Oct 262017
 

By Gerry

Click on the following link; https://www.thespec.com/opinion-story/7682409-dreschel-fighting-depression-and-stigma-at-city-hall/

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.

Oct 042017
 

By Gerald

I have reviewed the submissions presented to the WCB Review Panel by the numerous parties such as Adorn Consulting, Alberta Construction Association, Alberta Federation of Labor, various unions, Friends of Medicare, Canadian Federation of Independent Businesses to name a few who offer their concerns and recommendations but the concerns and recommendations fall far short of what the primary problems are. Organizations that provided any meaningful and useful input into the problems that workers have when filing a claim with WCB are the Canadian Injured Workers Association of Alberta, who had the benefit of having thousands of worker’s input into how the system failed them. Other organizations especially AUPE, Worker Advocates, Friends of Medicare and Unions representing Alberta unions also provided useful input and recommendations. The firefighters concern and recommendations are based on selfishness as all they are concerned with is how their claims are adjudicated and have no concern as to how other more vulnerable workers claims are adjudicated. Other workers do not have the luxury of having dual disability insurance, both private and WCB disability insurance and if WCB denies their claim, private disability insurance accepts their claim and provides short term or long term disability benefits without having to fight for decades to have a claim accepted and benefits provided. 

The least useful and predictably so is the input from employers who gullibly believe that the system provides a fair method of adjudicating claims with no concerns as to how WCB, DRDRB and the the Appeals Commission are performing their jobs. Of course if employers premiums are the lowest in Canada and they receive billions of dollars in rebates, why then would a person complain. Employers have no idea what goes on during the appeals process as for the most part it is rare for an employer to get involved in the appeals process as they are adequately represented by WCB and the Appeals Commission with the WCB being an employer( member of the Alberta Chamber of Commerce) who pays premiums to themselves and the Appeals Commission who are selected by the Alberta Government who also are employers paying premiums to an arms length Government monopoly. In effect workers are left on their own to fight WCB and the Appeals Commission rather than an employer and have the impossible task of fighting two employer represented bodies with unlimited powers, unlimited financial power to buy medical opinions and control the court process if workers are able to take their claims to the courts. Unfortunately, the courts also do not have the power to overturn a decision based on fact and forced by legislation to defer to the decision of the Appeals Commission who are far from being experts in determining the facts as in nearly all cases, the facts have never been investigated and if gathered are biased by the body who are by statute and policy are required to perform a thorough investigation but rarely ever do. Employers have no idea of the billions of dollars that they and workers have to pay in excess taxes to fund Alberta Social Services, Alberta Health Care and also pay premiums to CPP. 

Of note and it is a good recommendation by employer groups is to have an office of the appeals advisor for employers as there are numerous small employers who like workers have no idea of how the system operates and cannot afford to pay for representation. Both of the Office of the Appeals Advisor for workers and employers must be independent of WCB and staffed by lawyers who are experts in workers compensation issues and paid out of the accident fund. I also like the idea of a WCB Ombudsman or Fair Practices Officer which I recommended nearly twenty years ago to Justice Friedman.

Workers Compensation Regulations have to be revised with no exemptions for any employer from having WCB coverage if changes to the workers compensation system results in better decisions that favor workers to eliminate any possibility of workers becoming a charge on family, friends and society which is the whole idea of the Meredith Principles. The regulations also have to be specific as to the amount of exposure required by specifying in column 2 of Schedule B of the Regulations, rather than significant exposure with reference as to where this information was obtained. Most if not all allowable exposure levels were determined over 40 years ago and have never been updated. A particular disturbing presumptive description of a work related occupational hazard occurs in point 8 column 1 of Schedule B specific to “Vascular disturbances of the extremities” which is explained in Column 2 of Schedule B which species only one cause , vibration without specifying other causes such as repetitive actions of the hand and wrist which causes reduced flow of blood to the upper extremities resulting in through the bone modeling process, the formation of abnormal bone which is susceptible to micro-fractures when workers are involved tasks that require high grip and pinch strengths leading to what is referred to in the literature as insufficiency fractures that if not treated results in avascular necrosis of the carpal bones, especially the scaphoid bone (Preisers disease) and lunate (Kienbochs disease) which are work related occupational injuries. Most doctors have no idea how the mechanism of reduced blood flow due to repetitive actions of the hand and wrist can result in micro-fractures to the carpal bones due to overloading of abnormal bone. 

Whether the WCB Review Panel likes it or not, I believe that there are some claims that have to be referred to to get a good understanding of why all long standing claims must be heard. I filed a claim for bilateral avascular necrosis of the scaphoids on behalf of a worker and the claim was denied through all levels of appeal based on the false work description provided by the employer and reviewed by a WCB Medical Advisor who provided an opinion based on the false description of the work activities. WCB refused to provide an ergonomic assessment of the work place and I then requested that this be done by Alberta OH&S by an expert in ergonomics. Despite the objections of the employer and WCB, OH&S performed an ergonomic assessment which supported the claimant’s description of the work activity and proved that the employer was lying. I requested a reconsideration by the Reconsideration Threshold Panel and based on the new evidence presented numerous medical opinions from all WCB Medical Advisors and as well as an outside Occupational Specialist and Hand Surgeon along with medical literature supporting causation, the Reconsideration Threshold Panel determined that there was a causal relation, overturned the decision of the original Appeals commission denial and sent the claim back to Customer Services. Customer Services despite absolute evidence to support the claim, denied the claim, the denial was upheld by the CSRC and went back to the Appeals Commission who then denied the claim despite absolute evidence supporting the claim by all private and WCB Medical Advisors who supported the claim. The reason why the claim was denied by the Appeals Commission was that George Pheasy decided that with due diligence, the ergonomic assessment should have been performed prior to determining causation and all the doctors opinions supporting causation could have with due diligence been provided by the worker supporting causation and should have been provided at the first appeals commission in person hearing. In affect all medical opinions were disregarded, medical literature was disregarded by the Appeals Commission and despite the fact that causation had been established based on medical fact, the Appeals Commission blamed the worker for not investigating and providing the information prior to their decision. In effect, the Reconsideration Threshold Panel disagreed with the original Appeals Commission and George Pheasy resulting in the same bodies within the Appeals Commission, Appeals Commission and Reconsideration Threshold Panel disagreeing with each other. The question then is who must investigate and gather the facts, is it the worker or the “Board” Who has the burden of proof and why would the burden of proof be on a worker when they do not have the powers of investigation. Why should a worker be held accountable for an employer lying about how work is performed and then having doctors providing medical opinions based on their belief that the employers false work activity has been been investigated by WCB and is found to be accurate. Denying a claim supported by all doctors and medical science is an abuse of power, an act of bad faith and most likely criminal fraud, yet no one wants to prosecute any one within the WCB system and most likely couldn’t any way because according to the WCA, WCB and the Appeals Commission can make an honest mistake. (LOL)

I take exception when any one accuses all WCB Medical Advisors as being biased or corrupt when in fact there are many WCB Medical Advisors who are good honest doctors who provide opinions on what they believe is true. Case Managers will with hold evidence from doctors who become victims of WCB by being lied to when performing IME’s or providing medical opinions. The ergonomic assessment that I have referred to performed by OH&S was deliberately with held by a Case Manager and being that I was in attendance at the IME, I provided the ergonomic assessment that resulted in the Hand Specialist determining a work related cause which the Appeals Commission refused to accept because it was after the fact and they did not want to admit they had made an incorrect decision in denying the claim. I also take exception to people who believe that Medical Specialists know more than a GP as there are many GP’s who take a special interest in a certain medical condition and are far more knowledgeable than a Specialist. 

Of interest is that presumptive status for firefighters which originated in the U.S. under total adversarial civil law where the burden of proof both for and against in all situations is placed entirely on the worker and the employer and then went further to include first responders which has resulted in major complications and financial burdens on tax payer with respect to PTSD claims. Recent studies have found that 87% of claims for PTSD by first responders are based on fraud as it is relatively easy to go on the Internet and get all the information a person wants on the symptoms of PTSD and then utilize these symptoms to convince a psychologist or psychiatrist to diagnose PTSD. Numerous fire fighters and first responders will submit a claim for PTSD prior to announcing their retirement and then receive compensation on top of their public pensions. The support for fire fighters and first responders as to why they were provided presumptive status in the first place is being questioned in the U.S. as all fire fighters and first responders knew prior to employment the risks they would face in their professions of being exposed to toxins, horrific accidents, violence etc. and thus could have chosen another profession. Unlike the military, civilian firefighters and first responders can hand in their resignation any time they decide to. Clearly,it must be realized and acknowledged that the only reason why fire fighters and first responders were provided presumptive status in the U.S. is that in an Adversarial system, the impossible burden of proof was placed on firefighters to prove causation specific to certain types of cancers as opposed to Canada which is supposed to adjudicate claims under an Inquiry system and thus there was no need to provide discriminatory legislation that favors fire fighters and first responders as common sense and logic based on a balance of probabilities is all that is required by law as evidence that any cancers diagnosed for fire fighters or first responders would most likely be caused by work exposure. Furthermore, causation is supposed to be based on common sense and logic (balance of probabilities) and not on medical evidence as that requires a much higher standard. This higher standard has been determined by numerous Canadian courts to not fit into workers compensation systems but seems to be a problem for WCB and the Appeals Commission to understand.

Having said that in Alberta and the rest of Canada, some one has to determine “who has the burden of proof” in all situations under what is supposed to be an Inquiry system whether for causation, offers of modified work, determination of disability, determination of earning losses etc. It is grossly illogical to provide WCB all the powers of investigation and then place the burden of proof on a worker who does not have the legislative powers to investigate, has relatively little or no knowledge of the system, has relatively little or no knowledge of medicine, has no financial ability to contact medical experts. It is obvious that the WCB BoD do not believe that the burden of proof is on the “Board” as evidenced by the fact that WCB Policy 01-03 specifically places the burden of proof on the worker, Policy 01-08 places the burden of proof on the worker and the Appeals Commission Rules of Procedure also places the burden of proof on a worker by stating that “with due diligence” the evidence that the worker was illegally forced to submit in an Inquiry system could have been provided at the original in person appeal panel hearing. In my humble opinion, in an Inquiry system, any evidence that was not provided by WCB during their investigation is not the responsibility of a worker to provide.  

Basically, workers compensation has very little in common with civil litigation and is analogous to the criminal justice system where there is a victim and the police who are usually considered to be neutral have all the powers of investigation and after a through investigation hands the evidence over to a usually independent Crown Prosecutor who decides if the evidence supports going to trial. In the workers compensation system, WCB is supposed to be a neutral party who investigates and determines whether there is evidence both for and against. In all cases, there has to be two scenarios, either the accident arose out of and occurred in the workplace or the accident did not arise out of and occur in the work place. Both scenarios have to be included in the adjudication process. In other words if an Adjudicator determines that the accident did not arise out of and occur in the course of employment, the Adjudicator then must determine the risk factors and the time and place outside of the work environment that caused the accident. It does not matter in any disagreement, if one person provides an opinion based on some evidence they have read, seen or been told, there has to be some conflicting evidence to contradict the evidence, not simply a negative opinion rebutting the other persons evidence without providing evidence to support the rebuttal. Climate change is a good example; some experts suggest that climate change is a natural phenomena that is simply changes of natural or normal weather patterns that have occurred previously over the last million or more years due to volcanoes etc, other experts suggest it is due to man made causes. Who does a person believe? It is obvious from the decisions made by the Alberta Appeals Commission that adjudication is based on the strict rules of civil procedure where a worker is considered to be a plaintiff bringing an action against a defendant which is not the employer but the “Board” as in nearly all cases, the employer does not attend in person hearings. Obviously that was never the intentions of Meridith to force workers from for the most part a fair and just court system where a worker had all the rights of a natural person into an administrative system adjudicated by incompetent, deceitful, disrespectful people where workers have lost all their rights to a fair and unbiased adjudication of their claims. If I am wrong, then why is it that in every situation upon investigation of WCB, there are glaring deficiencies in the system. After over one hundred years, the system should have been perfected not constantly having to be reviewed for corruption. Obviously no system can operate when the system consists of lay people determining medical evidence that is based on medical opinions from doctors who themselves have no idea whether the opinion they are providing is based on undisputed medical fact, undisputed medical literature or undisputed medical consensus. As with anything, any opinion must be based on a reference to specific literature, the chapter and pages where the medical opinion is derived from.  For anyone who is interested and spends a lot of time reading medical literature on a daily basis as I do, the word “may” is used consistently in medicine rather than the word “will” as it is impossible to determine how each individual based on their genetic makeup will react to prescription medications, toxins, stress, pain etc. and is the reason why there are some people who take prescription medications that result in death for some but total relief for the majority of people. In fact prescription medications are marketed based on the fact that some prescription medicines will cause major side affects and may result in death for some people but if the majority of people receive relief, these prescription medications are allowed to be marketed. 

Some of the responses to questions specific to psychological diagnosis is not complex at all especially when it involves a disabling injury. I have been in attendance at several psychological evaluations and for the most part, the assessment of determining a work related cause is simple. A psychiatrist determines the correct diagnosis from the DSM Manual and the severity of the psychological evaluation. They then consider the past history of a worker before and after an accident by review of a workers medical history. They go into a workers past family history prior to an accident which is very personal and leave nothing to chance. If a worker did not have any mental or emotional problems involving suicidal ideations and homicidal thoughts prior to a disabling accident and they have mental and emotional problems after a disabling accident, then it is easy to conclude that the emotional and mental condition is work related but if a worker has a history of emotional and mental problems such as marital disputes, financial problems etc. prior to a disabling accident it would be concluded that the psychological condition is not work related. In all actuality it is easier to diagnose a psychological disorder especially when the psychological diagnosis is based on a disabling injury than it is to diagnose an acute injury that may not show up on imaging.  More often than not it is Case Managers, DRDRB and the Appeals Commission who cause secondary work related psychological disorders by the inhumane and contemptuous treatment of workers. Although worker suicides or homicides are rarely or if ever reported in the media, most if not all workers have homicidal thoughts of harming the people who have destroyed their lives. All the workers I have talked to have stated that if they knew they could get away with it, they would cause harm to the people who destroyed their life. In a CBC Radio live broadcast after the incident involving Patrick Clayton, I was asked if I thought what he did was justified. My reply was that if local authorities do nothing to fix a broken system then any kind of violence against WCB Personnel was justified. 

The Alberta WCA does not specify as to who has the “burden of proof” . No one in Government, WCB or the Appeals Commission will answer that question. On November 8 and 9th I represented a worker in an in person hearing and was the first question I asked. The Appeals Commission refused to answer the question. I then requested that they file an originating notice for the Court of Queens Bench to answer that question which obviously forms the basis of every claim as without knowing who has the burden of proof, you cannot adjudicate any claim.  It is obvious also that the Alberta Court of Queens Bench also do not know who has the burden of proof in the workers compensation system as this was an issue that was dealt with by two different Judges on subsequent Judicial Review and Appeal. Justice Millar agreed with me that the workers compensation system is based on an Inquiry system and the burden of proof is on the “Board” to prove that modified work was offered and sent the claim back to the Appeals Commission to reconsider their decision to deny the claim and to contact the employer to determine if modified work had been offered. The Appeals Commission refused to contact the employer as directed and again denied the claim despite finally acknowledging that there was no offer of modified work and I was forced to go back to the Court of Queens Bench to rehear the same claim before a different Judge. Justice Yamauchi disagreed with Justice Millar as to who has the burden of proof in an Inquiry system and instead determined that adjudication is based on an adversarial system not an inquiry system and the burden of proof is on the victim (worker) resulting in total confusion as to who has the burden of proof. After over one hundred years, no one knows who has the burden of proof. How can a claim be adjudicated when no one knows who has the burden of proof? 

Questionably is why the Alberta Government does not enact legislation that provides the benefit of doubt to a worker rather than having the WCB BoD determine questions of law which they do not have jurisdiction. Providing a worker with the benefit of doubt when there are differences in medical opinions would make all claims that are supposedly complex, relatively easy as if there is a medical difference of opinion, rather to proceed to a MRP who in most or all cases are not world recognized medical experts and are simply providing more medical opinions that are not based on medical science, peer reviewed medical literature or medical consensus. According to the WCB BoD the benefit of doubt has to be based on medical fact which is not the proper or correct standard in workers compensation systems as medicine is not or rarely based on fact but is based mainly on speculation or in legal terms circumstantial evidence which is used in all legal proceedings but according to WCB cannot be used in adjudicating claims. If in fact the WCB Review Panel would zero in on the two primary problems that I have presented  as to “who has the burden of proof both for and against” and “providing the benefit of doubt in all cases to workers when there was a medical disagreement”, everything else would be totally irrelevant.

Question 17 posed by the WCB Review Panel is an interesting question “Should an option be made available for workers to obtain additional coverage through the WCB? Why or why not?” Why would workers want additional insurance through WCB when WCB does not provide compensation now and is why there is a review as to why the system is not working. The question that should have been asked is “Should employers be mandated to provide private disability insurance that is not based on work related injuries. In my opinion this should be a no brainer as employers and workers at present pay for both private disability and WCB disability insurance (dual benefits) for all public employees and as well as WCB employees to ensure that if WCB denies their claim, then the private disability insurer will accept the claim and pay benefits without going through years of appeals. This being the case then all workers in Alberta should be covered under the same dual benefits as public workers and WCB employees.

Oct 022017
 

CIWAA is pleased to see that the recommendations of the review panel have addressed some issues of great importance to injured workers. The panel heard from many injured workers and their allies and advocates of the “culture of denial” at the WCB. We are pleased to see that the panel calls for changes to put the needs of the injured worker at the centre. These include: elimination of incentives to close files and declare workers ready to return to work; ending secret arbitrary limits on the treatment workers receive; and ending the practice of returning “surpluses” to employers.

The panel has made a number of recommendations which address the improper use of medical consultants and independent medical examiners by the WCB. The recommendations to uphold the right of injured workers to choose their health care providers and, where an independent medical examination is required, to select the physician from a roster are very positive. We do however raise a concern that the Fair Practices Office, Medical Panel Office and Appeals Commission must function independently. The appointment of a Medical Panel Commissioner must not be subject to political patronage as has been the case in the past. We also support the recommendations to put in place a process for a worker to apply for continued benefits while an appeal is in process, and for continuation of medical benefits by employers.

The recommendations of the panel address the fraudulent deeming practices of the WCB, in particular the way in which WCB declares workers capable of working full-time at a phantom job such as a parking lot attendant or store greeter, irrespective of the workers’ skills, experience, education and physical limitations and the existence and availability of such work. To add insult to injury, WCB then increases the imaginary wage for this phantom job every year until workers are left with a pittance or often no benefits at all.

The recommendations are a good beginning, but in order to protect the rights of injured workers, deeming must be used only when documented evidence exists that a worker has refused a legitimate job offer for appropriate work. The job must be available and suitable for the worker’s skills, education and experience. The WCB must support injured workers in their efforts to obtain real work, recognizing the reluctance of employers to hire injured workers and the real difficulties faced in finding work. The reluctance of employers to hire injured workers must be recognized, and compensation continued until workers have found suitable work. A “deemed” wage must not only be based on verifiable information as proposed by the panel and established annually, not years into the future. All workers now deemed should be able to have their case re-opened including access to appeal.

The following areas are either missing are missing from the report and should be included in new legislation and policy.

1. Justice for Injured Workers now without benefits and often living in extreme poverty. The report details many ways in which workers are unjustly denied benefits, but makes no recommendations for reparations and to address the ongoing injustices.

The panel recognized that the review and appeal process is daunting for injured workers, especially those who do not have a union at their workplace or collective to support them. Injured workers living in poverty may have abandoned their claim, missed a deadline, or failed to assemble the evidence they needed to counter the “medical opinions” of WCB-retained “paper doctors” who never saw or treated them.

Recognition of the failure of the current WCB system to uphold the rights of injured workers requires that injured workers whose claims have been unjustly denied have access to review and appeal. All denied claims of injured workers where the decision was based on the opinion of WCB paid physicians, medical consultants and Medical Panels which contradicted the clinical observation and findings, ongoing direct examinations and supporting medical evidence of treating physicians and/ or health care providers must be reopened on request. As well, if the worker now has evidence or medical opinion which was not previously presented at the time of adjudication, this evidence should be considered and not rejected on strict legal grounds, e.g. time limits or lack of “new evidence.”

3. Claim suppression: Employers must not be permitted to engage in claim suppression with impunity and strong penalties against employers should be in place. All systems which encourage employers to suppress claims must be ended.

4. Non-economic loss payments should reflect the real impact of a disability on a worker’s life outside the workplace. Current payments show how little value is placed on the life of a worker. To provide some examples of how profound changes to a worker’s life are valued: a worker who becomes legally blind in both eyes would be eligible for a NELP of $28,800; complete immobility of a knee – $22,500; hearing loss – from $360 – $4,500 (and no, $360 is not a typo) and infertility – $4,500. The maximum for a worker who is totally disabled (e.g. paralysis of at least two limbs, profound brain injury, loss of both hands) is about $90,000.

5. Medical Panels. The decision of a Medical Panel is considered final and not subject to any form of appeal. This is a denial of natural justice. For example, new information could show that the Medical Panel erred. Therefore decisions rendered by Medical Panels should be subject to appeal.

6. Pre-existing conditions: The WCB declares that normal aging constitutes a “pre-existing condition” – a blatant form of age discrimination. Even when a worker has not previously been diagnosed or treated by a physician for this “condition”, and was able to perform their job before the injury but can no longer do so, WCB declares a “pre-existing condition.” WCB then limits benefits to a period of recovery from an “exacerbation of the pre-existing condition.” WCB should recognize a pre-existing disability or impairment, not a pre-existing condition.

7. The Fair Practices Office must include a consultative role for injured workers through their organizations.

We trust that you will consider these proposals, which have the support of the many Albertans who have signed out petition.

Yours sincerely,

Donna Oberik

Executive Director

Canadian Injured Workers Association of Alberta

Jul 142017
 

By Gerald

According to the Meredith Principles, all workers compensation systems in Canada were to operate under the legal standard which was to be an Inquiry model, not an adversarial model, yet all decisions made by the WCB and the Appeals Commission are made under the adversarial model where the burden of proof is placed on the worker which is the civil standard. We now have more presumptive legislation that removes the burden of proof from some workers while placing the impossible burden of proof on other workers. 

Odd that in Manitoba, the Inquiry model places the burden of proof on the “Board” and it is stated;

V Principles of Adjudication 

Inquiry Model 

The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement.

From the Osgoode Hall Law Journal it also states;

With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant

This being the case why then in Alberta is the impossible burden of proof placed on workers?

Click on the following link; https://www.mykawartha.com/news-story/7421045-coalition-for-ge-workers-agrees-on-how-to-proceed-with-compensation-from-the-province/

Legislation providing presumptive status for some workers and not for others is obviously discrimination. Why is legislation not enacted to provide all workers with presumptive status and enact legislation that places the burden of proof on the Board to prove that work was not causally related to an injury or disease which is the most logical way of stopping some workers from collecting benefits while other workers claims are denied because of the impossible burden of proving causation when workers are financially incapable of funding studies to determine causation. This defies any logic or common sense when the “Board” has exclusive jurisdiction to investigate all matters and rather than place the burden of proof on the “Board” places the burden of proof on the worker. This is called administrative fairness. What the hell is wrong with our elected Governments to allow this.

Jul 072017
 

The Government of Alberta has announced the WCB review recommendations. You can read them here. CIWAA would like to share your comments with the government, as there is still some disconnect of how many injured workers view the WCB.  Please read the review recommendations and comment on CIWAA’s open forum below, which will be sent to the government in September. Please make your comment and questions free of swear words/vulgar language so your voice can be heard.

Thank you:  CIWAA would like to thank Premiere Notley for her due diligence  in requesting a WCB review. 

Big thanks to the panel for their time and effort  and most importantly understanding and willingness to listen.
Thank you John Carpenter,  Pemme Cunliffe & Mia Norrie.

CIWAA encourages the  NDP government to delve into to day-to-day activities and govern operations at the WCB. Open up all long-term claims denied on bought opinion or when medical panel was used to deny eligibility.

If  criminal activity has been uncovered strictly for monetary gain that intentionally hurt/slandered or killed injured workers, punish those involved in a court of law. All within the WCB should include personnel from the top down as well as those doctors they consistently pay for opinions. 

CIWWA begs the NDP government on behalf of all injured workers their families  and taxpayers not to ignore the panels findings and the plight of injured workers. 

Injured workers deserve compensation for their injuries, period.

Granted, the government cannot give the injured workers the life they lost back, nor can they ease the pain and suffering. But the government can make the years they have left on earth  free of stress and financial worry. Prioritize accessible medical needs for injured workers.

Injured workers that passed on from their injuries and left their families in poverty and depression deserve the benefit their loved ones should have had in life. 

 
CIWAA asks very little for the injured worker who was hurt working in Alberta. 
Apr 292017
 

By Gerald

Provincial and Federal Governments tax workers without questioning or taking responsibility for where our taxes go. We know from several studies provided in the U.S. that the majority of disabled workers in Canada are not funded by provincial worker compensation boards. At the Federal level taxpayer dollars are collected and put into CPP where the Federal Government then provides disability pensions for work related disabilities. Even worse is that 50% of the taxes collected by the Federal Government are paid for by workers and provincial WCB systems claw back 100% of the disability pensions to reduce or eliminate paying earning loss supplements.

At the Provincial level tax payers are forced to pay for medical benefits for disabled workers through Alberta Health Care. Added to this tax payers are forced to provide social service benefits for disabled workers. There has to be accountability of our elected Governments to pay to have studies as to how many millions of dollars of tax payer’s hard earned dollars are going to subsidize employers Alberta employers to enable Alberta to have the lowest premiums in North America other than North Dakota which has lower premiums than Alberta and worse yet is when billions of dollars paid to WCB by workers is returned to employers in the form of dividends while tax payers pay the majority of the benefits to care for disabled workers.

The NDP Government must fund a study to determine just how much of tax payers hard earned dollars both Federally and Provincially are used to subsidize employers as an economic incentive to employers to stay in Alberta to take advantage of lower premiums or to entice employers from other provinces to relocate because of lower premium costs which in reality, this economic advantage is paid for by tax payers with the majority of tax payers being workers and their families.

Mar 312017
 

By Gerald

Perhaps if our elected politicians would read this link presented by a lawyer in a video they would understand why the Calgary Commercial Crimes Unit supported filing criminal charges against WCB for equating an impairment rating to a disability rating resulting in criminal fraud. You also may find that the Alberta Court of Appeals in the Penny case also determined that an impairment rating cannot be used as a direct method of rating a disability. This is also supported by the Hayden decision in Nova Scotia and the decision by the Yukon Supreme Court, all determining the same thing. The in person hearing with the Appeals Commission on Nov. 8 and 9th of 2016 was specific to using an impairment rating of 20% and not converting the 20% PCI rating to a PPD which is the correct methodology when determining a permanent partial disability. The Appeals Commission still after nearly 5 months have not made a decision as to how they intend to cover up my appeal regarding this matter. A 20% PCI rating does not equate to a 20% PPD rating and WCB, the AC the WCB BoD, WCB Legal Services and WCB Medical Services have known this for over 20 years and covered this all up by changing WCB policy on Jan 1, 1995 by redefining the purpose of an impairment rating by using impairment ratings to provide a non economic loss rather than an economic loss that was used prior to Jan 1, 1995. Click on the following link where the lawyer presents all of this in an easy to understanding video https://iln.isba.org/blog/2017/03/28/quick-takes-your-practice-ama-impairment-ratings-workers-compensation-cases

Perhaps Ms. Ganley should go after the real criminals in Alberta who have criminally defrauded workers knowingly for over 20 years.

Mar 272017
 

By Gerald

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.

Mar 132017
 

By Gerald

Seems that the Australian Government are also having to perform a review of a corrupt and dysfunctional system which most if not all workers compensation systems are. The buck has to stop somewhere when a public body has been determined to have a culture of denial and is considered to be dysfunctional. The buck stops at the Ministers in charge of the WCB and the Appeals Commission who are or have  been turning a blind eye to the abuse of workers and simply ignoring the recommendations of selected bodies such as Justice Friedman and a former MLA Doerkson. What is the point of having reviews of the system and then not doing anything to fix a broken system. Oddly enough the Alberta Education Minister can fire all the members of a school board but the Ministers in charge of WCB and the Appeals Commission cannot or will not fire the dysfunctional members of the WCB and the Appeals Commission when independent reviews of the whole system has proven beyond a reasonable doubt that all the problems of the workers compensation system is because of dysfunctional people making decisions that they are not qualified to make. Time to fire the whole bunch of arrogant, pompous ignorant bunch of misfits that have to be selected on the basis of political patronage and not on their qualifications.  It is obvious that reviews must be held at least every two years to ensure that once and if the system is fixed, that it will continue to run for the benefit of workers and not for the benefit of employers. Premiums can be reduced by ensuring that employers stop injuring and killing workers to increase their profits and if that takes filing criminal charges against employers and incarcerating them, then so be it. The safer the work place, the lower the premiums.

An indication of just how dysfunctional the Alberta workers compensation system is can be found by reviewing claims specific to psychiatric or psychological disabilities which I am presently reviewing which are absolutely dumbfounding as to the stupidity of WCB, DRDRB and the Appeals Commission. I say stupid because any one who denies a psychological injury based on the report of a WCB contracted Psychiatrist who determined that the diagnosis of major depressive disorder was not work related and not compensable because the psychological injury was caused by WCB has to be pathetically stupid. When anyone causes bodily harm to another person they are guilty of an indictable offense and liable to imprisonment for a term not exceeding ten years (Section 221 of the Criminal Code) Any first year law student would have advised WCB, DRDRB and the Appeals Commission to destroy the report and not use it to deny a claim. Oddly, two other totally independent Psychiatrists after reviewing the workers files determined that the diagnosis of MDD was caused by an emotional reaction to a work related physical disability which is compensable (Refer to WCB Policy 03-01 Application 6) which is one of the conditions in determining a work related cause. The worker had been diagnosed with failed back surgery syndrome that rendered the worker unable to support himself and his family which was found by the two dissenting Psychiatrists to be not only the major cause but the only cause of his MDD. The diagnosis of MDD was noted to be severe as the worker was diagnosed as being suicidal and homicidal as within the report which I have reviewed, the worker expressed the desire to kill his Case Manager. Obviously, WCB, DRDRB and the Appeals Commission shot themselves in the foot by attempting to cheat the worker from having his claim accepted for MDD and placed themselves in the position of being charged under the criminal code although the chance of this happening when it involves WCB, DRDRB and the Appeals Commission will never happen as the Alberta Government will not and does not prosecute WCB, DRDRB or the Appeals Commission for any criminal actions even though on another claim I requested that the Calgary City Commercial Crime Section investigate and after investigation they recommended that criminal charges be filed. The Crown refused to file charges as it is obvious that the Justice Minister at the time directed that no charges be filed.

Will the Alberta WCB Review Panel come to the same conclusion as the Australian WCB Review Panel or will they simply sugar coat their findings as I believe they will do. At least Justice Friedman had the balls to determine that the appeals system does not work and there was a culture of denial although over a decade later, the Alberta Government has done nothing to fix a badly broken system. The only people who have made any progress are first responders who have been provided discriminatory presumptive status while other workers struggle to have their claims and benefits accepted. Why should some people be given special status and other workers are treated with contempt and abused by the system. What makes first responders any more eligible for benefits than any other or other workers. First responders can like any other worker quit their job if the risks outweigh the benefits. There is no reason why all workers should not be provided presumptive status in all circumstances and then let the “Board” prove their case which is the way it was supposed to be done under an Inquiry system. I believe in total equality with no exceptions regardless of any ones occupation.

It is evident that the Alberta Human Rights Act is seriously flawed when in the preamble it is stated that “all”  persons are equal in dignity, rights and responsibilities and then contradicts itself by including only those people who fit into the protected category and excludes all other persons who do not fit into the protected category resulting in treating people differently under the law and before the law. This is evident by the number of times the courts have struck down differential treatment of people who have been excluded with the latest being “age” added to the protected category. This is pathetically stupid legislation that by inclusion, it results in exclusion and having to go to court to have people that are not in the protected category added. Section 15 of the Charter does in fact provide equality to all persons without specifying any protected category but does take note of “in particular” the mentioned protected groups without excluding every one else that does not by exclusion fit into with the people who are fortunate to be included in the protected group under Alberta legislation.

Prior to the historic agreement, workers had the burden of proof to prove negligence and after the historic agreement, in Canada the structure of all workers compensation boards were supposed to be under the control of Provincial Governments. Workers no longer would have the burden of proof as legislation placed the burden of proof on the “Board” who had the resources and exclusive jurisdiction to gather the facts. Somehow this dysfunctional system has changed to an Adversarial system where the burden of proof has reverted back to workers who do not have the resources to fight the workers compensation board along with the Appeals Commission who now represents employers as has been witnessed in the courts where both WCB and the Appeals Legal Counsel are fighting against a worker. Worse yet through legislation, if a court happens to overturn the decision of the Appeals Commission, the court has to by legislation send the claim back to the body who denied the claim and the Appeals commission has the power and right to overturn the decision of the court. Is this not a contravention of the Rules of Natural Justice when the same body who has made a ruling and then is tasked by the courts to rehear their initial decision and then make the same ruling that the court overturned.

In a democratic society we elect people to protect the more vulnerable in our society, yet the Government enact laws to protect the people who wreak harm on the people who are supposed to receive care for work related accidents. Rather than care for workers who have had their lives destroyed by a workplace accident they are forced to fight for benefits who by law are entitled to benefits. The whole system is based on protecting the employer by deliberately denying claims and benefits and then hoping that due to the unavailability of legal assistance, financial ability, that workers will give up and apply for tax payer funded programs such as Social Services and CPP disability benefits.

This dysfunctional system was encouraged and promoted by the former Conservative Government and can be changed from a dysfunctional system to a good system by the NDP Government who could through meaningful change leave a legacy that makes Albertan’s proud of the province we live in and proud of the Government that was elected to fix the problems created by the former Conservative Government.

Click on the following link:  http://www.smh.com.au/business/workplace-relations/review-finds-workers-compensation-complaint-handling-dysfunctional-20170308-gutqn4.html

Jan 202017
 

From the Canadian Taxpayers Association:

The Canadian Taxpayers Federation’s 2017 Teddy Waste Awards are coming up fast!
 
Every year, the CTF takes centre stage in the National Press Theatre on Parliament Hill to hand out golden pig statues to the worst money-wasters in government.
 
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