Jun 142020
 

WHY we advertise other provinces’ media write-ups  in support of Injured Workers . 

In Alberta information is not reported on the plight of Alberta injured workers through the media . If Alberta Injured Workers are lucky a story may be printed once or twice a year. Other provinces throughout Canada steadily have the support of the media which in turn garners the support of the public to outcry for justice. Although injured workers in Alberta suffer the same ongoing problems and maybe worse than  other provinces, the public and Government is not informed . 

Injured workers of Alberta need public and government  support when the WCB Alberta and the Appeals Commission working for the WCB Alberta refuse to comply with the Workers Compensation Act, The Alberta Court of Appeal, the Supreme Court of Canada or Human Rights. 

Out of sight of public scrutiny can allow those in power to abuse their power and ignore the laws and policies that are put in place to protect the disabled from work injuries that left them without any earnings , medical treatment and personal care. 

Like this lucky fellow below, many injured workers in Alberta have had their claim accepted and meet all laws in Alberta and Canada but WCB Alberta and the AC  still refuse to comply . The AC and WCB have made decisions against Alberta Injured Workers knowing they never had jurisdiction to overrule law. Injured Worker ‘s  in Alberta cannot get justice without any public scrutiny Alberta Injured workers are ignored  and cannot advocate alone.

Injured worker gets back pay, apology after WCB ignores ruling

ONTARIO VS. ALBERTA

ONTARIO

Tribunal adjudicators perform judicial functions. They must interpret legislation, weigh evidence and make legal and factual findings just as judges do. These tribunals are therefore properly understood to be judicial tribunals and the process for appointing and re-appointing adjudicators to judicial tribunals must be as principled as the process for appointing judges. At a minimum, decisions about re-appointments must be transparent and demonstrably free from any political interference. The process for selecting new appointees must be merit-based and competitive as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act (“the Tribunals Act”).

The system the government inherited

The previous government established a modern tribunal appointment and reappointment system as set out in the Tribunals Act and the Directive on Appointments and Re-appointments. The key features of the system were as follows:

A commitment to a competitive, merit-based process for appointments to tribunals

Qualified candidates were subject to a rigorous application process conducted by thetribunal (e.g. published selection criteria, interviews, writing a sample decision).

The Chair provided the government with a list of the most qualified candidates.Appointments were made only from that list.

With very few exceptions, appointments were for fixed terms, starting with an initial two-year appointment, followed by a three-year re-appointment, and a final five-yearappointment.

The Chair was solely responsible for making re-appointment recommendations. Theserecommendations were routinely accepted by the government. While not perfect, this system had many advantages:

The Tribunal Chair, who is in the best position to know the tribunal’s needs, retained control over who would be appointed and re-appointed.

People could look to tribunal adjudication as a profession with a reasonable expectation of at least 10 years of work subject to good performance. This made the position attractive to mid-career professionals with expertise in the subject matter of the tribunal and often adjudicative experience. Adjudicators were eligible for appointment to a new tribunal at the conclusion of a term, preserving the adjudicative experience for the overall system.

The potential for partisan appointments was significantly reduced.

Tribunals could plan on the basis of having a stable group of meritorious and experienced adjudicators.

What the present government has done

The present government has largely abandoned the system it inherited.

Instead:

Appointment recommendations from Chairs are frequently not accepted. Chairs have been pressured to consider alternate candidates proposed by the government.

Recommendations from Chairs about the re-appointment of existing adjudicators are routinely rejected, with no explanation provided. This is the principle cause of the existing severe shortage of adjudicators.

When re-appointments are made, they are for irregular and unpredictable terms. The length of terms has varied considerably even in the same tribunal, with no explanation for the different terms. Many new appointments have also been for irregular terms.

Most re-appointments have been for short terms, sometimes as short as 6 months. Even Chairs and Associate Chairs have been re-appointed for short terms.

Discussion

Even before the COVID-19 emergency, the circumstances of Ontario’s tribunals were already dire. The tribunals of most relevance to disadvantaged individuals were, in particular, seriously weakened. Experienced adjudicators were let go, large numbers of vacant adjudicator positions were left unfilled, and key tribunal leadership positions were either left vacant or filled with people with responsibilities for too many tribunals. The lack of any predictability about re- appointments, combined with a general demoralization about the deterioration of the sector, has necessarily caused large numbers of adjudicators to leave for less precarious employment, adding to the shortage. The precarious nature of an appointment also makes it difficult for tribunals to attract experienced, professional candidates.

Now, in the midst of a pandemic, the folly of this situation is even more evident. The numbers of the vulnerable have greatly increased, as has their need to be able to claim the protections offered by our laws. Now more than ever tribunals need a full complement of highly qualified adjudicators. Now more than ever they need leaders with the necessary subject matter and adjudicative expertise to effectively deploy resources and adjust processes to ensure procedural protections and deliver high quality outcomes. Now more than ever Tribunals Ontario needs to be led by someone with recognized expertise in tribunal leadership, someone who will be widely recognized as an impartial, non-partisan and independent guarantor of the integrity of this vital part of our administrative justice system.

The tribunals in Tribunals Ontario will play a critical role as we move forward. They will have to change how disputes are resolved and make important decisions about rights and obligations in the continually changing context of the pandemic. To do this, they need to be fully functioning. The mismanagement of Tribunals Ontario over the last two years, leading to a severe reduction in adjudicative capacity and competence, rising backlogs, demoralization of those who are left, and a leadership vacuum, means that these tribunals are nowhere near being able to function fully.

There are three things that need to be done as quickly as possible to rectify this situation.

3

  1. Fill the leadership positions through a credible, competitive and transparent process: The position of Executive Chair of Tribunals Ontario is a critical position and must be filled quickly. However, if the process is not credible, competitive and transparent, the integrity of Tribunals Ontario will be compromised. Parties, the public, and the tribunal adjudicators will lose faith in the ability of tribunals to deliver justice. Appendix B provides a detailed discussion of this issue.
  2. Restore the integrity of the appointment and re-appointment process: Tribunals need to have adequate numbers of experienced, competent adjudicators. The ongoing refusal to re-appoint adjudicators on the recommendation of the tribunal Chair or Associate Chair must stop. New adjudicators must be appointed as quickly as possible and the appointment process must at a minimum be consistent with section 14(1) of the Tribunals Act which states:

14 (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:

1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.

2. Aptitude for impartial adjudication.

3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.

3. Appointments and re-appointments must be for fixed terms

The current approach of inconsistent and mostly short terms for appointments and re- appointments will result in a serious erosion of the principle of adjudicative independence, a cornerstone of our justice system.

Those who appear before adjudicative tribunals must have confidence that the adjudicator in front of them has the necessary independence to make decisions on the basis of the law and the evidence, free from any concern that the adjudicator’s continued employment is conditional on the government’s approving the adjudicators decisions. This becomes especially obvious for tribunals where the government is a party.

Articles About WCB, Appeals Commission, and Injured Workers :

Response to the WCB Review: To read the Canadian Injured Workers Association of Alberta Response to the Final Report of the Alberta Workers Compensation Board Review Panel, click here

PLATFORM FOR CHANGE (2004)
As amended by the Thunder Bay & District Injured Workers’ Support Group

Return to Work and Ripple Effects on Family of Precariously Employed
Injured Workers

Workers’ Compensation System a ‘National Disgrace’: United Steelworkers

Spotlight on WCB policies and opioids

Meredith Principles

A. Sim’s Recommendations – Progress Update

Sims Report

WCB Appeal System Legislative Review

Member of the Legislative Assembly Workers’ Compensation Board Service Review Input Committee Final Report – October 2000

WCB Review – Working Together Progress Report

Sep 282019
 

By Gerald

Over the course of my 30 years involving workers compensation specific to the “Act”, WCB Policies, WCB Regulations, Federal Human Rights Commission, Provincial  Human Rights Commission Services Canada (CPP disability), Civil litigation, Family Law, Criminal Law, Charter, Judicial Reviews, one of the biggest problems within the workers compensation system is translation of the WCA and WCB Policies.

Most work related injuries involve pain. Most workers recover from their injuries and pain is no longer a factor, however for many workers pain does not go away and becomes chronic without any discernible organic reason. Non discernible chronic pain is compensable which is confusing for Case Managers, DRDRB and the Appeals Commission who are not doctors or lawyers specializing in workers compensation and are thus totally unaware that the Supreme Court of Canada determined that chronic pain must be recognized and compensation be provided as it is for any other physical or mental injury.

WCB Policy 03-01 Part II Application 7 is a two part policy specific to chronic pain and chronic pain syndrome which at first blush seems to provide only medical treatment for chronic pain which is obviously illegal but provides compensation for chronic pain syndrome which would then include compensation (medical treatment, loss of earnings and vocational rehabilitation). Many workers are under the false impression that if they want full compensation, they must be diagnosed with chronic pain syndrome to receive full compensation which is not true as chronic pain in itself is totally compensable and supported by the SCC specific to the Martin/Laseur case based on Section 15.1 of the Charter. In Alberta discrimination is under the jurisdiction of the Alberta Human Rights Commission and a complaint can be filed against WCB under the protected category of “disability” and the area of discrimination would be “services”

According to decisions made by the Appeals Commission when translating Policy 03-01 Part II Application 7, the Appeals Commission most likely because of inexperience and ignorance which is a common trait have not considered that the SCC has determined that chronic pain is “totally” compensable, not just providing medical treatment. WCB and the Appeals Commission incorrectly assume that entitlement of a worker diagnosed with chronic pain consists of medical treatment only without any compensation of an earning loss or vocational rehabilitation which is not in compliance with Section 15.1 of the Charter or Alberta Human Rights Act. A study by Noonan and Wagner determined that Alberta was one of the provinces that had not complied with legal precedence (SCC) and have continued to provide only medical treatment for chronic pain but no compensation for an earning loss or vocational rehabilitation which is illegal. The question is “why has the Appeals Commission not addressed the issue of non compliance as a quasi-judicial body to ensure that all workers are treated equally” leaving workers with no  alternative but to file a complaint with the AHRC who have the authority and jurisdiction to hear the complaint. WCB and the Appeals Commission incorrectly believe that because Section 6 (a) of the WCA provides the WCB BoD to determine policy which if interpreted correctly, policy must comply with the “Act”, the Charter and Human Rights legislation.

The Alberta Government was aware that WCB did not provide full compensation for chronic pain other than medical treatment and along with WCB, DRDRB and the Appeals Commission covered this up rather than enacting chronic pain regulations as was done by the Nova Scotia Government who in order to comply with the Supreme Court of Canada decision specific to chronic pain in the Martin/Laseur case enacted their chronic pain regulations which provided full compensation for chronic pain and not simply medical treatment as was and is the only part of a full compensation package provided by the Alberta WCB which workers are entitled to. The importance of receiving a PCI rating for chronic pain  which WCB does not provide is that without a PCI rating a worker is not entitled to a disability pension prior to Jan, 1, 1995 as WCB illegally has equated a PCI rating to a disability rating and after Jan 1, 1995, without a PCI rating a worker is not eligible for a NELP.

Of course chronic pain is only one of the many human rights complaints that WCB is guilty of but workers do not understand that at any time they have been treated differently from some one else and can prove it on a prima facie basis, they can file a human rights complaint which at present under a new Director and Commissioner is being taken more seriously than before under the old regime.

Mar 252019
 

By Gerald

The following reason is why the Alberta Human Rights Commission are dismissing complaints without investigating the legitimacy of the complaint. As well, any prima facie evidenced complaints specific to WCB are dismissed most likely on the direction of the Justice Minster and Minister in charge of the WCB;

The Alberta Human Rights Commission has put in place the Case Inventory Resolution Program in an effort to reduce a massive backlog of cases. For the past seven years the number of complaints received by the Commission has exceeded the Commission’s capacity to process them. Those unresolved complaints are carried forward into the next year resulting in a growing backlog of complaints. As a result, it can take up to 2 years for a complaint to reach the conciliation stage and approximately 4 years for a complaint to reach the investigation stage.

The Chief of the Commission, Michael Gottheil spoke on March 11, 2019 to the Canadian Bar Association Labour & Employment south section about the new program for addressing the backlog of cases at the Alberta Human Rights Commission.

The Case Inventory Resolution Program

As part of the change all complaints filed before January 1, 2019 will be placed in the Case Inventory Resolution Program, which will consist of an investigation team and a conciliation team.

  1. Investigation Team

There are currently 300 complaints in the investigation queue that have been through conciliation but were not successful in reaching a resolution and are now waiting for a Human Rights Officer to investigate.

The investigation team has been assigned to address the cases in the investigation queue. The team will consist of 4 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 5 cases per week and the entire team will meet weekly to review the files.

The Human Rights Officers will review each case, gather additional information from the parties and may request specific information and submissions on whether the case should be dismissed or not. The parties will have 30 days to respond to the request.

Once all the material has been gathered, the Human Rights Officer will review the file and the parties submissions and discuss with the team. The Director will make a decision on whether the case should be dismissed or not.

The Chief of the Commission anticipates the 300 cases will be assessed within 4-6 months.

  1. Conciliation Team

There are currently 1200 to 1300 complaints waiting to be assigned to a conciliator to conduct conciliation.

The conciliation team has been assigned to address the cases in the conciliation queue. The team will consist of 6 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 4 cases per week.

Initially, the Human Rights Officers will contact parties who have cases in this queue to inform them of the process, gather background information and schedule an in-person conciliation meeting 6-8 weeks down the road. Prior to the meeting the Human Rights Officer may contact the parties by phone and gather any additional evidence.

At the meeting, the conciliator will assist the parties in coming up with a resolution. If a resolution is reached, parties will sign a Memorandum of Agreement and Release. If no resolution is reached at the meeting, the conciliator will write a case summary with a recommendation to the Director. If the recommendation is to proceed to Tribunal, the conciliator will be encouraged to make a non-binding settlement recommendation.

The Director will then decide whether the case is dismissed or sent to Tribunal.

The Respondent will also be encouraged to make a settlement offer at this stage. The Respondent can request that the Director exercise their discretion under section 22 of the Alberta Human Rights Act to discontinue if the Complainant does not accept the offer.

The Chief of the Commission anticipates the 1200 – 1300 cases will be dealt with in 12-18 months and the conciliation team will likely start in May.

More information on the Alberta Human Rights Commission’s Case Inventory Resolution Program can be found here.

Jun 192012
 

 

Click on the following link: Re-thinking Workers’ Compensation-The Human Rights Perspective

Re-thinking Workers’ Compensation-The Human Rights Perspective, the June 2012 special open-access issue of the American Journal of Industrial Medicine, is now available online. These articles emerged from background papers prepared for the national meeting, “Rethinking Workers’ Compensation: Developing Strategies to Protect Injured/Ill Workers’ Basic Human Rights” convened by NESRI in 2010. Authors include Emily Spieler, John Burton, Jeffrey Hilgert, Katherine Lippel, Rebecca Smith and Martha McCluskey.

In the journal commentary, guest editor Les Boden writes, “The articles in this special issue propose an alternate framework and analysis, a human rights approach that values the dignity and economic security of injured workers and their families.” Mainstream debates around workers’ compensation are very technical, market-driven and cost oriented. The focus is rarely on meeting the needs of injured/ ill workers. This discourse ignores the plight of the injured/ill workers and their grave suffering as they navigate workers’ compensation systems that often function poorly on multiple levels. A human rights framework mandates that those most directly and negatively impacted by a system, in this case injured/ill workers, be at the center of any discussion concerning system reform. Contributors to the AJIM special issue accordingly highlight the many failures of workers’ compensation and explore pro-worker strategies, solutions and alternatives that are grounded in the experiences of injured/ill workers and designed to advance their rights. For a brief overview of the journal articles, click here. To access the articles directly, click here.

Many of you who receive my e-mails may recognize the name of Dr. Emily Spieler who I have had the privilege of corresponding with and being supported by her during my 7 year fight with the American Medical Association and the Alberta WCB. With her assistance and the co-operation of Dr. Brigham (Editing Chair of the AMA Guides 6th Edition), the AMA Guides were changed to reflect my criticism of the previous “Guides” prior to the release of the AMA Guides 6th Edition which changed significantly from the 5th to the 6th Edition. Many of you also know that the Alberta WCB were forced to admit that they were wrong as to their understanding of how to assess impairment when using the AMA Guides and rather than assess an impairment rating using the AMA Guides as directed by Dr. Talmage (AMA Medical Consultant) reverted to the use of the Alberta Guides which were the old meat charts used by all workers compensation systems in Canada who have abandoned the use of those antiquated earlier guides put together by Dr. Bell in 1960 which are still being used by the Alberta WCB. The Alberta Guides do not recognize chronic pain in any of their impairment ratings whereas the AMA Guides do. Legally, based on the Martin decision, the Alberta WCB is not in compliance with the Supreme court’s decision to recognize chronic pain as being a compensable condition. The Alberta WCB recognizes chronic pain only if it results in an earning loss but does not assess an impairment rating for a discernible diagnosed medical condition. The Alberta WCB must provide an impairment rating for chronic pain just as the Nova Scotia WCB had to and noticeably also is that the BC workers compensation board amongst others provide an impairment rating for chronic pain. A chronic pain rating must also be assessed for conventional impairment ratings and must be added to or combined with other assessed impairment ratings. Not doing this is a human rights violation or a violation of Section 15.1 of the Charter.

Dr. Spieler and her colleagues continue to be a thorn in the sides of workers compensation systems and as well as the Government’s involvement in creating legislation that strips workers of their rights and loss of dignity after suffering a work related injury. The system was and is not meant to be adversarial and was the reason why the system went to an administrative system instead of having claims heard before the courts. As it stands now, the system as it stands now was better 100 years ago then what it is today because of legislation brought in by Governments over the years to protect the “Boards” at the detriment of workers.

I would suggest that you click on all the links within the article to read the full versions of the studies and comments of the authors of the studies.

 

Gerry Miller