May 232019
 

By Gerald

Your response as to who has the burden of proof

(Read the response: Page One Page Two)

Dear Mr. Robinson;

While I appreciate the response from you as to who has the burden of proof in the workers compensation system, I question your response. As you know or should know, I believe in total transparency in any of my communications as there is nothing confidential nor should there be with any correspondence specific to WCB issues so I will send your response to all of my many e-mail contacts. From the FPO website your CV states, https://fpoalberta.ca/about-us/fair-practices-commissioner/ 

it would appear that you are somewhat qualified in administrative law but have no experience or background in administrative law that is specific to workers compensation administrative law that is vastly different than other administrative laws. As you know or should know, adjudication of claims is based on an inquiry system, not an adversarial system and therefore the burden of proof both for and against is on the “Board”.  Unfortunately for workers, adjudication is and has been based on an adversarial system rather than an inquiry system which is and always has been illegal. Your reply that the FPO does not provide legal advice is concerning as if the FPO is to assist workers and employers, then it is your responsibility to ensure that the correct method is used and understood by workers and employers who must be aware of who has the burden of proof both for and against in an inquiry based system unless you are concerned that if this was common knowledge that the FPO would be redundant and you all would lose your jobs. Is it thus better for you to keep workers and employers in the dark than to enlighten them with what should be common knowledge. 

Alberta’s workers compensation system is over 110 years old and from the time that the system first began, every one filing a claim should have known who has the burden of proof. In criminal law, every one knows that the burden of proof is on the Crown. In civil law the burden of proof is usually on the plaintiff although in some civil claims the burden of proof can be shifted from the plaintiff to the defendant according to the Supreme Court of Canada. It is grossly illogical to have a system that has been in existence for 110 years and you, WCB, DRDRB and the Appeals Commission do not know who has the burden of proof when the most important question in any legal system is who has the burden of proof.

Unquestionably, the determination of who has the burden of proof both for and against is the most crucial or one of the most important part of the adjudication process. Had this issue been determined decades ago, there would have never been any need for presumptive status for first responders. In every claim, as long as a claim remains in a neutral status, presumption takes effect and the benefit of doubt is historically always to have gone to the worker which is the way it was supposed to happen but because adjudication some how over the years took on an adversarial standard where the worker had to prove a work related injury or disease,  the benefit of doubt went to the “Board”. 

If a person reviews WCB policy 01-03 Part I Int. 3, the policy states that a worker does not have to provide any proof beyond a reasonable doubt. In an inquiry based system a worker is not required to provide any proof, that is the sole domain of WCB according to the WCA Section 17 (1). Policy 01-08 Part I specific to new evidence. What new evidence? If the burden of proof is solely on WCB and they have performed a thorough investigation, there should not be any new evidence and any new evidence should result in disciplinary action against an adjudicator who was not responsible for gathering the evidence. Taking this further, in the Appeals Commissions Practice Guidelines #5 Content J specific to new evidence that is presented to the Appeals Commission for reconsideration of an original Appeals Commission decision. What new evidence are they  referring to as if the system is supposed to be working according to plan and WCB has done their due diligence by investigating and gathering the facts, at no time should there be any new evidence. It is grossly illogical for the Appeals Commission to deny a reconsideration based on their belief that the worker has the burden of proof and with due diligence the evidence that a worker has provided now could have been presented at the earlier Appeals Commission hearing. Being that gathering of the facts is exclusive to WCB, it is illegal for a worker or an employer to gather the facts.

As you know or should know, the legislature has through legislation enacted the WCA that provides “exclusive jurisdiction” (Refer to Section 17(1) of the WCA) whereby only WCB is legally entitled to investigate and gather the facts and this is explained in WCB policy also by referring to WCB Policy (02-01 Part I) which I request that you read. For your information, the Ombudsman has already determined this issue and so did the Court of Queens Bench. The only problem is that WCB, DRDRB and the Appeals Commission are not complying with the WCA and WCB Policy which it is your responsibility to advise the Ombudsman or the Justice Minister to direct that WCB, DRDRB and the AC comply with the WCA and WCB Policy by placing the burden of proof both for and against solely on the Board. Of course no one makes these shysters and gangsters do anything as witnessed by the fact that despite the fact that the Supreme Court of Canada determined that chronic pain must be recognized and workers diagnosed with chronic pain must receive the same compensation benefits as workers who do not have chronic pain but receive compensation benefits which almost 20 years later they are still not in compliance.

As a public body that is set up to assist workers and employers, in order to assist and represent them, it is your duty to ensure that all workers and employers are aware that neither the worker or the employer has any burden of proof in an inquiry based system rather than passing the buck to the Ombudsman or the members of the legislature. If necessary, when the FPO is aware that WCB, DRDRB and the Appeals Commission are not in compliance with the law, that you contact the Justice Minister and have the Justice Minister direct that WCB, DRDRB and the Appeals Commission to comply with the law. Other than that, the FPO is another useless body created by Government. Have a nice day!

Mar 272019
 

By Gerald

This is a major problem in most or all workers compensation systems.

Pervasive Rate of Misdiagnoses a ‘Silent Cost Driver in the Insurance Industry’



Sarasota, FL (WorkersCompensation.com) – Getting the right treatment for an injured worker at the right time improves outcomes and reduces costs. However, an incorrect diagnosis sends the claim in the wrong direction from the get-go. Inappropriate treatments and/or medications and long term disability often result when the injured worker’s condition is misdiagnosed.

The problem of misdiagnosis is pervasive. But that can be changed. Combining the talents of physicians with the analytic power of artificial intelligence can lead to better and faster recoveries for the worker and lower costs for the employer/payer.

Misdiagnosis

“Getting the right diagnosis is crucial because it’s the starting point for every healthcare decision made with that patient,” said Michael Best, M.D., an orthopedic surgeon and Owner/CEO of The Assessment Centers and Founder and Chief Medical Officer of Clinical Solution Decisions. “The rate of misdiagnoses is exceedingly high.”

Best joined Christopher Brigham, M.D., consultant to Clinical Decision Solutions and Senior Contributing Editor for the AMA Guides to the Evaluation of Permanent Impairment, Sixth Edition, for a recent webinar on Assuring Accurate Diagnoses.

When asked, ‘What is your assessment of the diagnoses that are incorrect?’ a majority of the webinar attendees — over two-thirds — said they believe diagnoses are incorrect at least 20 percent of the time.

“If we don’t have a correct diagnosis how to do we do appropriate management, appropriate treatment or if we’re using resources such as ODG for disability duration guidelines?” Brigham asked. “We have to have an accurate diagnosis to start.”

The rate of misdiagnosis has been identified in several studies over the years:

  • The University of Pennsylvania. A study conducted in 1998 was given to both medical and surgical residents who had graduated from 37 U.S. medical schools. “The shocking statistics show that even though the passing grade only took 73 percent, 87 percent of the medical residents failed and 82 percent of the surgical residents failed,” Best said. “If 85 percent of physicians got either a D or an F on this test and the American Medical Association says there are 1.1 million physicians in the U.S., does this really mean that almost 900,000 physicians in the U.S. are incompetent in making musculoskeletal diagnoses?”
  • Mayo Clinic. A 2017 study showed 21 percent of patients were misdiagnosed by primary care physicians; a 2012 review of autopsy findings noted a 26 percent rate of misdiagnoses; and a study of ICU or ER cases showed misdiagnoses rates ranging from 20 percent to 40 percent.
  • Institute of Medicine. A 2015 study called Improving Diagnosis in Healthcare showed that misdiagnoses led to between 80,000 and 120,000 deaths annually in the U.S.

A plethora of studies over the last 15 years have shown little reduction in the rate of misdiagnosis.

“If the Bureau of Labor Statistics indicates that 2.8 million non-fatal work injuries occur per year, and there’s a misdiagnosis rate of 25 percent, than that means that 700,000 misdiagnoses occur in work comp each year,” Best said. “That’s pretty bad.”

Misdiagnosis has become “a real silent cost driver in the insurance industry,” Best said. “Misdiagnosis creates a waste of claims dollars, creates serious internal inefficiencies in the adjustment process, and harm to the individual patient. Consequently, there are not only problems just to the patient, the cost factor continues to go up because of the waste that misdiagnosis causes to the insurance industry.”

Causes

Part of the reason for misdiagnoses relates to the inability of physicians to constantly stay abreast of the latest medical knowledge. An estimated 2,500 articles are published weekly on factors that should be addressed by primary care physicians. “No physician can read 2,500 articles per week,” Best said. The vast majority of physicians spend less than five hours per month reading medical journals, even though medical information doubles every five years.

Another problem, he said, is that physicians have an inaccurate perception of their own abilities to make accurate diagnoses. One study, for example, found that physicians believe there is a 5 percent misdiagnosis rate but only 1 percent admit to having made a misdiagnosis themselves within the last year.

“So it’s everybody else’s problem, unfortunately,” Best said. “We’re going to have to change the mindset of physicians in this area.”

Solutions

In addition to addressing issues of misdiagnosis, ensuring the use of evidence based treatment is also key to better outcomes and lower costs. A study by ODG, for instance, found both claim duration and medical costs were lower when evidence based medicine was used. But only about 20 percent of the knowledge that providers use is evidence-based, according to a researcher at the University of Pittsburgh.

Artificial intelligence and other technologies can make a significant impact on the diagnosis and treatment of injured workers. Best said the idea of using AI is not to replace the physician, but to allow her to do her job better, including spending more time with patients.

“I think one of the things we as a society and all the stakeholders have to say is that what we’re doing in terms of paying for healthcare right now is wrong,” Brigham said. “We’re overpaying for procedures, we’re not paying for the time that physicians really need to spend with the patient, — listening, asking the right questions, understanding what the story is, and teaching. So one of the things I’d say is we want to use these to make us more efficient but we have to stand firm that we need to be providing physicians and other healthcare providers with the adequate time to really do what they should be doing — caring for that patient.”

Best said an example of an AI program he’s developed allows physicians to spend 56 percent more time with patients than the norm. Called Clinical Decision Software, it uses an interactive touch screen that poses questions specific to the complaints of the patient as the provider inputs the information.

“You move through the process like a physician in training,” Best said. “It improves diagnostic accuracy and recommends the appropriate state-of-the art evidence-based treatments.”

Each ‘answer’ has an evidence-based numerical ‘weight’ — appended to offer the end user the five most likely diagnoses, he explained. The touch screen pinpoints where the pain is, so the weighted response further delineates the diagnosis. Finally, standard physical examination procedures are mandated, relative to the patient complaint.

“Our results with a 13 hospital chain were remarkable,” Best said. “We worked with them for a year and had a 75 percent reduction in their cost of workers’ comp.”

The intake is performed by a medical assistant. “We strongly believe that the physician no longer needs to be the record keeper,” he said “that’s just useless time spent by him.”

Mar 272019
 

Note from Gerald: I have been privileged to attend a number of webinars with Judge Langham as a very informed guest and attended by numerous doctors and lawyers, all experts in the workers compensation system. Most agree that the grand bargain is no longer a bargain for workers and has not been for quite some time. Several years ago I referred to to the workers compensation systems as being an antiquated system that does not work in the modern world and this verifies what I said years ago. The people we elect for public office are not visionaries that can envision a modern day approach to how the system should work for the benefit of workers and employers. Obviously the biggest problem with the antiquated system is determining causation. When workers compensation was forced onto workers by Government without any checks or balances, compensation was specific to acute injuries which had an obvious causal relation as opposed to hundreds or thousands of diagnosed work related injuries, disease and mental illnesses in the modern world that are denied based on unqualified doctors who provide false and misleading medical opinions that are reviewed by unqualified adjudicators who determine whose medical opinion is more compelling.

Workers compensation has to be the worst disability insurance that a worker would ever be exposed to. This is a system that destroys families, causes suicides.I have yet to talk to any worker that has not said that if they believed if they could get away with it, they would kill the people that ruined their lives. A modern day system would completely eliminate causation and provide disability insurance without establishing a cause being that no one can ascertain what risk factors are present in the work environment. I have yet to review a claim where it did not involve 15-20 doctors or more with none of them being experts as causation is determined by science not by guessing the cause. Unfortunately even medical science is wrong more times than they are right. 

Judge Langham is bang on that our politicians have created a two tier system where firefighters are treated differently than other occupations without any evidence to support that firefighters are any more at risk for cancers and heart attacks than any other occupation. Epidemiological studies determining risk was based on reference to the general population which according to the National Academy of Science is not a valid reference. If an epidemiological study were to take any occupational group and reference that occupational group to the general population many occupational groups would have a much higher risk factor than firefighters for cancer or heart attacks. Assembly line workers for example who perform repetitive high force work have 10 times the risk as a firefighter specific to musculoskeletal disorders, yet there is no legislation providing presumptive status to assembly line workers for musculoskeletal disorders. A recent study has determined that driving heavy machinery such as tractors, combines, large trucks results in vibration that causes back injuries, yet there is no presumptive status for truckers, farm workers for back injuries. Studies have also determined that heavy manual work over the years contributes to degenerative disc disease and yet DDD is not presumed to be contributed to by years of heavy manual work. Farm workers who use pesticides, herbicides and insecticides on a regular basis have a much higher risk than fire fighters especially now that Roundup has been determined to be a dangerous carcinogen. It is about time that our politicians brought in a system that protects workers and stops punishing them for injuries or diseases that they had no control over. 

The modern system I would envision would be a system that would guarantee acceptance of a claim by not including causation which would reduce costs by at least 50% or more especially the medical component that would reduce or totally eliminate doctors who do not have a doctor patient relationship, have no duty of care, have no responsibility for their medical opinion, can be subpoenaed but never are and cannot be sued for providing false and misleading medical opinions.

Source: https://www.workerscompensation.com/news_read.php?id=32030

Workers’ compensation cancer presumptions are not new. This blog has addressed the topic some with Cancer Presumptions for Firefighters (2014), Firefighters Seek to Change Cancer(2016), and Cancer Presumption in Australia (2016).

There is a bill introduced to bring a cancer compensation process to Florida. Senate Bill 426(“SB426”) would define “cancer” to include the specific maladies of “Bladder cancer, Brain cancer, Breast cancer, Cervical cancer, Colon cancer, Esophageal cancer, Invasive skin cancer, Kidney cancer, Large intestinal cancer, Lung cancer, Malignant melanoma, Mesothelioma, Multiple myeloma, Non-Hodgkin’s lymphoma, Oral cavity and pharynx cancer, Ovarian cancer, Prostate cancer, Rectal cancer, Stomach cancer, Testicular cancer, (and) Thyroid cancer.”There are those who are referring to this as a “cancer presumption,” but that may not be an accurate description. This bill does not interact with Florida workers’ compensation, but is instead “an alternative to pursuing workers’ compensation benefits under chapter 440.” It is available if a firefighter (or former firefighter for up to 10 years) is diagnosed with cancer and

“has been employed by his or her employer for at least 5 continuous years, has not used tobacco products for at least the preceding 5 years, and has not been employed in any other position in the preceding 5 years which is proven to create a higher risk for any cancer.”

This is not an entirely new subject. Several states have workers’ compensation firefighter cancer presumption laws. According to Pennsylvania Judge David Torrey, thirty-three states have addressed firefighter cancer in some way.Meanwhile, officials in Ontario, Canada are analyzing work cancer claims in a more holistic and inclusive manner. The “director of the Occupational Cancer Research Centre at Cancer Care Ontario” has undertaken to study “workplace-related cancer for the Ministry of Labour.” TheRecord.com suggests that cancer claims are “a contentious issue today.” It notes that more “than a century ago” workers compensation laws were enacted, and their effect is a prohibition on employee lawsuits against their employers.The Research Centre Director contends that workers’ compensation was not designed for the modern world. He claims that it is structured based upon knowledge founded “in an era long before occupational disease was understood.” Therefore, he advocates that workers’ compensation needs to “to adapt to the hazards” to which people are exposed at work. He opines that the various jurisdictions’ systems have not evolved in parallel with medical science.TheRecord.com sees an example of this in “former rubber workers.” It notes that some of these have unsuccessfully sought workers’ compensation benefits “for cancer and other diseases,” only to suffer “long delays, road blocks and frustration.” The Director contends that compensation for such disease “should not be an adversarial situation.” Instead, compensation “should be a right to people.” TheRecord.com says that the research the Director is performing will be used by province officials to reconsider rubber workers’ claims for occupational disease between 2002 and 2017.In some cases, the evidence around specific workplace carcinogens isn’t new at all, but the compensation system has still struggled to adequately respond to the problems it causes for workers, he said. He contends that “our knowledge of what causes cancer at work improves every year,” and that this body of evidence to which he refers might be used to support claims for cancer or other occupational disease.The Director “believes the majority of occupational diseases are never reported.” Despite that, the story says that in an eleven year period, the province workers’ compensation system “allowed about 125,000 occupational disease claims which totaled more than $950 million in benefit costs.” Thus, almost a billion dollars (presumably Canadian dollars, which would convert to about $717 billion U.S.). But TheRecord says “that’s just scratching the surface of the problem.”The publication and the Director seem to be advocating for physician education in order that such allegedly work-related conditions are diagnosed as being work-related. Secondarily, there seems to be advocacy of a claims process that is geared toward compensating more such claims after they are “assessed based on the latest science.” There is no description provided of what this science is, however. Perhaps that will all become more clear after the next year of the Canadian study. A recent Canada British Columbia news story draws comparisons between firefighters and other employees.In the mean time, Florida will not be alone in a legislative discussion of cancer this year. WorkCompCentral reported recently that Montana is considering a sweeping presumption bill for firefighters. It reportedly “lists a dozen conditions that would be presumed compensable when diagnosed after a specific period of employment.” This bill also addresses cardiovascular disease.The same day, WorkCompCentral reported that Maryland is considering a bill to expand its firefighter cancer presumption. This would “add bladder, kidney or renal cell cancer to the list of diseases presumed to be compensable for firefighters.” The article notes Maryland presumptions already “include throat and lung (cancer) because of the smoke conditions.”And, Texas is reportedly considering legislation to clarify its firefighter presumption law. WorkCompCentral reports that the law is considered “murky.” According to the story, “insurers say (the law) limits firefighters to just three types of malignancies, but fire workers say already includes most types of cancer.” Employees are seeking better enforcement of compensability decisions, and employers are seeking clarity of the law’s scope.Recently, a California jury awarded $29 million to a woman for cancer it related to the use of baby powder. The American Cancer Society notes that some talcum powder contains asbestos, and warns that inhaling asbestos-laced powder can cause cancer. Its’ website is more circumspect regarding talcum powder and cancer: “The evidence about asbestos-free talc is less clear.” Thus, there seems some potential for debate regarding this causative link.The Environmental Protection Agency has recently banned the sale of Methylene Chloride, according to WebMD. It notes that this chemical compound can cause carbon monoxide poisoning, and “over the long term it increases the risk of cancer.” Despite those warnings, the EPA ban only affects consumer purchasing. The chemical will still be obtainable for commercial applications. It is estimated that some “32,000 workers use methylene chloride at work. New Jersey attorney Jon Gelman has addressed this substance in his blog.Back in California, The Telegraph reports Bayer (which purchased Monsanto in 2015) was found responsible by a jury that concluded “glyphosate-based weed killer Roundup caused non-Hodgkin’s lymphoma.” Notably, the plaintiff had “sprayed the herbicide on his property for decades.” According to the Chicago Tribune, there is disagreement about glyphosphate. On one hand “Monsanto says studies have established that Roundup’s active ingredient, glyphosate, is safe,” and “many government regulators have rejected a link between cancer and glyphosate.”

The manufacturer claims that “hundreds of studies have established that the chemical is safe.” However, the jury concluded otherwise, finding “using Roundup was a significant factor in his cancer.” The recent trial there was in federal court, suggesting that the science that was presented by both plaintiff and defense was subject to the Daubert standard discussed in Dissing DaubertDaubert Better Explained, and Daubert, We Barely Knew Ye.Thus, there are questions about what does and does not cause cancer, causation issues. There may be issues as to how long after some exposure cancer will appear, latency issues. There may be occupations in which exposure to various chemicals and compounds is more or less likely. There may be variables such as the degree of exposure, intensity of exposure, use of safety equipment, and more. In total, there may be more questions about cancer than answers.The legislative efforts seem focused only upon firefighters, and yet a great many questions appear unanswered. Is there justification in tiered recovery systems that treat some workers differently than others? Is there recent science, as suggested by the Ontario Director, that antiquates existing workers’ compensation decision making? If so, where is that science? So many questions.

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.

Mar 142019
 

By Gerald

Interesting that the Alberta Human Rights Commission would defer to any decision made by WCB or the Appeals Commission!

In Kebede v. SGS Canada Inc., 2019 AHRC 3the Alberta Human Rights Tribunal (the “Tribunal”) recently dismissed a portion of a human rights complaint on the grounds that the issue was already decided by the Alberta Workers’ Compensation Board (“WCB”).

The Complainant filed a human rights complaint asserting, among other things, that he suffered racially-based harassment and discrimination during the course of his employment with SGS Canada Inc. (“SGS”).

The Complainant sought compensation under the Workers’ Compensation Act for psychological injury that he alleged he suffered as a result of the same alleged racially motivated harassment and discrimination. The Complainant’s claim for compensation was denied by the WCB as it found no objective confirmation of work-related events or stressors that supported the Complainant suffering from “a chronic onset psychological injury arising out of and occurring during the course of employment.”

SGS sought the dismissal of the human rights complaint on the basis of the WCB’s denial of the Complainant’s WCB claim.

The Tribunal found that it could exercise its discretion to dismiss a portion of the complaint on the basis of issue estoppel as it found that:

  1. the same question was decided by the WCB;
  2. WCB’s decision was final; and
  3. the parties to the WCB’s decision were the same as in the human rights complaint.

The Tribunal exercised its discretion to dismiss the racially-based harassment and discrimination portion of the complaint as the Tribunal found that dismissing that portion of the complaint would not create unfairness. Specifically, the Tribunal noted that there was no new evidence or evidence of unfairness in the adjudication of the WCB claim.

This decision serves as a useful reminder of the Alberta Human Rights Commission’s powers under s.22 of the Alberta Human Rights Act to, at any time, refuse to accept a complaint on the basis that the complaint is one that: (i) could or should more appropriately be dealt with; (ii) has already been dealt with; or (iii) is scheduled to be heard; in another forum or under another Act.

This provision of the Alberta Human Rights Act may be particularly helpful to employers given the current delay in Alberta human rights matters proceeding to a hearing and the likelihood that another forum will issue a decision well in advance of an adjudication of the human rights matter. Further, dual proceedings may become more frequent given the increasing overlap between WCB and human rights matters, the increase in harassment related concerns in the workplace, and the added jurisdiction of Alberta Occupational Health and Safety over harassment in the workplace.

Mar 072019
 

By Gerald

Interesting law suit going on across the border specific to presumption. In the U.S. all State workers compensation systems determine claims based on an adversarial system meaning the burden of proof is on the worker, yet most States enacted laws providing presumptive status for firefighters and extended presumptive status to other first responders, prison guards and nurses. Obviously this is discrimination when certain individuals are treat differently than other individuals and the Federal Government is now fighting the State Government. Presumptive status has opened up a can of worms all throughout North America. Question is, how can a State provide presumptive status to firefighters, first responders, prison guards and nurses and not provide presumptive status for workers employed at a nuclear weapons facility who would have far higher the risk of cancers than any firefighter. 

In Canada, we are supposed to adjudicate claims based on an inquiry system where the burden of proof is on the “Board”. The “Board” must not only determine if there were hazards in the work place, they must also prove that a worker was exposed to a hazard outside of the workplace and the time and place that the worker was exposed to the hazard. Because a worker always receives the benefit of doubt and if WCB cannot prove contrary, the claim must be accepted.  

Rather than providing special treatment for firefighters, first responders and continuing to add mote workers to the list of preferential treatment, why not simply enact legislation giving all workers presumptive status and force the “Board” to prove an injury or disease happened outside of the workplace which would make more sense than to having workers having the burden of proof without the medical and financial ability to provide evidence to support their claims. 

Gerry Miller  

DOL Files Suit Against Benefits For Ill Hanford Workers; State Considers Amending Law



Hanford, WA (WorkersCompensation.com) – The federal government is worried that a new law in Washington state would give workers at the Hanford nuclear reservation easier access to workers’ compensation than other employees in that state. Meanwhile, state legislators are contemplating an amendment to the law that could increase the number of workers eligible for benefits.

Last week, the Department of Justice laid out its case against the new state law, claiming that the 100,000 past and current workers at the nuclear weapons facility would have an easier time getting workers’ compensation, at a much greater cost to tax payers.

As previously reported in WorkersCompensation.com, the law, passed last year, makes the presumption that exposure to chemicals at Hanford caused illnesses in the employees there, up to and including cancer.

Hanford is considered one of the “most radioactive waste sites” in America covering 200 square miles of contaminated groundwater and including 53 million gallons of liquid waste, 25 million cubic feet of solid waste. The site was a facility for enriching plutonium during World War II and the Cold War, and is where more than 60,000 nuclear warheads were made. The facility closed in 1987.

The Department of Energy, which is responsible for the country’s nuclear facilities, is a self-insured entity and has contracts to cover six current contractors and seven subcontractors that employ workers at Hanford, as well as 61 former Hanford contractors and subcontractors, with workers’ compensation benefits.

The new law would increase the illnesses covered and could be so loosely defined that workers could be compensated for common illnesses, according to the federal government’s documents. The new law could be interpreted to cover illnesses like asthma, chronic bronchitis, Parkinson‘s disease, Alzheimer’s disease and strokes, the DOJ said.

For other workers in the state, a clear link between the illness and their work would have to be shown. Under the new law, work at the nuclear facility would be presumed to be the cause.

Also, the new law allows for claims that had been denied to be reviewed under the new and easier requirements.

The government did not object as the state legislature debated the law which went into effect in June 2018. But in December, the federal government asked a judge to overturn the law as a violation of the Supremacy Clause of the US Constitution – which prohibits states from regulating the federal government.

In its initial suit, the federal government also said the law puts the burden on the federal government to prove that the workers’ illnesses were NOT caused by their work at Hanford, and that the law discriminates against the federal government.

In filings on Friday, March 1, the federal government asked Judge Stanley Bastian to rule on the case prior to its going to trial. The state of Washington is expected to answer the suit and ask that the federal government’s claim be dismissed by March 22.

According to the lawsuit, prior to the law taking effect, the DOE received 5 or fewer claims per year for cancer, court documents said. Since the law took effect, the DOE has received 50 claims for cancer. The department said that 92 claims had been filed under the new law, and most of them would have been denied prior to the new law.

Penser North America, the administrator for the DOE’s workers’ compensation program, said it had referred 41 claims to the state’s Department of Labor and Industries. Of those, 31 were recommended for approval, while 10 were not. Of those 10, eight were approved by the DLI, Penser said in the court filings.

While the DOE can object to those cases, the level of proof to deny them was high, Penser said in court documents.

“DOE must obtain expert witnesses at a significant cost, and must search for, review and organize large volumes of medical documentation,” it said.

Advocates for nuclear workers said the government’s case may not apply

“The suggestion that the supremacy clause of the constitution should prevent the implementation of this program is certainly suspect as the federal government has chosen to employ private contractors at these facilities,” said R. Hugh Stephens, an attorney who specializes in workers’ compensation for former federal employees who worked at nuclear facilities. “These are not typically federal employees and federal employees are not qualified for this compensation, if I am not mistaken, but must apply for federal workers compensation through the US Department of Labor (DOL).”

Stephens also told WorkersCompensation.com he objected to the government’s burden of proof.

“While the government would suggest that its burden is too great, it is useful to remember that many of these workers were exposed to radiation and other hazardous substances without their knowledge or consent,” he said. “This is an ultra-hazardous activity to which different rules should apply. Most of these workers did not become injured after lifting a heavy box or lose their hearing because they were posted near a loud machine. These workers cannot breath because of exposure to beryllium (a dangerous metal), or have cancer caused by exposure to radiation, and those with hearing loss suffer from nerve damage due to exposure to toxic solvents. The shoe is certainly now on the other foot as workers used to struggle to prove their claims in the face of records lost by the DOE or its contractors.”

According to the DOE, if the judge ruled in its favor, sick workers and their survivors would be covered by the Energy Employees Occupational Illness Compensation Act (EEOICA) program administered by the US Department of Labor.

Stephens, whose clients fight sometimes years to get compensation through the program, said the government’s record should discourage a judge from ruling in the DOE’s favor.

“There is a long history of the DOE opposing rightful claims by hard working residents of Washington State. These issues are described at length in the EEOICA. While the Washington State legislature appears to have the upper hand in this dispute with Washington, DC, the federal government and its history of poor treatment of these workers severely undermine its position in this dispute.”

Amendment Considered

Legislation being considered in the state legislature would modify the law. “The presumption established for cancer is amended to also apply to any active or former USDOE Hanford site worker who has cancer that develops or manifests itself and who was not given a qualifying medical examination because a qualifying medical examination was not required,” stated an analysis of HB 1490. The bill was passed in the state House and is now before the Senate Labor & Commerce Committee.

Feb 282019
 

By Gerry

Here we go again. This time it is 911 Operators who will be receiving presumptive status. This idea in politicians heads that they have to keep adding more and more occupational groups to the list questions the mentality of people. Simply give all workers presumptive status and let WCB  prove contrary which is the way that workers compensation was first meant to be since 1908. It must be remembered that in the U.S. they adjudicate claims on an adversarial system as opposed in Canada which is supposed to be an inquiry system with the burden of proof on the “Board” both for and against but at some time over the course of a hundred years, the inquiry system become an adversarial system which placed the burden of proof on workers with WCB representing the interests of employers during the appeals process and on Judicial Review.

Few states include 911 operators in first responder presumption cover

Angela ChildersFebruary 27, 2019  REPRINTS

RegulationWorkers Comp CoverageWorkplace Safety

PTSD 911 first responders

A bill adopted by the Idaho Senate on Feb. 12 to allow post-traumatic stress disorder benefits for first responders under the state’s workers compensation system is drawing on a trend in presumption laws related to mental injuries, but is fairly unique because the proposed legislation includes 911 operators among those who can seek PTSD coverage.

Idaho’s move is in line with the more than 12 states with laws in the books for first responders who are diagnosed with PTSD, and is in line with the emerging trend of presumption laws that do not require that a mental injury be associated with one event. Minnesota, Florida and Washington passed such laws for first responders in 2018.

Most laws provide details on who is eligible — naming “peace officers,” “law enforcement officers” or “firefighters.” Less common is the inclusion of those who answer emergency calls, such as 911 dispatchers. Minnesota’s new law lists “public safety dispatcher” among those eligible while Florida’s law is less specific, requiring that the employees “witness” tragedy and later lists “hearing” an event —but never names dispatchers.

Brian Fontes, the CEO of Alexandria, Virginia-based National Emergency Number Association, said he applauds legislation that includes 911 dispatchers because it “reflects the reality of the job. These folks, like police and fire, are subject to the effects of PTSD and by having it in the law, it allows them, in essence, the same remedies,” he said.

A Northern Illinois University study published in the Journal of Traumatic Stress in 2012 found that the rate of PTSD among 800 surveyed emergency telecommunicators was between 18% and 24%.

Dr. Joel Fay, a retired police officer and psychologist and co-founder of the First Responders Support Network in Napa County, California, said he doesn’t see why 911 dispatchers would be excluded from this type of legislation.

“While their lives might not specifically be in danger … they have a great deal of exposure to trauma,” he said. “Most of it might be vicarious, but some is really direct when you hear what’s going on and can’t do anything to stop it.”

Feb 282019
 

Office of the Ombudsman

801- 6th Ave SW

Calgary, Alberta

T2P 3W2

Feb. 26, 2019

On behalf of Mr. Smith, I Gerald Miller wish to file a complaint against the WCB Board of Directors that has resulted in defrauding both workers and employers out of millions of dollars due to an inappropriate enactment of policy either by ignorance, misfeasance, abuse of power or an act of bad faith.

Compensation in workers compensation is supposed to be determined based on the difference between pre-injury earnings and post-injury earnings to determine a loss of earnings. Prior to Jan 1, 1995, loss of earnings was determined by using impairment ratings as a direct method of rating a loss of earnings which was found to be illegal by three different courts in three different provinces, Alberta (Penny case), Nova Scotia (Hayden case) and the Yukon, yet because of the WCB BOD enactment of policy specifying that loss of earnings was to be determined by the direct use of impairment ratings in assessing loss of earnings prior to Jan 1, 1995 this has resulted in defrauding employers and workers out of millions of dollars.

There is also the possibility that policy enacted by the WCB BOD did not direct that impairment ratings be used as a direct method of determining an earning loss. There is nothing in policy or the WCA that directs that impairment ratings be used directly as a method of rating a disability (earning loss) or that loss of earnings is derived by multiplying an impairment rating by net earnings to determine a loss of earnings so how or why did this happen. Conclusive proof that impairment ratings have nothing to do with a disability (loss of earnings) is supported by the fact that prior to one second before midnight of Jan 1, 1995 impairment ratings were used to determine an economic loss by multiplying net earnings by an impairment rating and one second after midnight of Jan 1, 1995, impairment ratings were used to determine a non economic loss questioning the mentality of the people interpreting how an economic loss (loss of earnings) should be calculated.

On review of WCB Policy 04-04 Part I it states in part; WCB provides permanent disability benefits to the worker for any measurable permanent clinical impairment “AND” for any impairment of earning capacity meaning that there are two awards referred to as dual awards. Proceeding onward, the policy then states; a worker is considered to have a permanent disability when a work injury results in a permanent clinical impairment, an impairment of earning capacity due to permanent compensable work restrictions or “BOTH” Reading to this point, there is no mention of multiplying net earnings times an impairment rating. Reading further. When an accident occurred before Jan 1, 1995 WCB provides the following permanent disability benefits: a permanent disability award in the form of a pension, to compensate the worker for the permanent clinical impairment “AND” assumed loss of earnings which results in two awards, one award is a pension for the permanent clinical impairment and another award for an assumed loss of earnings. On further analysis, there is nothing to indicate that net earnings have to be multiplied by an impairment rating to determine a loss of earnings, although upon further analysis of Policy 04-04 Part II Application 5, Question 1 and 2 which upon analysis does attempt to explain how an earning loss is calculated by using impairment ratings but confuse the issue by equating a disability(loss of earnings to an impairment. You cannot call a disability an impairment or an impairment a disability any more than you can call a cat a dog or a dog a cat as both words are totally different. Regardless of how the BOD or WCB attempt o explain how to assess a loss of earnings, you cannot determine a loss of earnings by multiplying 90% of net earnings by an impairment rating unless the impairment rating was converted to a disability rating and then multiplying the disability rating by 90% of net earnings. For example if a worker was assessed a 20% PCI rating, this would have to be converted to a disability rating by factoring in each individuals unique characteristics such as their skills, education, job history,adaptability, age, environmental requirements and modifications. In other words you cannot equate an impairment rating to a disability rating without taking all the factors of an individual that are unique to the individual into consideration.

Impairment ratings have no correlation to earnings at all as an impairment rating excludes work as a component in the assessment of an impairment. Impairment ratings measure a workers ability to perform simple basic activities of daily living which are presented in Table 1-2 of the AMA Guides. Impairment ratings are assessed based on such medical conditions that involve minor difficulties in urinating, defecating, brushing teeth, eating getting an erection, ejaculating, orgasm, sleeping etc., which has got nothing to do with work or calculating an earning loss. Clearly using impairment ratings as a direct method of determining an earning loss questions the mentality of the WCB BOD and the people who adjudicate claims who obviously never did question how or why impairment ratings could be used when an impairment rating had nothing to do with work, a disability or loss of earnings. Note: there is nothing in the WCA that directs that WCB pay lifetime pensions for an impairment. The WCA does direct that WCB pay lifetime pensions based on a disability (loss of earnings) In fact, prior to 2018, there was no legislative requirement for WCB to pay any award for an impairment as that remained discretionary prior to 2018. Obviously if you multiply a PCI percentage rating times any numerical figure, the result would be equal to an impairment award not a disability (loss of earnings) award. You do not multiply apples times oranges and expect to get a banana.

On Feb.20, 2019, I attended and represented Mr. Smith on Judicial Review which was specific to the illegal use of impairment ratings being used as a direct method of rating a loss of earnings. It was acknowledged by the Court, WCB Legal Counsel and the Appeals Commission Legal Counsel that doing so was not in compliance with the WCA and contrary to the directives of the AMA Guides that specified that the AMA Guides cannot be used as a direct method of determining a loss of earnings. The AMA Guides are very specific and states per verbatim; 

Impairment percentages derived from the “Guides” criteria should not be used as direct estimates of disability. Impairment percentages estimate the extent of the impairment on whole person functioning and account for basic activities of daily living, not including work. The complexity of work activities requires individual analysis. Impairment assessment is the necessary first step for determining disability.

It was agreed that the blame for the fraud was the WCB BOD and according to the WCA Section 6(a)(i) the WCB BOD has jurisdiction to enact policy determining compensation, thus adjudicators were forced by statute to support defrauding workers and employers. This then leaves only the Government who can direct that the WCB BOD rescind their pre Jan. 1, 1995 policy where impairment ratings were used illegally to determine an earning loss, re-adjudicate all claims prior to this date basing a loss of earnings on calculating pre-injury to post-injury earnings. Not doing anything would bring the administration of justice into disrepute.

Despite the directive of the AMA Guides, the WCB BOD enacted policy that resulted in using impairment ratings as a direct method of rating a disability that has resulted in criminal fraud as determined by the Calgary Commercial Crimes Unit after investigation into the illegal use of the impairment ratings being used as a direct method of rating a loss of earnings.

Being that this is a systemic problem, I have advised other workers to also file complaints. According to Section 27 of the WCA, the Ombudsman after an investigation can recommend to the Government that an injustice or hardship to a worker or workers has resulted and it most certainly has, the Government may direct the “Board” to pay the worker or workers from the accident fund or refer the matter to the Court of Queens Bench for an assessment of damages and to pay the worker or workers the amount of damages assessed.

An example of how the inappropriate or illegal use of using impairment ratings as a direct method of rating a loss of earnings resulted in defrauding workers was presented in the Judicial Review based on defrauding Mr. Smith entitlement to compensation using impairment ratings as a direct method of rating a loss of earnings. 

In 1988, Mr. Smiths pre-injury gross earnings were $18,469.02 . Referring to Appendix E of WCB policies, 90% of his net earnings according to Appendix E would be approximately $14,376.20. Because he was unable to work (total disability) he would have had zero earnings which should have resulted in a life time pension of $14,376.20 annually. By using impairment ratings (20% impairment rating) as a direct method of rating a loss of earnings rather than basing his pension on pre-injury earnings to post injury earnings, Mr. Smith inappropriately received $2875.24 net a year based on multiplying $14,376.20 by 20% resulting in defrauding Mr. Smith of $11,500.96 net annually from 1988 onward.

By using impairment ratings as a direct method of rating an earning loss, if a worker did not receive an impairment rating and had a total loss of earnings or a partial loss of earnings, a worker would not receive a lifetime pension as legislated in WCA Section 56 (11). (WCB defines a disability in terms of a loss of earnings) Using common sense and logic and the ability to read would result in any one knowing that one size does not fit all. An impairment rating of any percentage would result in a PPD (loss of earnings) anywhere from a 0% PPD to a 100% disability (PTD) depending on the unique characteristics of each individual as is explained in Chapter 1 of the AMA Guides.

As well as workers being defrauded, employers also were defrauded by using impairment ratings as a direct method of rating a loss of earnings. Using the same gross earnings as an example, a worker who did not have a loss of earnings but received a 20% impairment rating would receive $2875.24 annually for the rest of their lives, thereby defrauding employers by having to pay lifetime pensions even though the worker had no loss of earnings but would receive a lifetime pension because the worker had minor difficulties urinating, defecating, brushing their teeth, combing their hair, getting an erection, ejaculating, reaching an orgasm etc which are simple basic activities of daily living. Why would WCB force employers to pay workers with no loss of earnings lifetime pensions because they had minor difficulties urinating, defecating, getting an erection, ejaculating etc. Of course, employers when the accident fund is in a surplus situation, they receive dividends in the billions of dollars as opposed to workers who receive nothing and has resulted in Alberta employers having the lowest premiums in North America on the backs of workers and therefore probably should not be paid restitution.

Question is, why would the Alberta Government, knowing that impairment ratings cannot be used as a direct method of rating a loss of earnings, not have directed the WCB BOD to rescind the policy, re-adjudicate all the claims prior to Jan 1, 1995 based on the correct method of determining an earning loss which was by using a workers pre-injury earnings and compared to a worker’s post-injury earnings to determine an earning loss, especially after the Penny decision by the Alberta Court of Queens Bench and upheld by the Alberta Court of Appeal as well as the courts in Nova Scotia and the Yukon. This questions whether the Government were complicit in criminal fraud which would be reasonable to suggest.

I would suggest that all workers whose injuries occur prior to Jan 1, 1995 and had their PPD lifetime pensions calculated directly on impairment ratings file a complaint with the Office of the Ombudsman using this e-mail as a template which can be edited for each individual’s own use.

Gerald K Miller for Mr. J. Smith

Feb 282019
 

By Gerald

On Wednesday Feb.20, 2019 we attended a Judicial Review which resulted in the Court, WCB Legal Counsel, Appeals Legal Counsel  and I agreeing that the blame for using impairment ratings as a direct method of rating a disability was the WCB BOD who are responsible for enacting policies specific to how compensation is paid. The Judicial Review was specific to how workers and employers were cheated or defrauded by WCB prior to Jan, 1 1995 based on the WCB BOD enacting policy that has resulted in worker suicide, family poverty, family breakups and homicidal thoughts of killing WCB employees when in fact WCB, DRDRB and the Appeals Commission were simply complying with policy enacted by the WCB BOD. This case points out the fact that workers anger is misdirected by blaming WCB, DRDRB and the Appeals Commission for making decisions based on what was believed to be total ignorance or incompetence or deliberate attempt to defraud workers and employers. While some people may wonder why I am concerned with employers, my involvement with workers compensation is and never was as a worker advocate. My concern has always been fairness and well reasoned decisions by adjudicators. The Judicial Review did conclude with the agreement by all parties including the court that by using impairment ratings as a direct method of rating a disability besides defrauding workers resulted in defrauding employers who were paying workers life time pensions despite the fact that they had no loss of earnings, thereby increasing employers premiums determined by lay people (WCB BOD) who did not bother to read the first chapter, especially pages 4 to 18 of the AMA Guides which had they done this they would have most likely not enacted the policy equating an impairment to a disability.    

The adjudication of all claims are based on the WCA, WCB policy and WCB Regulations. The WCA and WCB Regulations are enacted by Government. WCB policies are enacted by the WCB BOD who are selected by the Alberta Government on the basis of having an equal number of the BOD representing workers, employers and the general public. The selection process is supposed to ensure that policies enacted by the WCB BOD are reviewed by the equal number of worker representative, employer representative and public representatives. How or why the WCB BOD enacted policy that used impairment ratings as a direct method of rating a disability whether this was done blatantly or maliciously or whether through ignorance or incompetence as the AMA Guides specifically states on page 13 per verbatim;  

Impairment percentages derived from the Guidescriteria should not be used as direct estimates ofdisability. Impairment percentages estimate the extent of the impairment on whole person functioningand account for basic activities of dailyliving, not including work. The complexity ofwork activities requires individual analyses.Impairment assessment is a necessary first stepfor determining disability.

It was determined by the Court that the WCB, DRDRB and the Appeals Commission were forced by statute to comply with the BOD who through the enactment of policy by the WCB BOD that impairment ratings must be used as a direct method of rating a disability even though the AMA Guides directed that impairment ratings not be used as a direct method of rating a disabilityIn affect the WCB BOD were totally blamed by the Court, WCB Legal Counsel and the Appeals Legal Counsel for defrauding workers and employers out of millions of dollars of compensation and no one could do anything about it because Section 6 (a)(i) of the WCA states that;

The board of directors

                             (a)    shall

                                     (i)    determine the Board’s compensation policy, and according to the Court, WCB Legal Counsel and the Appeals Commissions Legal Counsel left them with no option but to use impairment ratings as a direct method of rating a disability even though it was illegal and determined by three different provincial courts in Alberta, Nova Scotia and the Yukon to be illegal and that they must follow the policy enactment of the WCB BOD even if using impairment ratings used as a direct method of rating a disability is inappropriate and contrary to the WCA.  

An example of criminal fraud and supported by the Calgary Commercial Crimes Unit was presented to the Court through the enactment of the WCB BOD  policy where a worker who was totally disabled would receive a partial disability pension by using impairment ratings as a direct method of rating a disability rather than using pre-injury earnings as a reference to post injury earnings as they began doing on Jan 1, 1995 after the Court of Queens Bench and the Alberta Court of Appeal determined that using impairment ratings in determining disability was not in compliance with the WCA. For example: If a worker had a 20% PCI rating, this rating would be used to determine a disability rather than using pre-injury to post injury earnings to determine a loss of earnings. An actual case (my client) was presented to the court involving a 1988 accident where the worker’s 90% of net resulted in pre-injury earnings of $14,000 a year and his post injury earnings was zero dollars resulting in a $14,000 net loss of earnings annually. Rather than pay a worker a $14,000 loss of earnings, WCB, DRDRB and the Appeals Commission would through the BOD policy by using impairment ratings as a direct method of rating a disability would multiply $14,000 net earnings times 20% which equals $2800.00 which is $11,200  less than what a worker is entitled to resulting in defrauding a worker, forcing the worker into poverty, family breakups, suicides and intentions of killing WCB employees when they were simply following WCB BOD policy. On the other hand the same worker earning pre-injury earnings of 90% of net of $14,000 a year with no loss of earnings when multiplied by 20% would receive $2800 a year for the rest of his/her life despite having no earning loss thereby defrauding employers. Worse yet, workers who did not receive an impairment rating (0%) and had a loss of earnings would receive nothing as multiplying any amount of money by 0% results in zero loss of earnings.  Questionably also is why would WCB pay life time pensions to workers who have difficulty in defecating, urinating, brushing their teeth, combing their hair, getting an erection, reaching a orgasm and still are capable of working. That does not make sense but apparently it makes sense to the WCB BOD and embraced by WCB, DRDRB and the Appeals Commission and that is precisely what impairment ratings are used to assess. Impairment ratings have got nothing to do with the ability to work and determining an earning loss. This is the shit system that the Government has forced onto workers and employers and administered by a bunch of highly paid goof balls. A good example of this shit show can be found by reading the first Appeals Commission decision that comes up when you input “permanent clinical impairment” is Decision 2003-873. The worker was provided with a 8.13% PCI rating which these pathetic morons used as a direct method of rating a PPD of 8.13% and were paying him a lifetime pension despite the fact that he had no earning loss as stated in para 13. Why would any one pay this worker a lifetime pension when he had no loss of earnings. This basically results in defrauding the employer by having to pay a lifetime pension to a worker who had no loss of earnings and in reality received a windfall gift from WCB at the expense of the employer. On the other hand this same worker who may have been an older uneducated heavy manual laborer who could not adapt to performing other work would receive the same 8.13% PPD derived form a PCI and determined to be totally disabled but would receive only 8.13% of 90% of net earnings. These are the highly paid morons, supported by the Government who decide what workers are entitled to and employers are paying out when there is no loss of earnings.

In legal terms, the WCB BOD are or were acting in bad faith as well as misfeasance in public office by using impairment ratings as a direct method of rating a disability despite clearly written language in the AMA Guides specifying that impairment ratings cannot be used as a direct method of rating a disability. 

It is noted that the WCB BOD are not protected by legislation and are not entitled to making what may have been an honest mistake unlike WCB, the Appeals Commission and Medical Panels who are not culpable and cannot be sued. The WCB BOD can be sued as they have no protection under the WCA. Being that the WCB BOD are selected by the Government, it is apparent that the Government has to direct the WCB BOD to rescind their policy of using impairment ratings as a direct method of rating a disability prior to Jan 1, 1995, grandfather all claims and pay workers what they were and are entitled to. As well, workers who did not have any earning losses but received life time pensions, WCB must be directed to reimburse employers for any increases in their premiums or change their experience ratings to reduce their premiums. 

Questionably is if the Government does nothing it would question their sincerity to make changes and correct the wrongs to workers and employers. By correcting what was and is an abuse of power, bad faith and misfeasance in public office by the WCB BOD prior to an election, it may result in more people voting NDP rather than Conservative as all of this fraud occurred under the regime of the Conservative Government who must have known of the massive fraud but did nothing. Having had more experience than any one else over the last 30 years with the adjudication of claims, I remain convinced that the best thing for workers and employers is to have the Government simply abolish the entire system rather than have workers gullible to  believe that the system was established to assist them and then find out that this was nothing but a lie. That is a fallacy as the system has a history of destroying lives and the only reason it exists is to protect the employer from litigation as witnessed by a recent decision of a court in the U.S. awarding 14 million dollars to a worker’s estate after being diagnosed with mesothelioma and dying and whose employer did not have workers compensation coverage who had opted out. Had the employer been covered under workers compensation, the employer would not have been sued and the estate of the worker would have wound up with peanuts.

The Government by forcing workers and employers into one of the most corrupt organization in the world created the darkest day in human history. I say this because it is true. Prior to June 1, 1996, Case Managers would advise workers to apply for CPP disability benefits to increase their ELS. Workers would apply for CPP disability benefits believing that the additional pension would help them pay for the necessaries of life. When their application for CPP benefits was accepted, worker’s entire CPP disability pensions were immediately seized and their ELS was reduced or eliminated. Other provinces because workers pay 50% of the premiums, could legally claw back only 50% of workers CPP disability unlike Alberta who clawed back 100% of the CPP disability pension depositing this money in the accident fund, thus resulting in workers subsidizing employers in this province by reducing the amount of premiums employers pay. Although, WCB stopped clawing back CPP disability pensions on June 1, 1996, workers whose injuries occurred prior to June 1, 1996 still continued to have 100% of their CPP disability pensions clawed back. Besides this, Case Managers would advise workers that in order to get work, they would have to lie about their health and ability to work. I have verified this with workers and employers who had the belief that if a worker signed a contract and swore that they had no health conditions this would be a valid legal contract. In reality it was nothing more than a piece of paper that meant nothing.

Interesting in the Judicial Review, the Judge commented on the Penny case questioning her ability to read and comprehend the decision. According to her version of the Penny case, the Alberta Court of Appeal did not uphold the decision of the Court of Queens Bench that using impairment ratings as a direct method of rating a disability was not in compliance with the WCA. According to her, the Alberta Court of Appeal disagreed with the Alberta Court of Queens Bench and drew my attention to para. 14 of the Penny case and I advised her that when reviewing any document, you do not read one part of the document, you read all parts of a document. I asked her if in fact the Alberta Court of Appeals had not agreed with the Alberta Court of Queens Bench, then why did the Alberta Court of Appeals dismiss the appeal of the Alberta Appeals Commission. She refused to answer and sat their dumbfounded that I was questioning her ability to read and comprehend what she was reading. Overall, she was a very nice lady and did allow the case to proceed with very little of the usual court procedures.  

As usual even after the Judicial Review, I had and will proceed with a back up plan as I did expect to lose because of the WCA supporting an administrative system where policy is enacted by goof balls that cannot be questioned by adjudicators and the courts but can be remedied by Government intervention. Fortunately, I was retained by the worker at no cost and unlike other workers who retain lawyers or worker advocates who charge thousands of dollars for retainer fees as well as costs and disbursement the worker I represented is not being left with massive debt despite losing the Judicial Review. 

My back up plan is to file a complaint with the Office of the Ombudsman to investigate whether the fraud was the fault of the WCB BOD or was the WCB BOD’s policy of using impairment ratings as a direct method of determining a loss of earnings a misunderstanding by adjudicators. On review of the WCA and WCB policy there is nothing in either one that directs that an earning loss is to be determined by multiplying 90% of net earnings by an impairment rating, thus possibly exonerating the WCB BOD. I am presently writing up the complaint to the Ombudsman and when completed I will send a copy of the complaint to every one and especially to those workers whose accidents occurred prior to Jan 1, 1995 who were defrauded by determining an earning loss by multiplying 90% of net earnings by an impairment rating. I believe that all workers should send in the copy of my complaint that I will send to every one as an attachment, edit it where necessary based on their own circumstances and simply sign their name to the document and send it in and wait for the Ombudsman to respond. This will also determine whether the Ombudsman is simply a yes person for the Government and refuse to upset the sacred cow or will actually recommend to the Government to reimburse employers and pay workers what they were entitled to.

Feb 242019
 

By Gerry

The State of Nevada has finally got it right in the wacky world of workers compensation by enacting legislation to put the burden of proof on an employer to prove that a work injury is not compensable. Despite the fact that in the U.S. claims are determined based on an adversarial system as opposed to Canada which is supposed to be based on an inquiry system the burden of proof is placed on workers and not on the “Board” which is and always has been illegal and contrary to the Meredith Principles. In Canada, the the whole idea of establishing workers compensation systems was to place the burden of proof on the “Board” both for and against meaning that if causation cannot be established, then the burden of proof is on the “Board” to prove that the injury or disease arose outside the work environment. Had this been been placed in legislation by the Government a hundred years ago who are responsible for the never ending shit show, there never would have been presumptive status provided to firefighters and first responders which is discrimination based on employment. Obviously, the State of Nevada by enacting legislation of this nature do not have to enact legislation providing presumptive status to firefighters or first responders as this bill would include all workers not simply the privileged few. Questionably also is why do we as voters vote in morons to run the province and questions why we vote in the first place when the people running for office are of limited intelligence and then these people select boards, appeals commissioners and other administrative bodies who possess limited intelligence. This is not meant as a criticism of the NDP, it is criticism of all parties and more critical of the Conservative party who run this shit show for years before the NDP took over and at least made a feeble attempt to fix a badly broken system. People would be better off to vote for cockroaches to run the province. 

When I filed a complaint specific to the legislation giving fire fighters and first responders special treatment, I was told by AHRC, employment is not a protected category, therefore it is perfectly legal to discriminate against all other workers on the basis of employment. They explained that in the preamble of the AHR Act, it does indicate that all persons are equal in dignity, rights and responsibilities but in effect if a person is not included in the protected categories, then a person is excluded from being treated equally. This essentially means that all persons are not equal and can be discriminated against despite what is presented in the preamble. What type of morons would enact legislation that protects some people from discrimination and excludes other persons from being treated equally. Why not simply enact legislation creating equality for every one without specifying who must be treated equally and then adding more areas of protection such as age and genetic discrimination, sexual orientation, gender identity, gender expression. Why not enact a simple law making it illegal to discriminate against any one rather than adding more protected categories and leaving out other categories.  

As shown in Nevada, Governments can enact any legislation they choose and if the NDP were sincere in their concern of placing workers first, they would enact legislation that would ensue that workers would not be exposed to the uncertainties of receiving necessary medical care, loss of earnings, vocational rehabilitation. For example: In determining causation Section 24 (4) of the WCA could be changed from“If the personal injury or death of a worker arose out of employment, unless the contrary is shown, it is presumed that it occurred during the course of employment, and if the personal injury or death of a worker occurred during the course of the employment, unless the contrary is shown, it is presumed that it arose out of the employment to “Unless  the contrary can be proven beyond a reasonable doubt, it is presumed that an injury or death of a worker arose out of and occurred during the course of employment” This change in legislation would essentially eliminate any questions as to causation rather than at present where doctors provide medical opinions within a vacuum to lay persons who don’t know their ass from a hole in the ground and deny the claim based on some wannabe doctor who is never subpoenaed and questioned under cross examination. On to the newspaper article;

Nevada lawmakers are now considering a bill that would put the onus on employers to prove a work injury is not compensable, instead of existing law that put the responsibility at the hands of an injured party who has to prove the injury arose within the scope of employment.

A.B. 138, with 22 sponsors and now with the Committee on Commerce and Labor, was introduced Thursday. It flips the current law that “requires that a claim by an injured employee for compensation… be decided on its merit and not according to the principle of common law that requires statutes governing workers compensation to be liberally construed because they are remedial in nature,” according to a legislative counsel’s digest. 

“This bill requires such a claim to be decided under a liberal construction of those statutes in favor of the injured employee or his or her dependents,” the digest states. “Existing law provides that an injured employee or his or her dependents are not entitled to receive compensation under industrial insurance unless the employee or dependents establish by a preponderance of the evidence that the injury arose out of and in the course of employment.”

This bill states that “the injured employee or dependents are entitled to receive such compensation unless the employer establishes by clear and convincing evidence that the injury did not arise out of and in the course of employment.”

The bill also states that an employee’s injury shall be deemed to have arisen out of and in the course of employment unless there is “clear and convincing evidence to the contrary or except  under circumstances where certain statutory provisions establish other standards of proof.”

The bill would also penalize payers who deny claims that ultimately prevail after a requested hearing.