Here’s the article that recently appeared in Toronto Life on an injured worker who became homeless after turning 65.
This is good news but this should be only the tip of the ice burg. There are far too many appeals that go to the Appeals Commission resulting in far too many Appeals Commissioners. Clearly there is something wrong with this picture and is very costly. One of the solutions is to have Case Managers arrange in person hearings, subpoena the doctors who are the source of most if not all disagreements who intentionally provide false and misleading medical opinions or they are not competent in the area of medicine that they are providing an opinion on. I can prove that this happens quite frequently.
For example: the state of Oregon which has approximately the same population as Alberta requires only 4 Adjudicative Law Judges as opposed to Alberta who employ 41 Appeals Commissioners who do not have any medical backgrounds or have any expertise in administrative law specific to WCB and the adjudication of appeals. A better and less expensive method would be to appoint retired Judges to hear appeals and who would subpoena doctors, Case Managers and DRDRB and during trial have adjudicators justify why a workers claim or benefits were denied. All expenses incurred would come out of the accident fund which would eliminate workers having to go into debt to finance their appeal. This would certainly result in expediting claims in a timely fashion rather than to wait for decades to have a claim and benefits accepted and usually after a worker has lost everything which in many cases, they commit suicide or kill their entire family.
There are a number of Boards that were appointed by the NDP that are useless such as the Fair Practice Office, Occupational Disease and Injury Advisory Committee. The DRDRB is another useless body who on most cases rubber stamp Case Manager’s decisions with neither of them having medical expertise or legal expertise. One of the better changes by the NDP was case conferencing (Section 46.4 of the WCA) which is not being utilized by Case Managers DRDRB or the Appeals Commission by referring all medical issues to the Medical Panels Office prior to the appointment of a Medical Panel which in most cases would never be required.
Questionably is whether WCB is required in the first place as it is virtually impossible for any one to determine whether an injury or disease arose out of and occurred in the course of employment. Proving this or disproving this is extremely expensive and increases the cost of administering a system that entails numerous medical opinions, tests etc.that are inconclusive as medicine is and never will be an exact science. Medicine operates in a grey area where no one can say one way or the other what caused an injury or disease. It would be much more beneficial for workers and employers to mandate employers have disability insurance without proving cause or having a claim denied because of a pre-existing medical condition. Public sector employees have dual disability coverage as opposed to private sector workers who are only covered under workers compensation.Perhaps, the Government could enact legislation where all workers have dual disability coverage rather than having tax payers pay dual disability coverage only for public employees. At present the system does not work and unless changes are made, will never work.
This idea that the WCB BoD determines the “Boards” compensation policy is a blatant lie. WCB through their own Policy Consultation Committee determine the policy they wan enacted and the WCB BoD rubber stamp the proposal. I can prove this as when a person writes to the WCB BoD, the letter is intercepted by WCB and the answer to a question is provided by WCB.
This is an article written by Peter Rousmaniere who is a well known journalist and expert on workers compensation. I attended a webinar on Thursday March 7, 2019 at 10:00 AM hosted by experts in the area of workers compensation. The subject of using impairment ratings as a direct method of rating disability was discussed and the conclusion was that it has caused major financial problems for workers when determining disability which is why I went to court as this is a violation of a workers right to be compensated for a loss of earnings, not for the difficulty a worker would have performing basic activities of daily living which has got nothing to do with a loss of earnings.
Basically, the blame for all of this as determined by the Court of Queens Bench and supported by legal counsel on Feb. 20, 2019 was the fault of the WCB BOD who enacted the policy equating an impairment to a disability, thereby defrauding workers from receiving the loss of earnings they were entitled to. After the Penny decision, the Conservative Government should have directed that all claims prior to Jan 1, 1995 be re-adjudicated and workers life time pensions that were determined based on impairment ratings be re-calculated. It is obvious that the Conservative Government aided and abetted the Alberta WCB to defraud workers by failing to comply with the WCA as determined by the Alberta Court of Queens Bench and the Alberta Court of Appeal in the Penny case. Rather than to re-adjudicate all claims prior to Jan 1, 1995, the Alberta WCB BOD simply changed their policy to enact a dual awards policy that separated an impairment rating from a disability rating by using impairment ratings to determine a NELP and an ELP to determine an earning loss.
It will be worthwhile for people to see how the Office of the Ombudsman will handle my complaint in regard to this matter. Will they sacrifice or kill the sacred cow or will they recommend that the Government re-adjudicate all claims prior to Jan 1, 1995 and pay workers what they are entitled to or will the Office of the Ombudsman simply attempt to coverall of this up just as the Conservative Government did after the Penny decision. None of this was an honest mistake as the Government and the WCB BOD knew what they done was wrong as witnessed by the fact that after the Penny decision, they separated impairment ratings from loss of earnings and went to a dual award system but failed to pay workers what they were entitled to prior to Jan 1, 1995.
Click on the following link:
Click on the following link:
This is the same guy that came from BC whose track record in BC was to
assist in denying legitimate claims. Click on the following link:
Questionably is where they get these people from. Grace Thostenson who I
knew when I was a member of IBEW Local 348 was recently appointed the
Chair of the WCB Board of Directors who hired him apparently did not
check into his background before making a choice to hire him. He comes
with a lot of baggage and this is a guy that is supposed to care about
workers and their families just as Guy Kerr cared about workers and
their families. Donald Duck would have been a better choice as the last
person any one would or should hire is some one who started off as a
Case Manager and has never had a real job other than WCB. How much is
WCB paying him to wreak havoc in the lives of workers resulting in
family breakups, suicides and homicides. Perhaps the Government should
make public how much Kerr received as a golden handshake for assisting
in destroying many workers and their families lives.
The following story supports my argument that you cannot provide
presumptive status to some occupations and not to others. Click on the
following link: https://www.cbc.ca/news/canada/sick-worker-groundbreaking-case-wsib-benzene-1.4649680
It is obscenely illogical to provide presumptive status to firefighters
when other occupations have a greater risk than fire fighters. Truth be
told, there need not be any occupational disease that requires evidence
based on medical certainty which the Supreme Court has determined is too
high a standard meaning that no one has to provide epidemiological
evidence to support causation. Causation in the workers compensation
system is any contributing factor which consists of a very broad base
from a trivial cause to a probable cause. It need not be more probable
than not which is the civil legal standard,not the legal standard in
workers compensation systems according to the Supreme Court. There are
no complex cases that are filed with WCB as in all claims the benefit of
doubt is supposed to go to a worker meaning that if a cause is unknown
and WCB cannot determine an alternate cause, the claim remains in a
neutral state where the benefit of doubt goes to a worker. In the past
and at present, if a cause is unknown, the claim is denied with no one
questioning if the cause is unknown and WCB cannot provide an alternate
cause, why is the claim denied as the benefit of doubt is by law
supposed to go to the worker.
No occupation should be treated differently than any other occupation
but unfortunately the Alberta Human Rights legislation in the preamble
it states that all persons are equal in dignity, rights and
responsibilities and then states in the same paragraph, that these
rights are only extended to the so named protected classes and if a
person does not fit in the so named classes, according to the AHRC there
is no equal rights protection. You would think that instead of enacting
laws that treat all persons equally rather than naming the classes that
are protected would be the intelligent way to enact legislation. It
makes no sense at all to keep adding specific classes rather than to
simply enact legislation whereby all persons are treated equally.
I did file a human rights complaint when the presumption legislation was
passed and the complaint was denied because occupations were not a
protected class which means that the Government can pass laws providing
differential treatment for any occupation that they feel should be
provided differential treatment. If they felt that all MLA’s should not
have to pay provincial taxes, could drink and drive, possess and use
heroin, crack cocaine etc and no other occupation could do like wise,
they could do so under the Human Rights Act. I do believe that under the
Charter, Section 15.1, that presumptive status for any occupation
according to a large consensus of lawyer would be struck down. Studies
have shown that other occupations have far more of a risk for certain
cancers than firefighters and a recent study has determined that
firefighters risk of cancer is due to a genetic factor which predisposes
them to cancers and in the U.S. some States are rescinding legislation
because studies have determined that the only firefighters to get any
cancer have a genetic link to cancer which predispose some firefighters
to cancers while other firefighters without the genetic link have no
more of a risk than any one else. By testing firefighters for this
genetic link prior to employment, those candidates with the genetic link
would not be hired thereby reducing or eliminating any risk.
When this bill was presented by Richard Magnus who I knew quite well
from his days as my Alderman in Calgary, I told him that in Canada
adjudication is based on an inquiry system which means that all persons,
whether firefighters or not firefighters have presumptive status simply
because when there is any doubt on any claim, and if there is no
evidence to support an alternate cause a claim is considered to be in a
neutral position, this establishes presumption. I explained to him that
in the U.S., because adjudication is based on an adversarial model, the
burden of proof was on workers which made it impossible for any worker
to prove causation, thus because of their high profile and a feel good
feeling for elected officials to gain favor with the electorate,
presumption for firefighters was enacted. Mr. Magnus had no idea of the
difference between an inquiry system and an adversarial system and was
under the impression like many of his colleagues that when a worker
filed a claim, they were the ones bringing forth an action and
considered to be plaintiffs in the case and had the burden of proof.
I represented two workers at two in person hearings with a member of the DRDRB on Nov. 14, 2018. The first claim was an appeal of decision to deny house keeping allowance, home maintenance allowance and personal care allowance. Two WCB policies were discussed which were WCB policy 04-07 Part I and II and WCB Policy 04-10 Part I and II. The DRDRB specialist had to have it explained to him how to interpret a serious injury from a severe injury. I had to explain to him that a severe injury was an injury that was prolonged and a serious injury was an injury that was not prolonged. The definition of a severe injury had changed in 2000 by WCB to conform with medical sciences definition by using the word prolong to define a severe injury. This change was also made by the Federal Government by Services Canada to comply with the definition of a severe injury. Severe injury was also defined by AISH. Obviously an injury cannot be considered to be severe if the injury is not prolonged as injuries that are not prolonged will result in total recovery. Having said that, WCB has been defrauding workers since 2000 who have been diagnosed with severe injuries that are prolonged and did not pay them to what they were entitled.
The next issue we discussed was the difference between an impairment and a disability which he argued is the same thing which it is not and was determined in 1993 that an impairment rating was not the same as a disability rating. This also was determined by the Nova Scotia Supreme Court and the Yukon Supreme Court. Questionably is whether he could read and comprehend as he stated that he had read the case specific to the Penny case by the Court of Queens Bench and subsequently appealed to the the Alberta Court of Appeal. According to him the Alberta Court of Appeal over turned the decision of the Court of Queens Bench which if any one can read, the Alberta Court of Appeal upheld the Alberta Court of Queens Bench and dismissed the appeal of the Appeals Commission. The Penny decision was also reviewed by two Appeals Commissioner Rodney Fong (lawyer) and J. McKenna (lawyer) who also claimed that the Alberta Court of Appeal had over turned the decision of the Alberta Court of Queens Bench. Any one who can read knows that the Alberta Court of Appeal dismissed the appeal of the Appeals Commission and upheld the decision of the Court of Queens Bench that had determined that using impairment ratings to determine a disability was not in compliance with the “Act”
For those interested in checking what I have said about Fong and McKenna being idiots who can’t read, go to Appeals Commission decision on Canlii cited as 2016-0810, go down to para 68 and 69 and this is all the proof a person needs to show what kind of idiots that are selected by the Government to adjudicate claims. The other idiot involved in this was Jossa who along with Fong are no longer Appeals Commissioners although McKenna is still there. What is needed is to do a whole shakeup of the entire Appeals Commission, terminate them all and attempt to select intelligent people rather than idiots who cannot read. On Feb. 20, 2019 we will be going to court to have this issue of impairment and disability being settled, once and for all.
Most people are aware that lawyers have very little or no integrity or principles which is evident when performing surveys involving trust. Lawyers are always at the bottom of the list. The case I am presenting is why all long standing claims must be reheard by unbiased, knowledgeable people with integrity. Grandfathering claims that has resulted in grievous harm to workers should be as important as grandfathering the grievous harm caused by Governments to natives and the grievous harm done to Albertans who were forcefully sterilized due to the governments belief in eugenics. Much of the harm done to workers should fall under the criminal code based on criminal fraud not honest mistakes and the people involved including Wispinski incarcerated. Aiding and abetting criminal action is an indictable offense. Should the Appeals Commission be headed by some one who has allegedly committed an indictable offense. I think not.
The case I am presenting may be be found on Canlii although the Judicial Review presided by Justice Millar was not put on Canlii for obvious reasons because the harm it could of caused WCB and the Appeals Commission. This particular claim goes back to 2007 when the worker was injured although he is still fighting two claims specific to work related accidents that happened 45 years ago. In the 2007 accident, unbeknown to the employer, the worker applied for the job despite the fact that he was on CPP disability and also AISH because WCB on the two previous claims dating back 45 years illegally denied his benefits that he was entitled to. The Case Manager (Neil Swancar) had advised the worker that he was unemployable and that he must lie or hold back any information about his medical condition to obtain work. He followed the directions of Mr. Swancar and on the first day of work slipped on some stairs, fell into a pile of rocks and had to go to the emergency in Olds, Alberta where he was found to have suffered internal injuries and was passing blood in his urine. WCB accepted his claim and a WCB doctor, Dr. Henderson opined he would recover in 3 months. The workers Case Manager told the worker that the employer had offered modified work which was a lie and verified by the employer that it was a lie. The intent by the Case Manager, Carole Couture was to terminate his claim to claim her bonus provided to all Case Managers by WCB to terminate claims. This practice was verified by John Wollcott, another Case Manager with WCB who claimed all Case Managers did this.
This claim went through the appeals process and two years later, without any investigation by WCB, at an in in person hearing the Appeals Commission determined that the worker was not entitled to a temporary total earning loss for 3 months but was only entitled to a one month temporary earning loss because according to the Case Manager, Carole Couture modified work had been offered but the worker refused the offer of modified work. Questionably is why the Appeals Commission would not have simply sent the claim back to WCB and directed that there be a written offer of modified work from the employer rather than to assume that the Case Manager was honest which questions their decision making capabilities. Stupid people do stupid things. Needless to say, the Appeals Commission directed that WCB pay one month loss of earnings and denied the additional two months loss of earnings because they assumed that the employer had offered modified work because the Case Manager said that the employer offered modified work.
Undaunted we then put in a claim for a temporary partial loss of earnings which was denied by another Case Manager. Her decision was upheld by the DRDRB even though over 3 years later, WCB had still not investigated or contacted the employer as to whether modified work was ever offered. On appeal to the second group of misfits (3 stooges selected as Appeal Commissioners) I requested that the employer and the Case Manager be subpoenaed to prove that no offer of modified work had ever been made. This request was denied because the 3 stooges decided that documentary evidence was adequate to make a decision which as any fool knows, documentary evidence is only accepted by fools and is rarely or ever used in real courts presided by real judges rather than the stooges or monkeys selected by the Government who are as dumb as the people they select.
During the in person hearing, a question was asked by a member of the Appeals Commission, Patty Whiting if modified work was discussed which was a stupid question as discussing modified work is not the same as offering modified work. Rather than answering the question, the employer replied that had he known the worker had work restrictions was on CPP disability and AISH, he would not have hired him in the first place. This seemed to go over the 3 stooges heads and the claim for temporary partial loss of earnings to the end of May was again denied. We requested a reconsideration based on the fact that I contacted the employer and asked if he had ever offered modified work through the Case Manager or contacted the worker directly to offer modified work and his reply was that he did not at anytime offer modified work. Not getting any where with these assholes who clearly should have or could have been replaced by monkeys we chose to go to Judicial Review.
The Appeals Commission and WCB in their statement of defense, suggested that the burden of proof was on me to prove that modified work was not offered and suggested that during the in person hearing attended by the employer via teleconferencing that I should have asked the employer if he had offered modified work. The issue of modified work should have been cleared up at the initial stages of WCB’s investigation and not having me having to ask a question that the Appeals Commission should have considered and not after the fact blame me for not asking a question that WCB by law and policy were responsible for obtaining during an investigation. In Justice Millar’s decision the decision to deny the claim was based on their belief that the burden of proof was on me and that it was up to me to contact the employer or ask the employer at the in person hearing if modified work was presented. Per verbatim, Justice Millar replied to this, “with respect, this appears to be the flimsiest of evidence with respect to the offer of modified work.When confronted with Mr. Miller’s repeated denials that no modified work had been offered and no written documentation had been produced, the decision of the Appeal Commission in this regard is under review, which would be respected if it is reasonable. In my view, it was not reasonable. The case notes of the WCB Case Manager is barely worthy of note and amounts to an absence of evidence. To suggest that the Appeals Commission needs more evidence by suggesting Mr. Miller had an opportunity to ask the employer has some merit. However as noted by the applicant, this is an inquiry system, not an adversarial system. Justice Millar after rendering his decision, he stated per verbatim, “In the result, I find the approach of the Appeals Commission was not reasonable. It is for the Appeals Commission to determine if they will require some written confirmation of the offer of modified work or in its absence, subpoena the employer with a notice to attend to confirm the offer of modified employment. That question should be referred back to the Appeals Commission for a reconsideration with a new panel” The claim was referred back to the Appeals Commission and they refused to contact the employer as they knew that there was never any offer of modified work, they knew the Case Manager had lied and they knew they had naively believed her making them look like fools. Not wanting to look like fools, they denied the claim for a second time stating again that the burden of proof was on me and that I should have asked the employer at the in person hearing if modified work had been offered despite the fact that Justice Millar had already determined that in an inquiry system, there is no burden of proof on any one other than the “Board” who had not done their due diligence and performed a thorough investigation. Note: in this particular workers claim, it was determined that there need not be a written offer of modified work and when looking on Canlii on an Appeals Commission decision, an employer appealed a decision of the DRDRB specific to whether there need be a written offer of modified work and the Appeals Commission determined that there must be a written offer of modified work, signed by the worker and the employer and dismissed the appeal of the employer because the worker had not received the written offer of modified work because the written offer of modified work went to the wrong address and was therefore not signed by the worker. Either a written offer of modified work is required in all cases or a written offer of modified work is not required. This would be a valid complaint to the human rights commission based on differential treatment. I suspect that every claim would result in differential treatment and result in a human rights complaint due to inconsistent decisions that result in discrimination.
According to the principles of stare decisis ( When an issue has been been preciously brought to court and a ruling issued) the same issue cannot be brought back to be re-adjudicated) The principles of res judicata (an issue that has been determined by a competent court and may not be pursued further by the same parties) and as well the principles of issue estoppel. After denying the claim for a second time we again had to request another Judicial Review. Rather than WCB having their Legal Counsel represent WCB and Wispinski represent the Appeals Commission, Wispinski represented both WCB and the Appeals Commission which clearly was a conflict of interest as the Appeals Commission is supposed to be a neutral body, not a body representing WCB. Representation was discussed with Yamauchi and Wispinski made it quite clear to Yamauchi that she would not allow me to represent the worker because it was apparent that I knew more than her and after two of their senior legal counsel losing the case before Justice Millar, she could not allow me to represent the worker. Rather than Wispinski doing the right thing and acknowledging that there was never an offer of modified work, an honest person with any integrity would have advised the court that she could not defend the Appeals Commission to criminally defraud the worker out of the two months entitlement for a temporary loss of earnings making her an accessory to an indictable offense which is criminal fraud. Based on the same evidence that was before Justice Millar, Justice Yamauchi should not have allowed the Judicial Review to proceed based on the principle of stare decisis and not disagreeing with Justice Millar and disrespectfully disagreeing with Justice Millar determining that we had the burden of proof in determining whether modified work was offered or that I should have requested this information at the in person hearing which is patently unreasonable as this should have been determined by WCB who were not in compliance with their own policy by not investigating the claim two years before the in person hearing. We could have appealed the decision of Yamauchi to the Alberta Court of Appeal but with limited finances, the worker like thousands of other workers face the procedural unfairness of having to pay for a lawyer while both the Appeals Commission and WCB use money out of the accident fund that belongs to workers which does not belong to them but is held in trust by WCB and not to be used to bully workers into not going to the courts for Judicial Review.
It is apparent that the whole reason by the Appeals Commission not complying with justice Millar’s directive was to teach us a lesson after they had lost the court battle between their senior legal counsel, WCB’s senior legal counsel and I by making this a vindictive and retaliatory lesson for workers who would dare question their expertise in adjudicating claims and then making them all look like fools.
Still not backing off, we filed a multi-million dollar civil action suit against the Appeals Commission suspecting that their statement of defense would be based on Section 13.1 (9) of the WCA which removes or forbids any action against the Appeals Commission if their decision was made in the honest belief that it was within the Appeals Commission to make. Having them admit they made a mistake in denying the claim was worth the $200.00 it cost to file the civil action. Despite in the statement of defense, they admitted to making an honest mistake, they still refused to apologize or pay the worker the $8,000.00 dollars they owed him which questions the integrity of Wispinski and Tadman who should have sent the claim back to WCB directing that WCB pay the worker..
Having experienced shit like this I do not question why workers take the law into heir own hands and seek revenge. According to the criminal code, it is legal to take the law into your own hands when local authorities refuse to protect you as long as you use reasonable force. At the time that Patrick Clayton decided to take matters into his own hands in all the forums that I read, most people agreed with what he done. I also believed that he was justified what he did and in a CBC interview, I expressed my views and when asked if I believed that incidents like this would happen again, my reply was, most certainly it would.
The WCA was changed in 2018 specifically to how the WCB BoD must be selected. The same selection process should be used to select Appeals Commissioners as per Section 5(1.1) effective in 2018 where an equal number of Appeals Commissioners are selected from a list of persons chosen by workers, an equal number selected from a list chosen by employers and an equal list chosen by members of the public rather than now where Appeals Commissioners are chosen based on their political affiliation. There is presently 43 Appeals Commissioners which would mean if this method was put into place, the Government would select 14 Appeals Commissioners from the lists presented by injured workers groups, 14 Appeals Commissioners representing employers and 14 Appeals Commissioners representing the general public. As any monkey could serve as the Chief of the Appeals Commission, this selection could come from the Calgary zoo. At present, at an in person hearing there are no worker representatives and is the reason why over half of the appeals are denied because when choosing the three panel members to serve at in person hearings, all are professional, business, management, former government employees, lawyers, former WCB employees, union business managers with only one of the Appeals Commissioners (Stephan Dussault who has only been in Alberta for 5 years and has never participated in any in person Appeal Commission hearings) being a blue collar worker.
There needs to be some one in charge of the of the WCB and the Appeals Commission as at present no one is in charge or taking responsibility for the corruption that workers experience. Incidentally, I did hear that the person selected to be the head of the Fair Practices Office would be Tadman.
While reviewing case law I came across a decision by the Alberta Court of Appeal which I had to read several times. I always thought that when a worker filed a claim that WCB was the unbiased neutral party. Apparently this is not so as explained in a decision by the Alberta Court of Appeal. Click on the following link and scroll down to paragraph 83 https://www.canlii.org/en/ab/
According to the court it is stated that; As to the third and fourth factors, it should be noted that Klemke has a more limited interest in this process than the WCB or Mr. Davick. Here, the ultimate dispute is between the worker and the WCB, as any awarded benefits are paid from WCB coffers. The employer has an indirect financial interest only, through a possible increase in WCB premiums.
It would be fair to conclude that when a worker files a claim that WCB takes on the role of the defendant representing the employer who has only an indirect role in the claim and any dispute is between the worker and WCB This being the case, how then would this not give a reasonable apprehension of bias if the dispute is between a worker and WCB with no direct interest by the employer. This certainly is some bastardized part of the law which obviously is not a civil legal standard or any other legal standard.
WCB policy 03-01 Part II Application 7 specific to chronic pain and chronic pain syndrome is broken down into two parts, one part of the policy is specific to chronic pain and the other part of the policy is specific to chronic pain syndrome. According to the policies and how they are interpreted by WCB, DRDRB and the Appeals Commission, workers diagnosed with chronic pain will not receive full compensation benefits as would other workers who are diagnosed with discernible organic diagnosis. Workers diagnosed with chronic pain may receive treatment only as per WCB policy, with no monetary benefits or any rehabilitation benefits. Clearly, this is discrimination. WCB policy 03-01 Part II Question 2 states in part: “WCB may consider treatment for chronic pain” but only if chronic pain has the prescribed characteristics found in question 2. WCB Policy 03-01 Part II Question 3 states in part; “chronic pain syndrome may be compensable” meaning that chronic pain syndrome is compensable ( Compensation is based on loss of earnings, if a worker meets all the prescribed conditions as well as marked life disruption
If a worker is diagnosed with chronic pain syndrome, according to WCB policy, they will receive full compensation which would include monetary benefits and vocational rehabilitation which also results in discrimination against workers diagnosed with chronic pain who only receive treatment for chronic pain and is contrary to to Alberta Human Rights Legislation and Section 15.1 of the Charter. This is not rocket science and questions what convinced Smallwood and Mason to dismiss my complaint despite being upheld by the Southern Regional Director (Pardeep Gundara), the Southern Regional Investigator, Shirleen McGovern( Lawyer) and the Director’s Legal Counsel, Jim Foster. Questionably is if WCB paid Mason and Smallwood to dismiss the complaint because the overwhelming cost of having to rehear all claims involving chronic pain and having to pay workers hundreds of millions of dollars in restitution along with interest for the benefits workers are supposed to be entitled to. The complaint was so simple that any moron should have been able to understand, yet Smallwood and Mason dismissed the complaint based on what they considered to be lack of prima facie evidence to support the complaint. Clearly if workers diagnosed with chronic pain would only receive treatment, no monetary benefits, no vocational rehabilitation, they are not being treated equally but clearly being treated differently than other workers who received full monetary benefit.
As every one knows or should know, Section 56 of the WCA provides a lifelong pension for an impairment rating that WCB were using illegally as a direct method of rating a disability. That has been factually proven by the Alberta C of QB and the Alberta Court of Appeals, the courts in Nova Scotia and the Courts in the Yukon. This means that in order to be assessed a PPD in compliance with Section 56, a worker must receive a PCI rating. If a worker does not receive a PCI rating, a worker would not be entitled to a PPD and life time pension meaning that all workers diagnosed with chronic pain would not receive a PCI rating, no PPD rating and no lifetime pension. PCI ratings are derived from the Alberta Guides and if the Alberta Guides are silent or deficient, then a physician in order to provide a PCI rating may use the AMA Guides latest edition. The Alberta Guides do not and and to this day never have provided a PCI rating for chronic pain which leaves only the AMA Guides that did not provide a PCI rating for chronic pain until 2007 when the AMA Guides 6th Edition were published. Questionably then if all workers must be assessed a PCI rating, what “Guides” did WCB use to assess a PCI rating prior to 2007. Impairment ratings cannot fluctuate by any more than 10% which would mean that physicians had to have some sort of guidelines to ensure consistency. No one in WCB can answer this question as no one knows how they could have assessed a PCI rating without any “Guides” Further questioning is, “can foreign doctors who have no standings in Alberta or Canada determine on behalf of WCB what compensation workers in Alberta will receive. In my legal opinion, this would be illegal. No one at this time knows who provided the impairment ratings for the Alberta Guides and we know that American physicians provided impairment ratings for the AMA Guides meaning that foreign physician are in fact determining what benefits workers in Alberta would receive.
Worse yet because impairment ratings do not measure a workers ability to work, workers who were diagnosed with erectile dysfunctions, had difficulty reaching an orgasm, brushing their teeth, defecating, urinating prior to Jan 1, 1995 would receive up to a 15% PPD rating for the rest of their lives when WCB were illegally using impairment ratings as a direct method to determine a PPD rating and after Jan 1, 1995 would receive a 15% lump sum payment for a NELP as opposed to workers diagnosed with chronic pain who received nothing but treatment How then could Mason and Smallwood determine that workers diagnosed with chronic pain were being treated equally. Receiving no benefits other than treatment for chronic pain while other workers receive full benefits such as a loss of earnings, vocational rehabilitation and as well medical treatment would not be considered to be equal treatment.
Any one who claims that the administrative law system is far better than having claims heard in the courts has to have rocks in their head. Administrative law systems and adjudication by morons who have no training in medicine, no training in law, have no idea how to interpret legislation, regulations or WCB policy should not be adjudicating claims when no one has a clue what they are doing has no advantage over having claims heard in the courts under civil law. Administrative systems could work if we had a Justice Minister who was an expert in administrative law as it pertains to workers compensation, a minister in charge of WCB who knew the system inside out and a premier who also was an expert in administrative law as it pertains to workers compensation. Unfortunately this is not the case with all of the a fore named people having as much of a clue as the people adjudicating claims. If administrative law was better why is it that claims that go back nearly 50 years are still being disputed and there are thousands of disputed claims with many workers simply giving up or committing suicide. The same crap that existed when the Conservative Government were in power is the same crap that will continue during the time the NDP Government is in power with very minor changes being made to a corrupt and badly managed system to the detriment of workers. Anything worth doing is worth doing right and if you cannot do it right, scrap the entire system, entitle workers to social services benefits and allow workers to sue the employer under the rules of civil procedure and not give workers the false sense of security that this is an inquiry based system and all they have to do is file a claim if they are injured and WCB will look after them. This is nothing more than a crock of shit and not realized by workers until they are injured, only to find they are on the outside looking in.
The whole system is convoluted and ambiguous with no one including the Office of the Ombudsman. I requested that the Office of the Ombudsman make this determination as to whether the system is an Inquiry system or an Adversarial system. The answer to this was that when a claim is filed, it is an Inquiry system and the burden of proof is on the “Board” It becomes an Adversarial system when a worker appeals the decision of the Case Manager according to the Office of the Ombudsman. According to Justice Millar who presided over a Judicial Review which we won, the system is based on an Inquiry system and remains an Inquiry system throughout a claim. Question is, does any one really know how the system works. You would think that after over 100 years that the system would be a smooth running system rather than a system that no one can explain the purpose and philosophy of workers compensation and if it is even required being that the majority of workers wind up on Social Services or CPP Disability.
Based upon my own research and reading articles like this, it is apparent that the workers compensation system is broken in all States and Provinces. Being that the system in Alberta is beyond repair perhaps it is about time that the Government appoint another Review Panel that is far more knowledgeable of how the system works rather than appoint former bureaucrats that know very little about how the system works and how to fix it. To suggest that the system in Alberta is not corrupt indicates the total ignorance of people like Gray, Ganley and Notley when it can be proven that WCB Legal Services have lied to the courts, lied to the Human Rights Commission. I shall commence in my next e-mail to explain how WCB has deliberately defrauded workers by citing WCAT decisions and Court decisions supporting me.