation. Dr Ison before his death was a law professor who
specialized in workers compensation law and was recognized as being
Canada’s leading expert in workers compensation.  Click on the following
link and go to page 814 for clarification.

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1620&context=ohljbut
.

Aug 172018
 

By Donna

With title, did he get bought out ?and what is his pension? And did he leave his legacy to continue? The Culture of Denial at WCB. Employers and the public must keep in mind. The WCB review  panel found the case managers readily take the WCB medical consultants and paid WCB paper opinions over the treating medical specialists and medical evidence. We ask what else are the case managers and DRDRB personal suppose to do ? When having 100 percent power over the quality of life and medical care over injured workers when they do not have any medical knowledge or licence to determine an injured workers injuries. Typically taking a paper opinion over treating medical specialists and medical evidence because they don’t understand medicine or don’t trust the injured workers medical specialists. The staff at WCB don’t have to have medical knowledge or trust those operating in Alberta’s medical field. What are the qualifications to become a case manager and DRDRB staff member at WCB ? Has anyone with power asked this very important question? These staff members are given 100 percent power to make life and death altering decisions on an injured workers life? Nurses can’t make these decisions and they were forced to get medical training pay out of their own pocket.  Injured workers children know more and see more of their parents disabilities caused by work injuries then the WCB staff with 100 percent  power to deny sever injuries by accepting the paper opinion and disregarding medical evidence and rejecting treating specialists. But injured workers are welcome to appeal until they are dead broke or dead what ever comes first. Maybe in the future the WCB review panel could request this gets looked into and stopped in order to save life’s and give injured workers children a chance to have a life. Injured workers children work for free nursing their disabled parents work injuries 24 hours a day. This is the next generation to question why is this abuse allowed?

One of Alberta’s highest-paid public servants leaving post at WCB

WSIB Interview

 Our Blog  Comments Off on WSIB Interview
Jan 092017
 

By Gerald,

Click on the following link; http://tvo.org/video/programs/the-agenda-with-steve-paikin/wsib-working-for-injured-worker

I must say that after watching the video I was impressed by the respectful manner by all persons involved. Interesting is that the participants all were concerned with the same problems that plague workers compensation systems throughout Canada and especially in Alberta where workers do not have access to lawyers as lawyers in Alberta want nothing to do with WCB, doctors want nothing to do with WCB, workers do not have access to the minister in charge of the system, do not have access to the President of WCB, do not have access to the WCB BoD or any other high ranking official within WCB. Complaints to the Alberta Ombudsman is useless and as well workers cannot file a human rights complaint nor have they got the financial capability of filing a contravention of the Charter.

The interview begins with talking to Mr. Barreira to put a real face on what is and should be how the WCB Review Panel should be doing rather than how they are handling their mandate at present. Real faces and real scenarios are how the problems that plague the system has to be determined by reviewing actual claims. Most if not all claims involve the same problems which was noted by the participants to be the norm rather than the exceptions. Mr. Barreira is a good example of what happens to disabled workers when they are no longer able to work, the employer does not have modified work of a sedentary nature, the system deems a worker, then terminates the worker and they become the responsibility of tax payers by going on welfare. Question is why is Mr. Barreira on welfare when his disability is work related. If Mr. Barreira is capable of working then he should not be on welfare. If one agency determines that Mr. Barreira is capable of working (WSIB) and another agency (Welfare) determining that he cannot work, the reason given by the Alberta Appeals Commission in their decisions on Canlii is that both agencies come under different legislation. Common sense and logic would be that the Government enact legislation that will apply to both agencies or bodies. How can a person be totally disabled and accepted on welfare and able to perform gainful work by workers compensation at the same time? This also applies to CPP disability. How can one body determine total disability and another body determine that a person is capable of working. Do we live on the same planet or is it that we elect imbeciles to Government that are as stupid as the people in the WSIB who decide that a disabled worker can perform gainful work and other stupid people in Social Services determining that the person is not capable of gainful work. People argue over how many people are on welfare with work related injuries. Does it really matter whether there is one person or if there is 20,000 or more on welfare. If there is only one person on welfare, then there must be a full inquiry as to why they are on welfare if they are capable of gainful work.

In Mr. Barreira’s case, I suspect that his claim was terminated because of deeming. Most likely he was deemed as a call center employee, a Walmart greeter, parking lot attendant or a dispatcher. The other 18,320 disabled workers most likely were also deemed in the same occupations as Mr. Barreira which questions how many parking lots are in Ontario, how many call center positions there are, how may Walmart there are, or dispatchers required. Each of the positions I have provided would most likely require a 40 hour work week. If a person was to do the math, it is most likely that there would be more than 100 workers for each 8 hour shift. As the provincial governments have allowed workers compensation system to determine earning losses based on imaginary jobs that don’t exist rather than actual jobs and actual earnings, workers who are totally disabled are forced to go on welfare and is the reason why tax payers are funding the system.

According to statistical information provided, in Ontario, each year there are approx. 229,000 claims and 92% of the claims are accepted and the workers all go back to their former jobs. Multiplying 229,000 times 8% results in 18,320 workers who do not return to their jobs because of the severity of their injuries. That is an astronomical amount of workers who no longer are capable of returning to their former jobs and is an astronomical amount of individuals who then turn to welfare to support them and their families. If each of the 18,320 workers are on welfare, tax payers are then paying out  on a monthly basis $!8,320,000  a month to support these workers which is an astronomical amount of money tax payers are paying to subsidize employers and why studies have shown that tax payers subsidize employer premiums by what has been reported as being 80% when medical care has been factored in. No one can tell me that the provincial governments do not know that this is true. Mr. Teahen (president of WSIB)  is correct when he suggests that WSIB does not do a very good job of caring for the 8% of workers who fall through the cracks. Studies have shown that the 8% of disabled workers cost more to the system then the total amount of the 93% who return to work. Mr. Teahen’s understanding of a 93% success rate where he suggests that 93% of the workers are employed in actual jobs after 12 months is questionable and rebutted by Mr. Newbury, Mr. Newhouse and Ms. Yachnin who suggest that if a follow up was done after 6 months, that 93% figure would have diminished significantly.

Mr. Teahen refers to the unfunded liability that consumes one dollar for every premium cost. The unfunded liability is compensation that should have been paid to workers but was illegally with held. I say illegally because by law, workers are supposed to be given the greatest of latitudes and receive the benefit of doubt when a claim remains in the neutral state. In Alberta workers never receive the benefit of doubt when a cause is unknown. The benefit of doubt goes to WCB and is why there is an unfunded liability as every one knows or should know that in nearly all claims there is a very strong link to the work environment. One of the concerns of employers a hundred years ago was that the employers of today would be paying compensation to workers whose injuries or disease occurred decades earlier and their concerns were legitimate. In Ontario and B.C the majority of the unfunded liability is based on asbestosis, mesothelioma and silicosis and had workers been given the greatest of latitudes and the benefit of doubt decades ago, other more recent workers diagnosed with these diseases would not have been exposed to these deadly substances. In fact prior to asbestos being determined to be a dangerous substance, Boeing knew ten years prior and the Government and Boeing covered it up. The same coverup is at present in South Korea between the South Korean Government and Samsung. 

I agree with Mr. Teahen that the 8% of claims that run into difficulty are the ones that have to be rectified and review each claim in it’s entirety to determine what went wrong as no one should care about the 93% of the workers who returned to work with no complications. To rectify the 8% of the claims that were not rectified and remain unresolved, in Alberta we have to rehear those claims to determine what happened.

Mr. Teahen also admitted that Case Managers did not have any medical expertise and relied on “Board” doctors to provide medical information. While this may work in theory, it does not work in practice as most if not all Medical Advisors are not experts and are not qualified or certified to provide medical information and Case Managers are not qualified to determine whether the medical information is in fact based on accepted medical and approved information which in my experience over the last 24 years has happened not just occasionally but has happened in all cases. I say this because I can prove everything I say. While some people may consider this to be humorous, I find no humor in the fact that doctors performing IME’s do not know how to measure leg lengths. To determine leg lengths, you measure from the illiac crest to the medial malleolus, not from the crotch to the medial maleolus. Measuring leg length for a pair of pants is different than measuring leg discrepancies medically. It took 43 years and numerous specialists (Neurosurgeons, Orthopedic Surgeons) to admit that the worker I represent had a 3 inch discrepancy between the left leg and right leg (determined by a Physiatrist) once they realized that leg length is not determined by measuring from the crotch to the ankle. Wrong diagnosis has also been a major problem as witnessed by the fact that a diagnosis of idiopathic micro fractures of bone cannot be diagnosed if micro fractures are seen on imaging as the cause of the death of bone is because of the micro fractures interrupting the blood supply and is not idiopathic or unknown. Worse yet is when it takes 7 years to have to fight with WCB Medical Consultants, the DRDRB and the Appeals Commission and as well as the head of WCB Medical Services (Dr. Lauber) over how to use the AMA Guides in assessing impairment and then have the American Medical Association, the most powerful organization in the world supporting me and forcing Dr. Lauber and his cronies to admit that I was right and they were wrong. The Appeals Commission refused to admit that their decision to deny benefits based on the WCB Medical Consultant’s medical opinion was wrong and when I asked for a reconsideration based on the new evidence provided by the AMA’s Medical Experts, they determined that with due diligence the evidence could have and should have been provided at the first in person appeals commission hearing and denied the request for reconsideration. How in the name of hell could have I presented the evidence form the AMA when it took me 7 years to have this information provided to me. Furthermore it is not up to a worker to gather any evidence as the burden of proof is entirely on the “Board” who have through legislation the exclusive right to gather evidence and had the Case Manager took a balanced approach and contacted the AMA which I was forced to do rather than to take the medical opinion of an uncertified and unqualified WCB Medical Advisor, this evidence would have been available at the first in person Appeals Commission hearing.

Determining who has the burden of proof is the most important and crucial part of the adjudication process and the WCB Review Panel must have this determined, otherwise the review becomes totally useless as the same problems that plagued the system before will continue to plague the system in the future. Should workers assume that everything they read is a lie and that Canada’s foremost expert on workers compensation administrative law (Dr. Terence Ison now deceased) was a fake and a liar when he states in his book “Workers compensation in Canada 2nd Edition” that the workers compensation system in Canada is based on an Inquiry system and the entire burden of proof both for and against is on the “Board” thereby making him a liar and a fraud. The WCB Review Board must establish when the workers compensation went from an Inquiry system to an Adversarial system and the burden of proof went from the “Board” to the worker and employer.

Workers also have to know that the statute of limitations only applies if a claim is appealed. There is no statute of limitation if a decision made by the DRDRB is not appealed as it stays at the level of the DRDRB and remains in their jurisdiction. The worst thing a worker can do is to appeal a decision of the DRDRB to the Appeals Commission because if a worker appeals to the Appeals Commission and the appeal is denied, if new evidence does become available, chances of a reconsideration by the Appeals Commission are slim and none. The Appeals Commission will not in most cases reconsider their original decision because they do not want to admit that they were wrong, whereas if a decision made by the DRDRB is in error because of a false or incorrect medical opinion, the DRDRB will in most cases accept new evidence and will reverse their decision when it is apparent that the new evidence supports a worker. One of the major problems with the whole process and system began in 1988 when the Alberta Government brought in the Appeals Commission and gave them absolute power which included absolute power over the courts who by law cannot overturn an Appeals Commission’s  decision based on pure fact even if the court has to hold their noses and provide deference to lay persons who do not have a clue what they are doing.

Despite the fact that new evidence is significant and substantial, the Appeals Commission through their rules of procedure will in most cases deny a reconsideration by using their rules of procedure which allows them to deny a reconsideration with their reasoning that with due diligence, the evidence could have been presented at the original Appeals Commission hearing which then should not question why I continue to dwell on as to who has the burden of proof, WCB who by legislation has the exclusive power to investigate and gather the facts or the worker who does not have any powers of investigation, does not have the financial capability to pay medical experts to review their claims, thus leaving workers in the impossible task of having fair adjudication of their claims. In reality, there should never be any new evidence at any time as if WCB had performed a thorough investigation, there would be no new evidence. If Case Managers were medical experts, they would know when a WCB Medical Advisor’s medical opinion was not based on accepted medical fact, they would seek a second opinion from better qualified doctors rather than blindly accept a medical opinion from WCB Medical Advisors who have never opened up a medical text book in 20 years or more or do not have an active medical practice. Does this happen? It happens nearly all the time and is the reason why it is rare to have two doctors agree on anything and why most people will or should seek a second or third medical opinion.

The Alberta WCB has to be the most backward system in the entire world as witnessed by the use of antiquated impairment guides such as the Alberta Guides, no mandatory procedures specific to the modified work program, illegally placing the burden of proof on a worker and through legislation providing exclusive jurisdiction to WCB to investigate and gather the facts. The Alberta Guides to impairment do not complement the AMA Guides as a person cannot defer to the AMA Guides when the Alberta Guides are silent or deficient as the impairment ratings differ and are not based on the same reference levels. The burden of proof is illegally placed on workers despite the fact that in an inquiry based system the burden of proof is supposed to be entirely on the “Board” which is part of the historic agreement. The Alberta WCB modified work program is a disaster as there is no mandatory procedures in place to ensure that workers are in fact offered modified work by an employer, the Case Manager can provide an offer of modified work without the consent of the employer, the worker’s primary care doctor’s medical refusal to allow the worker to perform modified work can be contradicted by the Case Manager. After ten years of fighting through the appeals process and two different Judicial Review and Appeals, it was determined by the Appeals Commission that there need not be any offer of modified work from an employer, there need not be any modified work description and the claim can be terminated. A letter from myself to the WCB BoD resulted in a refusal to provide mandatory modified work procedures to avoid the illegal acts of Case Manager’s who provide false evidence on a claim. Rather than fix the problems of the modified work program, the WCB BoD has refused to do anything to ensure that the modified work program procedures are mandatory rather than recommended procedures. This leaves the worker with only one option and that is to sue the Appeals Commission and WCB to recover compensation that is supposed to be guaranteed which I will be doing in the next few months with the expectation that the court will rule in the workers favor as both WCB and the Appeals Commission have acknowledged that the employer did not at any time provide any offer of modified work, that the offer of modified work came from the Case Manager who fabricated the offer and the burden of proof was on the worker to provide this evidence. Documentary evidence supports the fact that the employer and worker never had any contact after the date of accident thereby supporting the fact that the Case Manager lied.

While this may sound arrogant, conceited and bragging without the WCB Review Body contacting me and asking for my assistance, the review will result in a dead end with nothing accomplished. There are very few people who receive information on a daily basis specific to workers compensation issues, decisions and legal precedence from around the world which allows me to compare the good and the bad of all workers compensation systems and allows me to make recommendations on how to make the Alberta system the best system in the world. I also have a network of workers from across Canada that contact me to advise me of workers compensation issues in their province that has a ripple affect that affects the Alberta workers compensation system. I also review decisions made by the Alberta Appeals Commission on Canlii and compare those decisions with WCAT decisions in other provinces. Without knowing or comparing how other worker compensation systems operate, there is no way of knowing what the problems are in the Alberta system and how to rectify these problems. As well as workers compensation issues from around the world, I also receive medical updates and information from reputable sources such as John Hopkins, Medline etc. on a daily basis which results in me knowing before most doctors new developments in medicine. As many workers across Canada know, I was one of the advisors to Justice Friedman when he reviewed the appeals process and concluded that the appeals process does not work and there is a culture of denial. My advice at this time is fix the system or simply abolish it as it serves no useful purpose, other than to give the illusion that when a worker is injured, they will be looked after. Once a claim is filed, a worker is guaranteed of having their lives become a living hell which is the norm rather than the exception and especially for workers who suffer injuries that result in permanent loss of function. 

Aug 272012
 

Click on the following link;

http://www.canlii.org/en/ab/abwcac/doc/2005/2005canlii76584/2005canlii76584.html

Scroll down to Para.53 specific to the claim for depression and continuing though to Para 61. The Appeals Commision decision was that the stress associated with her contact with the WCB regarding her claim is reasonable and expected when dealing with disability and an insurer. This decision basically destroys any credibility WCB has when attempting to portray themselves as having compassion, making decisions that are fair and unbiased and treating workers with respect and dignity. WCB spends tens of thousands of dollars on advertisements presenting an image of caring for workers and this is how the Appeals Commision views the WCB.

Click on the following link specific to WCB’s Statement of rights http://www.wcb.ab.ca/public/policy/manual/statements_rights.asp which in reality is nothing but propaganda and lies and even more so when they cannot convince even the morons in the AC that they are different than private insurance companies.

The majority of people who deal with private insurance companies specific to disability insurance are treated much better than workers who unfortunately find themselves under the complete control of WCB. Private disability insurance is guaranteed and a person does not have to prove causation. A person receives disability benefits within a few days or a week at most unlike WCB disability insurance that in numerous cases is never paid despite overwhelming evidence of a work related cause. It is not unusual to have WCB claims that go back 40 years or more. Workers who come under the umbrella of WCB and have their claims denied either commit suicide or commit acts of violence against WCB whereas I have never heard of a person attempting to kill a private insurer or committing suicide because their claim or benefits have been denied by a private insurer.

Major depressive disorders that are assessed using the DSM manual are a common occurrence for workers who submit claims to WCB and rather than assisting workers to become employable, WCB are responsible for the mental and emotional medical conditions suffered by workers because of the way they are treated by Case Managers, DRDRB and the AC and supported by the Alberta Government who have forced workers into a system that does not work and never has worked, all due to a culture of denial that the Alberta Government has simply turned a blind eye to and refuse to do anything to make the system completely transparent and accountable. We elect people to represent us in what is supposed to be a democracy but falls far short of justice for workers because of the contempt the Government has for workers in this province.

 

Gerry Miller