Aug 182019
 

By Gerald

This is how governments should function by standing up and fighting for workers, not like provincial governments that are complicit in protecting their sacred cows known as worker compensation boards. I watched a documentary involving workers in Peterborough Ontario who were denied and still being denied workers compensation by WSIB due to occupational diseases while employed at General Electric. Click on the following link:

https://www.workerscompensation.com/news_read.php?id=33420

Aug 072019
 

By Gerald

After decades of studying workers compensation systems in Canada and the U.S., it is apparent to any one who has any  intelligence that a plan that had good intentions has lost it’s usefulness. It is disgusting that the minister in charge of WCB will not respond to a request to explain “who has the burden of proof in the Alberta workers compensation system and yet expects that he has entitlement to being called honorable. Honorable people are willing to go the distance to see that justice is done or seen to be done. It is further disgusting that the Fair Practice Office which is  supposed to assist workers and employers to navigate the system either do not know and refuse to take this issue into the courts. It is disgusting also that the millions of dollars union members pay into unions that this issue would not be taken by unions into the courts. Where are the firefighters, police, paramedics, nurses, public servants etc. when they are required to stand up for themselves against what many refer to as a criminal organization supported by the Government who will not take this matter to the courts. C of QB Justice Millar determined that the burden of proof is on the “Board” The Office of the Ombudsman has determined that initially the burden of proof is on the “Board” and is shifted to the worker on appeal which creates a slippery slope due to the fact that in order to shift the burden of proof, all a Case Manager has to do is to deny the claim. How can any claim be adjudicated if no one knows who has the burden of proof. Everywhere a worker turns, they are confronted with elected or appointed bureaucrats who gather at the public trough and do nothing.  The office of the Ombudsman is a joke as after determining that the “Board” has the burden of proof, the Office of the Ombudsman is supposed to comply with Section 27 of the WCA and refer the matter to the Lieutenant Governor in Council who then determines if an injustice or hardship has resulted to a worker. How much of a hardship or injustice is there when workers are forced to bear the burden of proof. 

Questionably is if in fact the burden of proof is on the worker, who are the litigants. It cannot be the employer as it is rare that an employer will get involved. In reality, the litigants are the worker, WCB, DRDRB and the Appeals Commission. WCB, DRDRB and the Appeals Commission represent the employer who are financed through the accident fund as opposed to a worker who because of the lack of finances are forced to represent themselves or go deeply into debt to hire a lawyer or a worker advocate who who has no legal training in workers compensation law or no back grounds in medicine.  

We have immigrants and refugees coming to this pathetic country and province hoping to start a new life and in order to survive, take jobs that many Albertans are reluctant to take. When these immigrants and refugees suffer a work related injury or disease, no intelligent human being would expect them to have the burden of proof when they have poor language skills, no knowledge of what is expected of them and how the system works. This also would be typical of Albertans who have grade school education. It is of little use to have a Fair Practice Office assist a worker or employer when they themselves do not know how to navigate the system. In every action, whether it is criminal, civil, family, statutory law every one knows or should know who has the burden of proof. How can this be considered a good system for workers whether they are immigrants, refugees or semi-illiterate workers who are born in Canada or Alberta when no one knows who has the burden of proof. I did not serve this country in the military to protect the interests of business owners. politicians who sit on their fat asses and do nothing to change the damage they have done to workers.

Workers compensation should be abolished and employers mandated by law to provide disability insurance that is guaranteed without the need to prove causation or to prove entitlement to benefits. Worker’s primary care doctors would not have to fight to have their patients receive benefits. For example; most if not all workers have pre-existing degenerative disc disease. WCB will not provide benefits other than on a temporary basis as opposed to private disability insurance who will provide benefits for short term and long term disability for DDD. No one should be forced into a system that has been the source of criticism by every royal commission in Canada that has ever been tasked with the evaluation of the system. You can put gobs of lipstick on a pig but at the end of the day it is still a pig and that is typical with WCB.

Clearly, every one must know that private sector workers pay for dual disability benefits for public workers who do not have to fight for disability benefits as if they get sick or have an accident. They can file a disability claim with the private insurer and also with WCB. The private insurer will and does guarantee instant benefits as opposed to WCB who may never pay any benefits and generally never do, especially permanent benefits. Workers in the private sector cannot double dip, so if WCB accepts their claim, all of the compensation paid goes back to the employer. This being the case, why would any moron enact legislation to ensure that only private sector employees such as firefighters, police and paramedics to name a few who are guaranteed disability benefits. The right thing to do is to make it mandatory that all employers in the province provide dual disability benefits to ensure that no worker becomes a charge on family, friends and society. This could be done by a shared cost between workers and employers rather than having tax payers pay via income tax to support workers who have had their claim s and benefits denied illegally by WCB.

The whole system is a convoluted piece of garbage and should be terminated if the present situation is not changed. The whole concept of workers compensation proposed by Meredith was to assure workers that when they are injured, exposed to occupational diseases or killed they would receive compensation and in turn employers would be protected from civil actions. Only one part of the historic compromise has been attained. Employers cannot be sued and workers face unobtainable benefits when they have a work related accident.  

In reference to first responders being provided preferential and differential treatment through legislation specific to presumption, this obviously is discrimination based on provision of services. According to the Charter and provincial human rights legislation, all individuals are to be treated equally so why would a government enact legislation and regulations providing differential treatment to some workers and not to others questions the mentality of the people we elect. Do the people we elect believe that other workers do not get cancer, have heart attacks and have mental issues because of work related factors.

The following e-mails were also sent to the U of A Faculty of Law specifically to professors to explain who has the burden of proof in Alberta workers compensation system. This e-mail was sent to Cameron Hutchinson, Mathew Lewans and Eric Adams at the U of A Faculty of Law who should be able to explain something this simple. 

At times Governments enact legislation and appoint adjudicative bodies to administer a system without providing any direction or interpretation of how to adjudicate the thousands of claims that are adjudicated by lay people. The workers compensation system is a good example of a system that no one knows whether adjudication is based on a strict civil system which is an adversarial system with two litigants, a plaintiff and a defendant consisting of a worker and an employer. A known fact specific to civil law is that in most cases, the burden of proof is on the plaintiff but according to the Supreme Court can be reversed at times as determined in Snell v. Farrel. According Dr. Terence Ison, a well known expert on workers compensation specific to adjudication of claims, adjudication is based on an inquiry system, not an adversarial system typical of civil litigation and the entire burden of proof both for and against is on the respective “Boards” which was proposed by Meredith over a hundred years ago. According to the WCA, the proposal of an inquiry system is supported by statute by providing exclusive jurisdiction to WCB to investigate and gather the facts. The WCA also provides WCB the same powers as the Court of Queens Bench and as well all the powers under the Public Inquiries Act. With what appears to be an easy enough system to understand that there is a big difference between civil law and an inquiry system, adjudication of claims is and has been based on an adversarial system where the burden of proof has been placed most likely illegally on workers who do not have the knowledge, financial ability and legal right to gather evidence, subpoena witnesses to support their claims and entitlement to benefits. On numerous occasions, it has been requested to the Alberta Government to explain how an inquiry system works and if in fact the burden of proof is entirely on the “Board” as suggested by Dr. Ison who is supported by other provincial workers compensation systems or is the burden of proof on workers to prove their case and the burden of proof on employers to rebut any evidence that is provided by a worker. It would be greatly appreciated is you could explain how an inquiry system is supposed to work. Thank you! Respectfully; Gerry Miller 

Needless to say there was no response and more than likely will not respond, just as Mr. Copping has not responded. I came across a lawyer in Ontario, Omar Ha-Redeye who wrote an article on the illegal use use of the but for test and material contribution test in workers compensation systems and the following e-mail was sent to him;

I have read several articles by you and question why many worker compensation systems in Canada place the burden of proof on workers despite the fact that workers compensation is supposed to be based on an inquiry model, not an adversarial model. Worse yet is that the “but for test and material contribution test” is used as a legal standard when workers are forced to bear the burden of proof. After reading your article http://www.slaw.ca/2016/11/20/modified-causation-in-workers-compensation/ it would be fair to suggest that placing the burden of proof on workers is not in compliance with the legal standards that separate civil law from administrative law that defines workers compensation systems. Curiously is that the Manitoba Workers Compensation Board https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf places the entire burden of proof both for and against on the “Board” whereas in Alberta, the impossible burden of proof is on the worker. Dr. Terence Ison who was recognized as Canada’s foremost expert on workers compensation is quoted in many of his articles stating that there is no burden of proof on workers or employers and that in an inquiry model, the entire burden of proof both for and against is on the “Board”. Dr. Ison also states in his numerous articles that adjudication is not based on the civil standard which in your article, you are in agreement with. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj In your opinion who has the burden of proof in workers compensation and why has the burden of proof shifted to workers who do not have the knowledge, financial ability and legal right to gather evidence due to the exclusive right of the “Board” to gather evidence. 
Respectfully; 

Gerry Miller 

Delving further into who has the burden of proof in workers compensation I found that British Columbia has shifted the burden of proof from workers to the Board in 1968. When reviewing Meredith and leading up to acceptance of the Meredith Principles, he was of the belief that adjudication of claims should not be based on an adversarial principle which in my opinion should have then never resulted in adjudication being based on civil law which is specific to an adversarial model. This raises the question as to what is defined as an inquiry system. Is an inquiry system an adversarial system where a worker has the burden of proof. If this is so, the Dr. Ison is incorrect in his interpretation of who has the burden of proof.

According to the Alberta Court of Queens Bench in the case of Allsop v Alberta Appeals Commission, Justice Clackson determined that the Appeals Commission were of the opinion that workers had the burden of proof, thus making adjudication of claims an adversarial process by referring to Policy 01-03 where the B of D enacted policy placing the burden of proof on workers. Questionably is if the WCB B of D can enact policy placing the burden of proof on workers when historically the burden of proof according to the Meredith principles was on the Board. Justice Clackson was extremely critical of the use of lay people to hear claims as opposed to having workers having the right to have their claims heard by real judges, subpoenaing of witnesses and the right of cross examination. Justice Clackson does suggest that it is silly to have a court review some of the irrational decisions of Administrative Tribunals based on reasonableness and then hold your nose when it is apparent that the lay people who are adjudicating claims have no legal training or medical training and yet a Judge is forced to give deference to a bunch of morons. After having gone through numerous Judicial Reviews, it is my opinion that a Judge should be able to direct that the claim be reheard in the courts with full disclosure and the subpoenaing of the people who made the decisions along with the doctors who provided the opinions that adjudicators used to deny a claim or benefits. Putting the lives of people into the hands of morons is not the way the justice system is supposed to operate. It is well worth the time to read Justice Clackson’s evaluation of administrative law and recommends a procedure that is identical to the U.S. where claims are heard by real Judges in the courts and not morons appointed by Government.  Notably in the U.S. is that 67% of the claims denied by insurance companies are overturned by Judges with increased costs to the insurance companies of 59% paid to lawyers for costs and disbursements when representing a worker.

Aug 062019
 

By Gerald

A new study has come out determining that firefighters diagnosis of PTSD is far less of a risk than any other workers and questions why firefighters have been provided presumptive status for PTSD. Firefighters also have a far less chance of contacting cancer, heart attacks than other workers who are exposed on a daily basis to known carcinogens and the incidents of heart attacks. White collar workers and shift workers have a far higher risk of CVD than do firefighters or first responders. Lately, class action law suits involving “Roundup” has resulted in Bayer having to potentially have to pay out billions of dollars to settle thousands of law suits that have been heard by the courts and other claims pending. Roundup has been speculated to cause numerous medical conditions due to the use of glyphosates and the additives which has entered our food chain with a bigger effect on children due to consumption of cereals that have been used to treat crops. The toxicity of glyphosates are controversial as there is a divided opinion among experts as to whether they are safe.

Click on the following link: https://www.workerscompensation.com/news_read.php?id=33303

Jul 292019
 

Dear Mr. Copping;

Congratulations on your election win and selection as labor minister by Mr. Kenny. From your biography I see that you have impressive credentials as the new labor minister. Better yet, some of your studies were from Osgoode Hall where I assume you must have met Dr. Terence Ison who is acknowledged as Canada’s foremost expert on administrative law as it pertains to workers compensation. 

We have a perplexing problem in Alberta that has been around for decades and that is who has the burden of proof both for and against in the workers compensation system. According to Dr. Ison neither the worker or the employer has any burden of proof. Dr. Ison suggests that in the workers compensation system in Canada, the “Board” is the only one who has the burden of proof, both for and against in what he refers to as an Inquiry system. This was noted by Justice Bruce Millar of the Alberta Court of Queens Bench when I was involved in a Judicial Review which resulted in the Appeals Commission and WCB Legal Counsel being advised by Justice Millar that my client under an Inquiry system had no burden of proof whatsoever, yet both WCB and the Appeals Commission persist in placing the burden of proof on workers. It is rare that an employer ever appeals any decision and rarely if ever attends an in person appeals hearing when WCB, DRDRB and the Appeals Commission assume the role of the employer to contradict a worker who is left on their own to argue their claim.

If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where it states:

V Principles of Adjudication Inquiry Model 

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

Click on the following link:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj   Scroll down to page 814 third paragraph where Dr. Ison states:

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

In Albertathe burden of proof is put on the worker which is typical of an adversarial system which was never the intention of Meredith specifically because workers do not have the resources or financial ability to pay medical costs, legal costs to fight WCB, DRDRB and the Appeals Commission. Workers also do not by statute have the right to investigate, do not have the same powers as a the Court of queens Bench as does WCB, they also do not have any powers of investigation as does WCB under the Public Inquiries Act. 

My question to you is the same question I have asked previous Ministers in charge of the WCB. Who has the burden of proof in the workers compensation system in Alberta or is Alberta the only province in Canada that adjudication of claims is based on an adversarial system. 

It seems no one wants to answer this very simple question which after one hundred years, the people adjudicating claims should know whether Alberta operates on a strict civil law standard where workers are regarded as plaintiffs rather than claimants. I would appreciate a response although I don’t expect you or any one else would have the intestinal fortitude to upset the sacred cow.  

Adding to this is that we have laws in Canada and in the province of Alberta which we as citizens are expected to obey. That being the case why is it that WCB and the Appeals Commission are not held to that standard and if they are not, then why should any one obey the law. Our courts, including the Supreme Court of Canada find that WCB and the Appeals Commission are not in compliance with the law and WCB and the Appeals Commission continue to ignore the law and if they are sued, claim an honest mistake. When is the Alberta Government going to either fix the system to comply with the Meredith Principles or simply get rid of the whole system and the scumbags that are placed in positions where they are allowed to abuse workers and their families. By the way I am not an injured worker, have never filed a claim but I would be amiss if I did not assist and care for the less fortunate in our society which is more than the Government can say as in my opinion, the Government does not give a rat’s ass as to what happens to injured and disabled workers.

  • Gerry Miller
Jul 232019
 

Note from Gerald: This study should not surprise any one when one of the most corrupt organization is allowed by Governments to have absolute control over the acceptance of claims and benefits. What was supposed to be a safety net for workers when they suffer workplace injuries and diseases becomes a living hell. 

Referenced from https://www.workerscompensation.com/news_read.php?id=33174

Boston, MA (WorkersCompensation.com) – Does being out of work for more than one week put a worker at an increased risk of suicide? Apparently it does, at least in New Mexico. Researchers out of Boston University and elsewhere looked at data for more than 100,000 workers injured between 1994 and 2000 and linked it with earnings and mortality data through 2013 to determine if there was a connection between increased suicide rates and drug overdoses among injured workers.

“There was almost a 3 fold increase in combined drug related and suicide mortality hazard among women and a substantial increase among men,” the researchers reported in the American Journal of Industrial Medicine. “Circulatory disease mortality hazard was elevated for men.”

Incidents of drug overdoses and suicides have been on the increase for nearly two decades, contributing to a decline in life expectancy in the U.S. The researchers speculated that increased rates of depression and opioid use among injured workers might be one of the drivers.

“Depression is among the most well documented long term health consequences of workplace injury,” they wrote. “Work related injuries, when compared with injuries outside of work, are more strongly associated with depression. The impact on depression from work related injuries may be due to a combination of the financial burden of the injury, the difficulty involved with pursuing workers’ compensation claims, chronic pain, and occupational injuries typically being more severe and involving longer recovery than non-occupational injuries.”

Additionally, they noted that injured workers may tend to use prescription pain medicines, possibly for an extended period of time and with increased doses. “This may increase the opportunity for misuse of drugs such as opioids and potential for accidental or intentional overdose,” they said.

“Lost time injuries were associated with mortality related to drugs and suicide,” they reported.” Among women, lost time injuries were associated with a near tripling in the hazard of drug related deaths and a 92% increase in mortality hazard due to suicide. For men, the lost time injury was associated with a 72% increased hazard of suicide and a 29% increase in drug?related mortality hazard, although the increase in drug related mortality was not statistically significant.”

The researchers said improved workplace conditions, better treatments for pain and substance use disorders, and post-injury depression treatment could have a significant impact.

“Although confounding may account for our findings, we hypothesize that hazardous working conditions are one aspect of the structural causes of high mortality rates from drugs and suicide,” the researchers said. “Though not conclusive, our analysis suggests that reducing occupational injury rates may affect subsequent mortality from specific causes. It, therefore, seems prudent that public health policies should focus on both preventing workplace injuries and improving health care for injured workers.”

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.