Jun 192018
 

Dear members of CIWAA,

I wanted to draw your attention to a just-released report we (Jared Matsunaga Turnbull and Bob Barnetson) partnered on with the Parkland Institute called “Safer by Design: How Alberta Can Improve Workplace Health and Safety”. The report draws on a survey of 2000 Alberta Workers and their own experiences with workplace health and safety. It reveals that:

1.   Most workplace injuries are not reported
2.   Most employers violate Alberta’s safety rules
3.   Workers are afraid to exercise their safety rights

These findings suggest that despite the recent progressive and significant changes to our Occupational Health and Safety legislation, enacting additional rights and obligations alone may not address the problem of unsafe workplaces. The report makes 13 recommendations, including increasing inspection levels, introducing meaningful and mandatory consequences for violations, and improving worker-focused safety education.The report is available for free download here: https://www.parklandinstitute.ca/safer_by_design

Jun 192018
 

By Gerald

On June 12, 2018, I filed for a Judicial Review on behalf of a worker who was illegally provided impairment ratings that were used as a direct method of rating disability and subsequent loss of earnings. WCB, DRDRB and the Appeals Commission were advised by the Alberta Court of Queens Bench and supported by the Alberta Court of Appeal in the Douglas Penny case (1993) that the WCA is specific to determining disability, not impairment and using impairment ratings as a direct method of rating  a disability without converting the impairment rating to a disability by considering a workers individual and unique characteristics, specifically age, education and prior work experience was not in compliance with the Alberta WCA. The Appeals Commission appeal this decision by the Alberta C of QB to the Alberta Court of Appeal and can be found on Canlii. It was upheld by both Alberta Courts that the WCA specified that workers were to receive compensation based on the degree of disability, not on the degree of impairment.

Specifically, you cannot use the words “impairment” and “disability” interchangeably as both have different meanings. An impairment is a medical term as opposed to a disability which is a legal term and explained by the Yukon Courts in a Judicial Review of the Yukon WCB using impairment ratings as a direct method of rating a disability. The Yukon Supreme Court agreed with the Alberta C of QB and the Alberta Court of Appeal that doing so is not in compliance with he WCA  As I shall explain in simple layman’s terms, Section 43(1) of the WCA states that the evaluation of a workers disability shall be made on behalf of the “Board” by one physician and one claims adjudicator employed by the “Board” This directs that a physician on behalf of the “Board” provide the impairment rating which is the first step. Using the impairment rating as a “guide or reference, the claims adjudicator then must convert the impairment rating to a disability rating by considering the type of injury that resulted in the impairment ratings and then convert the impairment rating to a disability rating. For example: If two workers received an impairment rating for an amputation of a lower extremity, (ankle) both would receive a whole person impairment rating of 25% by the physician on behalf of the “Board” The physicians job is finished and the next step is taken by the claims adjudicator who then applies the impairment rating to the individual. If the individual does not incur a loss of earnings (interpreted by WCB as a disability) because of the amputation of the ankle, the impairment rating becomes a moot point and that individual receives no disability rating or subsequent loss of earnings. On the other hand if an unskilled, poorly educated worker, performing heavy manual labor has their ankle amputated, this would result in having the impairment rating converted to a disability rating (loss of earnings) by the claims adjudicator to determine the Section 56(7) lifetime pension of the individual. There is nothing difficult in interpreting the responsibilities of WCB in providing compensation for a disability. WCB by statute (Section 69) do not have to provide any compensation for an impairment regardless of whether the injury occurred prior to Jan 1, 1995 or after Jan 1, 1995.

Questionably is why would WCB provide lifetime pensions to workers who had no disability, no loss of earnings but had difficulty attaining an erection, difficulty urinating, defecating, reaching an orgasm which is what impairment ratings are based on as impairment ratings exclude “work” as a reference in assessing an impairment. Impairment is strictly based on difficulties in performing simple basic activities of daily living. questioning further is why should employers pay into a sick system that provides life time pensions to workers who are not disabled, have no loss of earnings but have difficulty getting an erection, difficulty reaching an orgasm,defecating, urinating, brushing their teeth etc.

This was all determined by the Alberta Courts in 1993 and WCB, DRDRB and the Appeals Commission continued to use impairment ratings as a direct method of rating a disability despite the Alberta Courts decision that went against the Appeals Commission questioning why the former Justice Ministers selected by the Conservative Government did not direct that WCB, DRDRB and the Appeals Commission comply with the decision of the Alberta Courts and obey the law by using impairment ratings as starting point or a precursor in determining a disability by taking into consideration the age, education and prior work experience of the individual worker which is the only method that is supposed to be used in determining disability as impairment ratings do not measure an individuals ability to work as work is excluded in the evaluation of an impairment.

According to Section 3 of the WCA, the “Board” has the capacity and the rights, powers and privileges of a natural person, yet they are not held to the same legal standard as all natural persons who cannot break the law, criminally or  civilly and then claim they made a mistake. If any natural person makes a mistake criminally or civilly, they are held accountable, can be incarcerated or sued, yet WCB, MRP, DRDRB, and the Appeals Commission cannot be held accountable when they misinterpret a statute to protect the accident fund which has been the primary purpose of WCB, WCB BoD, the Government, DRDRB and the Appeals Commission. It is nearly impossible to prove that a claim was denied intentionally or with malice and when mistakes are made by adjudicators who are jokingly believed to be experts when in fact they have no expertise at all in medicine or law. Questionably are these people stupid, totally incompetent and may have made an honest mistake, then why are these people adjudicating claims if they have no idea what they are doing. Obviously, the buck stops at the top in the adjudication of claims and at the top of the heap is the Appeals Commission who should know precisely the enabling statutes, regulations and the purpose, philosophy and appropriate use of WCB policies which have to comply with the WCA. As well the Appeals commission also must adhere to legal precedence which they do not adhere to a witnessed by the fact that the Appeals Commission have never questioned WCB policy specific to chronic pain which is not in compliance with section 15 of the WCA. If not for the protection of the accident fund by Mason and Smallwood (Former Chief Commissioner of Alberta Human Rights and Smallwood who was the former Director of Alberta Human Rights) who despite objections from the Southern Regional Director, Alberta Human Rights Legal Counsel dismissed my complaint specific to the decision of the SCC in the Martin/Laseur case involving chronic pain. Question is; were Mason and Smallwood corrupt or were they simply ignorant.

An interesting survey was conducted in the U.S. that found that claims that were denied illegally costs almost double the claims that were accepted and f the claims that were illegally denied, over 67% of the denied claims were over turned by the various state courts. A same study done in Alberta would result in the same findings. Unfortunately, the Alberta Government have not enacted legislation that would force WCB to pay compound interest on long term claims that were illegally denied rather than WCB at present pay simple interest which in the real world does not happen. When claims are illegally denied, a worker should receive compound interest on the back pay and as well punitive damages of at least a half million dollars. In reality, Norrie, Carpenter and Cunliffe during their review of the “Act”, WCB policies, regulations etc., and who obviously knew very little about how the system operates only touched on very minor or inconsequential problems that face workers in what is a hostile environment after they are injured.

We have a Justice Minister and a Minister in charge of the WCB and yet neither one of these individuals ever review legal precedence by Alberta Courts or other provincial courts when the decision goes against the Appeals Commission or WCB who continue to circumnavigate the law by not complying with the decisions of the courts which include the SCC. Ambiguity and convoluted policies present decisions that question the mentality of the people who are involved in the process. For example: when adjudicating a claim, the legal standard in workers compensation systems is “balance of probabilities”which is the legal standard in the civil justice system, yet WCB goes beyond the legal standard by enacting policy that causation for occupational diseases and injuries must be based on a higher standard than in criminal law. WCB Policy 01-01 Part II Application 2 Question 4 that states per verbatim;  WCB requires scientific evidence of a causal link to the workplace before accepting responsibility for an occupational injury or disease. WCB Policy 02-01 Part II Application 7 Question 7 states per verbatim; “when an occupational exposure has been established, a relative risk of 2.0 or higher makes it more likely than not that the workers occupational exposure materially contributed to the workers risk of developing the disease” Scientific evidence WCB refers to is based on epidemiological evidence by comparing an occupational group to the general population and if the occupational group has twice the risk as the general population, then the claim may be accepted thereby creating a higher legal standard for occupational disease or injuries that are not in compliance with the SCC decision cited as British Columbia (WCAT) v. Fraser Health Authority where the SCC made it quite clear that causation is not to be based on a higher legal standard, (scientific proof) and must be adjudicated on common sense and logic which is supposed to be used in determining a balance of probabilities.  This questions why firefighters and first responders had to meet this higher standard of proof which in essence is discrimination under Alberta Human Rights Legislation and Section 15 of the Charter by having occupational diseases meet a higher standard than acute injuries. Clearly when there is no evidence either for or against in the workers compensation system, the benefit of doubt always goes to the worker but in Alberta, it never does.

With the findings and recommendations of Norrie et al, it is apparent that the system did not work and has not worked for decades, workers were being treated with contempt, disrespect and atrocities beyond any human comprehension. The problem is that the NDP by phasing in the effective recommendations and making the legislation effective on Dec. 15, 2017, Jan 1, 2018, June 1, 2018 and Sept. 1, 2018 should have grandfathered the legislation retroactively to include workers whose claims and benefits were illegally denied. Why would any Government when they know that workers have been abused by the system as was found by the previous Friedman and Doerkson investigations and now the Norrie et al investigation for decades prior to the new legislation exclude workers and their families from getting the benefits they were entitled to by ensuring that the administration of justice must be done or seen to be done. Obviously by not providing retroactive legislation, the Government is simply protecting the accident fund to ensure employer premiums would remain stable even if it was on the backs of workers whose injuries occurred prior to the new legislation.  This in effect indicates that the NDP could care less how workers were treated prior to the effective dates. This leaves those workers who claims occurred before the effective dates no other choice but to sue the Government and WCB for these atrocities that occurred prior to the effective dates.

The Judicial Review that I am going forward with would support any accusation and subsequent civil suit of misfeasance in public office along with other obvious acts by WCB, DRDRB and the Appeals Commission that can be factually proven such as illegally clawing CPP disability benefits from workers whose CPP disability benefits were provided for pre-existing non compensable injuries or clawing back all of the CPP disability benefits for work related injuries when the worker has paid 50% of the premiums. This money clawed back from CPP disability benefits subsequently goes into the accident fund to reduce premiums paid by employers which is not in compliance with the historic agreement. There is also the issue of not providing any benefits for chronic pain other than treatment as workers diagnosed with chronic pain do not receive vocational rehabilitation or any monetary reward if they do not receive a PCI rating for chronic pain which is not in compliance with the SCC decision in the Martin/Laseur case. There also remains the fact that it is illegal in the workers compensation system to put the burden of proof on a worker when the original intent of the Meredith Principles was to have an independent and neutral “board” who had exclusive jurisdiction to investigate  and gather the facts. Rather than WCB investigating and gathering the facts, workers are placed in the impossible situation of proving their claim which is the basis of the American system which is based on an adversarial system. Over the years with the assistance of Government, WCB has destroyed what started off as a good system whose main and only intent was to care for injured workers so they did not become a charge on family, friends and society. The main intent now is to protect the accident fund by deliberate acts of fraud and misfeasance by the Government, WCB, DRDRB, Appeals Commission, Alberta Human Rights Commission and the Office of the Ombudsman.

I will subsequently and in my own good time explain the issues of illegal CPP disability claw backs, chronic pain, illegally placing the burden of proof on workers, not giving the benefit of doubt to workers when this also was the intention of Meredith and which essentially separates the civil justice system from the workers compensation system. Basically, no matter how much lipstick you put on a pig, at the end of the day, the pig is still a pig.

Jun 142018
 
These case managers have no medical knowledge but continue to abuse their power over injured workers. Who gives these clerks the right to ignore  medical professionals , disregard and reject them completely? Forcing  injured workers to constantly protect the  Alberta medical profession trying to prove their expert physicians and specialists are telling the truth.

Why are  case managers given absolute power over the quality of an injured workers life?
May 302018
 

http://rankandfile.ca/all-out-for-injured-workers-day/

Alberta WCB is still broken Bill 30 did nothing to help long term claims. Alberta injured workers do not have the support , manpower or finances to get out there and let the public know the suffering never ends.

For injured workers the reality is clear, the WSIB in Ontario is broken and the loss and pain is on the backs of injured workers.

So every June 1, injured workers and their allies rally at Queen’s Park for Injured Workers Day, to highlight the flaws of the compensation system and the fight we need to continue to bring to the Legislature and the Ministry of Labour.

With just a few days before the election, the rally and march is an opportunity to make a stand, not only for injured workers but for all workers and people concerned about social and economic justice, that we have had enough of austerity and cuts. The rally on June 1, will send a message that no matter who gets elected, the age of austerity is over.

We can be sure that if Doug Ford’s Conservative Party is elected, privatization of the workers’ compensation system will be on his agenda – just as he will push for privatization across the board. We know that if this happens, it is low-income, vulnerable, and marginalized people who will suffer. So the Injured Workers’ Day rally is part of the fightback. We will stand up and resist, and take back our compensation system

On the eve of June 1, the Women of Inspiration, a group which offers support, knowledge transfer, education and outreach to Women Injured at Work, gathers on the lawn of Queen’s Park for “Sleepless in Queen’s Park.” This overnight vigil provides a safe space for injured workers to share poetry and song, and to tell stories of their battles for fair compensation because, if “injured workers can’t sleep; how can their elected representatives?”

On the following day of June 1 at 11:30am, injured workers and advocates join the Women of Inspiration at Queen’s Park to rally for Injured Worker’s Day. Joined by labour and community allies, injured workers from across Ontario will take to the streets, marching on the Ministry of Labour, calling on the government to deliver fairness from the workers’ compensation system.

In its 35th year, the theme for this year’s Injured Workers Day is driven by the success and hard work of the Ontario Network of Injured Workers’ Groups (ONIWG). ONIWG is an umbrella organization of injured worker groups in communities spread throughout the province, campaigning on the theme that Workers’ Comp is a Right. This campaign is demanding the compensation system return to its roots as a system that provides support and support and care for workers who have suffered injuries or illnesses on the job. The key campaign demands for a system that protects everyone are:

  1. No cuts based on phantom jobs
    2. Listen to injured workers’ treating healthcare professionals
    3. Stop cutting benefits based on pre-existing conditions

Through province-wide education and action on these issues, injured workers have successfully pushed their demands onto the political radar. We have collected thousands of petition signatures supporting the campaign demands, and heard MPPs read out the petition dozens of times in the Legislature. We have seen the NDP include injured worker issues in its platform – the first time since 1990 that a political Party has talked explicitly about injured workers. We have seen new injured worker groups form in communities where they did not previously exist.

So we are building. And after years of austerity and cuts, the compensation system is broken and the time is now to pressure those in power to commit to fundamental changes to restore justice. Join us.

May 252018
 

The ONIWG Research Action Committee has put together a one page handout  in advance of June 1st, Injured Workers Day.  This infographic is based on research done by our committee as well as academic research.  Over the last seven years, the  Ontario WSIB has more than doubled its reserved funds while cutting benefits to workers in half – resulting in thousands of workers with a life long work related disability ending up in poverty.

We encourage you to share this info widely – to friends, family and co-workers – and use it as a handout on June 1st.  It can be used as a stand alone piece or you can print it two sided with the Workers Comp is a Right material or local information.

May 142018
 

By Gerald

Enacting legislation providing presumptive status for firefighters, paramedics, police has opened up a Pandora’s Box by the idiots who enacted legislation and regulations which has resulted in providing differential treatment to these people without any scientific evidence to  support the legislation which presumes only firefighters will get cancer when exposed to carcinogens such as benzene despite the fact that any one exposed to a carcinogen in the work place on a balance of probabilities has a greater risk than the general public who are comprised mainly of children and numerous seniors who are not in the work force which is the reference epidemiologists use when providing statistical information. Click on the following link for a follow up story: http://www.standard-freeholder.com/2018/05/13/long-sault-man-wins-landmark-case

The following editorial also questions the validity and mentality of the elected clowns who provide preferential treatment to public servants whose jobs are far less dangerous then other jobs when it concerns heart attacks, PTSD, cancer than firefighters, police, paramedics, corrections officers and yet Nurses jobs based on factual evidence is far more apt to cause PTSD than a firefighter, policeman, prison guards, paramedic. Click on the following link: http://www.timescolonist.com/opinion/editorials/editorial-ptsd-rules-need-more-work-1.23300119

Questionably, how and when did the burden of proof shift from the “Board” to the worker when according to the WCA, no one other than the “Board” has any jurisdiction to investigate claims which in all cases are based on causation. According to Justice Bruce Millar in a Judicial Review that involved myself and my client, the workers compensation system is based on an inquiry system and workers have no burden of proof whatsoever. He was only echoing Dr. Terrance Ison’s expert explanation of how the system is supposed to work when adjudicating claims. In the present situation involving claims, workers are portrayed as the plaintiff in a civil suit against WCB and the Appeals Commission who represent the employer as the defendant who rarely if ever gets involved in a claim rather than a victim of an accident that more than likely was caused by the employer who cannot be sued for gross negligence or the Crown making no attempt to charge the employer under the criminal code and facing a lengthy term in prison.

Looking back on Bill 30, the whole thing is a farce and is nothing more than window dressing to appear to make the NDP look better than the previous Conservative Government who did more damage to workers than assist them to receive justice from a corrupt and uncaring workers compensation board whose only interest is protecting the accident fund to keep premiums lower than other provinces for economic reasons.

May 092018
 

By Gerald

Click on the following link: http://www.cbc.ca/news/canada/sick-worker-groundbreaking-case-wsib-benzene-1.4649680

Just as I predicted, sometime in the near future, providing presumptive status for any occupation rather than all occupations is discrimination and would come back and bite the goofs that voted for and passed legislation for firefighters, then extended this presumption to first responders. There is and never has been any evidence that firefighters or first responders have any higher risk than any other occupation when compared to the general public which is how epidemiological evidence is gathered and is why the National Academy of Science does not or will not use the general public as a reference in determining causation.

Seems like Ontario always has to lead the way as the people we elect to represent us in Alberta must have fallen off a turnip truck. While I am a born and raised in Alberta resident, my question to the Government is why is it that Alberta is not leading the way in workers compensation issues rather than being the follower even going so far as to adopt the Meredith Principles which initiated in Ontario. Perhaps, the Alberta Government would simply rescind all legislation providing differential treatment to one group of workers and bring in legislation providing presumptive status in all claims for all workers and force WCB to prove contrary which is the way that it was intended to be right from the beginning according to Dr. Terrance Ison who before his death was Canada’s leading expert in workers compensation issues.