Oct 042017
 

By Gerald

I have reviewed the submissions presented to the WCB Review Panel by the numerous parties such as Adorn Consulting, Alberta Construction Association, Alberta Federation of Labor, various unions, Friends of Medicare, Canadian Federation of Independent Businesses to name a few who offer their concerns and recommendations but the concerns and recommendations fall far short of what the primary problems are. Organizations that provided any meaningful and useful input into the problems that workers have when filing a claim with WCB are the Canadian Injured Workers Association of Alberta, who had the benefit of having thousands of worker’s input into how the system failed them. Other organizations especially AUPE, Worker Advocates, Friends of Medicare and Unions representing Alberta unions also provided useful input and recommendations. The firefighters concern and recommendations are based on selfishness as all they are concerned with is how their claims are adjudicated and have no concern as to how other more vulnerable workers claims are adjudicated. Other workers do not have the luxury of having dual disability insurance, both private and WCB disability insurance and if WCB denies their claim, private disability insurance accepts their claim and provides short term or long term disability benefits without having to fight for decades to have a claim accepted and benefits provided. 

The least useful and predictably so is the input from employers who gullibly believe that the system provides a fair method of adjudicating claims with no concerns as to how WCB, DRDRB and the the Appeals Commission are performing their jobs. Of course if employers premiums are the lowest in Canada and they receive billions of dollars in rebates, why then would a person complain. Employers have no idea what goes on during the appeals process as for the most part it is rare for an employer to get involved in the appeals process as they are adequately represented by WCB and the Appeals Commission with the WCB being an employer( member of the Alberta Chamber of Commerce) who pays premiums to themselves and the Appeals Commission who are selected by the Alberta Government who also are employers paying premiums to an arms length Government monopoly. In effect workers are left on their own to fight WCB and the Appeals Commission rather than an employer and have the impossible task of fighting two employer represented bodies with unlimited powers, unlimited financial power to buy medical opinions and control the court process if workers are able to take their claims to the courts. Unfortunately, the courts also do not have the power to overturn a decision based on fact and forced by legislation to defer to the decision of the Appeals Commission who are far from being experts in determining the facts as in nearly all cases, the facts have never been investigated and if gathered are biased by the body who are by statute and policy are required to perform a thorough investigation but rarely ever do. Employers have no idea of the billions of dollars that they and workers have to pay in excess taxes to fund Alberta Social Services, Alberta Health Care and also pay premiums to CPP. 

Of note and it is a good recommendation by employer groups is to have an office of the appeals advisor for employers as there are numerous small employers who like workers have no idea of how the system operates and cannot afford to pay for representation. Both of the Office of the Appeals Advisor for workers and employers must be independent of WCB and staffed by lawyers who are experts in workers compensation issues and paid out of the accident fund. I also like the idea of a WCB Ombudsman or Fair Practices Officer which I recommended nearly twenty years ago to Justice Friedman.

Workers Compensation Regulations have to be revised with no exemptions for any employer from having WCB coverage if changes to the workers compensation system results in better decisions that favor workers to eliminate any possibility of workers becoming a charge on family, friends and society which is the whole idea of the Meredith Principles. The regulations also have to be specific as to the amount of exposure required by specifying in column 2 of Schedule B of the Regulations, rather than significant exposure with reference as to where this information was obtained. Most if not all allowable exposure levels were determined over 40 years ago and have never been updated. A particular disturbing presumptive description of a work related occupational hazard occurs in point 8 column 1 of Schedule B specific to “Vascular disturbances of the extremities” which is explained in Column 2 of Schedule B which species only one cause , vibration without specifying other causes such as repetitive actions of the hand and wrist which causes reduced flow of blood to the upper extremities resulting in through the bone modeling process, the formation of abnormal bone which is susceptible to micro-fractures when workers are involved tasks that require high grip and pinch strengths leading to what is referred to in the literature as insufficiency fractures that if not treated results in avascular necrosis of the carpal bones, especially the scaphoid bone (Preisers disease) and lunate (Kienbochs disease) which are work related occupational injuries. Most doctors have no idea how the mechanism of reduced blood flow due to repetitive actions of the hand and wrist can result in micro-fractures to the carpal bones due to overloading of abnormal bone. 

Whether the WCB Review Panel likes it or not, I believe that there are some claims that have to be referred to to get a good understanding of why all long standing claims must be heard. I filed a claim for bilateral avascular necrosis of the scaphoids on behalf of a worker and the claim was denied through all levels of appeal based on the false work description provided by the employer and reviewed by a WCB Medical Advisor who provided an opinion based on the false description of the work activities. WCB refused to provide an ergonomic assessment of the work place and I then requested that this be done by Alberta OH&S by an expert in ergonomics. Despite the objections of the employer and WCB, OH&S performed an ergonomic assessment which supported the claimant’s description of the work activity and proved that the employer was lying. I requested a reconsideration by the Reconsideration Threshold Panel and based on the new evidence presented numerous medical opinions from all WCB Medical Advisors and as well as an outside Occupational Specialist and Hand Surgeon along with medical literature supporting causation, the Reconsideration Threshold Panel determined that there was a causal relation, overturned the decision of the original Appeals commission denial and sent the claim back to Customer Services. Customer Services despite absolute evidence to support the claim, denied the claim, the denial was upheld by the CSRC and went back to the Appeals Commission who then denied the claim despite absolute evidence supporting the claim by all private and WCB Medical Advisors who supported the claim. The reason why the claim was denied by the Appeals Commission was that George Pheasy decided that with due diligence, the ergonomic assessment should have been performed prior to determining causation and all the doctors opinions supporting causation could have with due diligence been provided by the worker supporting causation and should have been provided at the first appeals commission in person hearing. In affect all medical opinions were disregarded, medical literature was disregarded by the Appeals Commission and despite the fact that causation had been established based on medical fact, the Appeals Commission blamed the worker for not investigating and providing the information prior to their decision. In effect, the Reconsideration Threshold Panel disagreed with the original Appeals Commission and George Pheasy resulting in the same bodies within the Appeals Commission, Appeals Commission and Reconsideration Threshold Panel disagreeing with each other. The question then is who must investigate and gather the facts, is it the worker or the “Board” Who has the burden of proof and why would the burden of proof be on a worker when they do not have the powers of investigation. Why should a worker be held accountable for an employer lying about how work is performed and then having doctors providing medical opinions based on their belief that the employers false work activity has been been investigated by WCB and is found to be accurate. Denying a claim supported by all doctors and medical science is an abuse of power, an act of bad faith and most likely criminal fraud, yet no one wants to prosecute any one within the WCB system and most likely couldn’t any way because according to the WCA, WCB and the Appeals Commission can make an honest mistake. (LOL)

I take exception when any one accuses all WCB Medical Advisors as being biased or corrupt when in fact there are many WCB Medical Advisors who are good honest doctors who provide opinions on what they believe is true. Case Managers will with hold evidence from doctors who become victims of WCB by being lied to when performing IME’s or providing medical opinions. The ergonomic assessment that I have referred to performed by OH&S was deliberately with held by a Case Manager and being that I was in attendance at the IME, I provided the ergonomic assessment that resulted in the Hand Specialist determining a work related cause which the Appeals Commission refused to accept because it was after the fact and they did not want to admit they had made an incorrect decision in denying the claim. I also take exception to people who believe that Medical Specialists know more than a GP as there are many GP’s who take a special interest in a certain medical condition and are far more knowledgeable than a Specialist. 

Of interest is that presumptive status for firefighters which originated in the U.S. under total adversarial civil law where the burden of proof both for and against in all situations is placed entirely on the worker and the employer and then went further to include first responders which has resulted in major complications and financial burdens on tax payer with respect to PTSD claims. Recent studies have found that 87% of claims for PTSD by first responders are based on fraud as it is relatively easy to go on the Internet and get all the information a person wants on the symptoms of PTSD and then utilize these symptoms to convince a psychologist or psychiatrist to diagnose PTSD. Numerous fire fighters and first responders will submit a claim for PTSD prior to announcing their retirement and then receive compensation on top of their public pensions. The support for fire fighters and first responders as to why they were provided presumptive status in the first place is being questioned in the U.S. as all fire fighters and first responders knew prior to employment the risks they would face in their professions of being exposed to toxins, horrific accidents, violence etc. and thus could have chosen another profession. Unlike the military, civilian firefighters and first responders can hand in their resignation any time they decide to. Clearly,it must be realized and acknowledged that the only reason why fire fighters and first responders were provided presumptive status in the U.S. is that in an Adversarial system, the impossible burden of proof was placed on firefighters to prove causation specific to certain types of cancers as opposed to Canada which is supposed to adjudicate claims under an Inquiry system and thus there was no need to provide discriminatory legislation that favors fire fighters and first responders as common sense and logic based on a balance of probabilities is all that is required by law as evidence that any cancers diagnosed for fire fighters or first responders would most likely be caused by work exposure. Furthermore, causation is supposed to be based on common sense and logic (balance of probabilities) and not on medical evidence as that requires a much higher standard. This higher standard has been determined by numerous Canadian courts to not fit into workers compensation systems but seems to be a problem for WCB and the Appeals Commission to understand.

Having said that in Alberta and the rest of Canada, some one has to determine “who has the burden of proof” in all situations under what is supposed to be an Inquiry system whether for causation, offers of modified work, determination of disability, determination of earning losses etc. It is grossly illogical to provide WCB all the powers of investigation and then place the burden of proof on a worker who does not have the legislative powers to investigate, has relatively little or no knowledge of the system, has relatively little or no knowledge of medicine, has no financial ability to contact medical experts. It is obvious that the WCB BoD do not believe that the burden of proof is on the “Board” as evidenced by the fact that WCB Policy 01-03 specifically places the burden of proof on the worker, Policy 01-08 places the burden of proof on the worker and the Appeals Commission Rules of Procedure also places the burden of proof on a worker by stating that “with due diligence” the evidence that the worker was illegally forced to submit in an Inquiry system could have been provided at the original in person appeal panel hearing. In my humble opinion, in an Inquiry system, any evidence that was not provided by WCB during their investigation is not the responsibility of a worker to provide.  

Basically, workers compensation has very little in common with civil litigation and is analogous to the criminal justice system where there is a victim and the police who are usually considered to be neutral have all the powers of investigation and after a through investigation hands the evidence over to a usually independent Crown Prosecutor who decides if the evidence supports going to trial. In the workers compensation system, WCB is supposed to be a neutral party who investigates and determines whether there is evidence both for and against. In all cases, there has to be two scenarios, either the accident arose out of and occurred in the workplace or the accident did not arise out of and occur in the work place. Both scenarios have to be included in the adjudication process. In other words if an Adjudicator determines that the accident did not arise out of and occur in the course of employment, the Adjudicator then must determine the risk factors and the time and place outside of the work environment that caused the accident. It does not matter in any disagreement, if one person provides an opinion based on some evidence they have read, seen or been told, there has to be some conflicting evidence to contradict the evidence, not simply a negative opinion rebutting the other persons evidence without providing evidence to support the rebuttal. Climate change is a good example; some experts suggest that climate change is a natural phenomena that is simply changes of natural or normal weather patterns that have occurred previously over the last million or more years due to volcanoes etc, other experts suggest it is due to man made causes. Who does a person believe? It is obvious from the decisions made by the Alberta Appeals Commission that adjudication is based on the strict rules of civil procedure where a worker is considered to be a plaintiff bringing an action against a defendant which is not the employer but the “Board” as in nearly all cases, the employer does not attend in person hearings. Obviously that was never the intentions of Meridith to force workers from for the most part a fair and just court system where a worker had all the rights of a natural person into an administrative system adjudicated by incompetent, deceitful, disrespectful people where workers have lost all their rights to a fair and unbiased adjudication of their claims. If I am wrong, then why is it that in every situation upon investigation of WCB, there are glaring deficiencies in the system. After over one hundred years, the system should have been perfected not constantly having to be reviewed for corruption. Obviously no system can operate when the system consists of lay people determining medical evidence that is based on medical opinions from doctors who themselves have no idea whether the opinion they are providing is based on undisputed medical fact, undisputed medical literature or undisputed medical consensus. As with anything, any opinion must be based on a reference to specific literature, the chapter and pages where the medical opinion is derived from.  For anyone who is interested and spends a lot of time reading medical literature on a daily basis as I do, the word “may” is used consistently in medicine rather than the word “will” as it is impossible to determine how each individual based on their genetic makeup will react to prescription medications, toxins, stress, pain etc. and is the reason why there are some people who take prescription medications that result in death for some but total relief for the majority of people. In fact prescription medications are marketed based on the fact that some prescription medicines will cause major side affects and may result in death for some people but if the majority of people receive relief, these prescription medications are allowed to be marketed. 

Some of the responses to questions specific to psychological diagnosis is not complex at all especially when it involves a disabling injury. I have been in attendance at several psychological evaluations and for the most part, the assessment of determining a work related cause is simple. A psychiatrist determines the correct diagnosis from the DSM Manual and the severity of the psychological evaluation. They then consider the past history of a worker before and after an accident by review of a workers medical history. They go into a workers past family history prior to an accident which is very personal and leave nothing to chance. If a worker did not have any mental or emotional problems involving suicidal ideations and homicidal thoughts prior to a disabling accident and they have mental and emotional problems after a disabling accident, then it is easy to conclude that the emotional and mental condition is work related but if a worker has a history of emotional and mental problems such as marital disputes, financial problems etc. prior to a disabling accident it would be concluded that the psychological condition is not work related. In all actuality it is easier to diagnose a psychological disorder especially when the psychological diagnosis is based on a disabling injury than it is to diagnose an acute injury that may not show up on imaging.  More often than not it is Case Managers, DRDRB and the Appeals Commission who cause secondary work related psychological disorders by the inhumane and contemptuous treatment of workers. Although worker suicides or homicides are rarely or if ever reported in the media, most if not all workers have homicidal thoughts of harming the people who have destroyed their lives. All the workers I have talked to have stated that if they knew they could get away with it, they would cause harm to the people who destroyed their life. In a CBC Radio live broadcast after the incident involving Patrick Clayton, I was asked if I thought what he did was justified. My reply was that if local authorities do nothing to fix a broken system then any kind of violence against WCB Personnel was justified. 

The Alberta WCA does not specify as to who has the “burden of proof” . No one in Government, WCB or the Appeals Commission will answer that question. On November 8 and 9th I represented a worker in an in person hearing and was the first question I asked. The Appeals Commission refused to answer the question. I then requested that they file an originating notice for the Court of Queens Bench to answer that question which obviously forms the basis of every claim as without knowing who has the burden of proof, you cannot adjudicate any claim.  It is obvious also that the Alberta Court of Queens Bench also do not know who has the burden of proof in the workers compensation system as this was an issue that was dealt with by two different Judges on subsequent Judicial Review and Appeal. Justice Millar agreed with me that the workers compensation system is based on an Inquiry system and the burden of proof is on the “Board” to prove that modified work was offered and sent the claim back to the Appeals Commission to reconsider their decision to deny the claim and to contact the employer to determine if modified work had been offered. The Appeals Commission refused to contact the employer as directed and again denied the claim despite finally acknowledging that there was no offer of modified work and I was forced to go back to the Court of Queens Bench to rehear the same claim before a different Judge. Justice Yamauchi disagreed with Justice Millar as to who has the burden of proof in an Inquiry system and instead determined that adjudication is based on an adversarial system not an inquiry system and the burden of proof is on the victim (worker) resulting in total confusion as to who has the burden of proof. After over one hundred years, no one knows who has the burden of proof. How can a claim be adjudicated when no one knows who has the burden of proof? 

Questionably is why the Alberta Government does not enact legislation that provides the benefit of doubt to a worker rather than having the WCB BoD determine questions of law which they do not have jurisdiction. Providing a worker with the benefit of doubt when there are differences in medical opinions would make all claims that are supposedly complex, relatively easy as if there is a medical difference of opinion, rather to proceed to a MRP who in most or all cases are not world recognized medical experts and are simply providing more medical opinions that are not based on medical science, peer reviewed medical literature or medical consensus. According to the WCB BoD the benefit of doubt has to be based on medical fact which is not the proper or correct standard in workers compensation systems as medicine is not or rarely based on fact but is based mainly on speculation or in legal terms circumstantial evidence which is used in all legal proceedings but according to WCB cannot be used in adjudicating claims. If in fact the WCB Review Panel would zero in on the two primary problems that I have presented  as to “who has the burden of proof both for and against” and “providing the benefit of doubt in all cases to workers when there was a medical disagreement”, everything else would be totally irrelevant.

Question 17 posed by the WCB Review Panel is an interesting question “Should an option be made available for workers to obtain additional coverage through the WCB? Why or why not?” Why would workers want additional insurance through WCB when WCB does not provide compensation now and is why there is a review as to why the system is not working. The question that should have been asked is “Should employers be mandated to provide private disability insurance that is not based on work related injuries. In my opinion this should be a no brainer as employers and workers at present pay for both private disability and WCB disability insurance (dual benefits) for all public employees and as well as WCB employees to ensure that if WCB denies their claim, then the private disability insurer will accept the claim and pay benefits without going through years of appeals. This being the case then all workers in Alberta should be covered under the same dual benefits as public workers and WCB employees.

Oct 022017
 

CIWAA is pleased to see that the recommendations of the review panel have addressed some issues of great importance to injured workers. The panel heard from many injured workers and their allies and advocates of the “culture of denial” at the WCB. We are pleased to see that the panel calls for changes to put the needs of the injured worker at the centre. These include: elimination of incentives to close files and declare workers ready to return to work; ending secret arbitrary limits on the treatment workers receive; and ending the practice of returning “surpluses” to employers.

The panel has made a number of recommendations which address the improper use of medical consultants and independent medical examiners by the WCB. The recommendations to uphold the right of injured workers to choose their health care providers and, where an independent medical examination is required, to select the physician from a roster are very positive. We do however raise a concern that the Fair Practices Office, Medical Panel Office and Appeals Commission must function independently. The appointment of a Medical Panel Commissioner must not be subject to political patronage as has been the case in the past. We also support the recommendations to put in place a process for a worker to apply for continued benefits while an appeal is in process, and for continuation of medical benefits by employers.

The recommendations of the panel address the fraudulent deeming practices of the WCB, in particular the way in which WCB declares workers capable of working full-time at a phantom job such as a parking lot attendant or store greeter, irrespective of the workers’ skills, experience, education and physical limitations and the existence and availability of such work. To add insult to injury, WCB then increases the imaginary wage for this phantom job every year until workers are left with a pittance or often no benefits at all.

The recommendations are a good beginning, but in order to protect the rights of injured workers, deeming must be used only when documented evidence exists that a worker has refused a legitimate job offer for appropriate work. The job must be available and suitable for the worker’s skills, education and experience. The WCB must support injured workers in their efforts to obtain real work, recognizing the reluctance of employers to hire injured workers and the real difficulties faced in finding work. The reluctance of employers to hire injured workers must be recognized, and compensation continued until workers have found suitable work. A “deemed” wage must not only be based on verifiable information as proposed by the panel and established annually, not years into the future. All workers now deemed should be able to have their case re-opened including access to appeal.

The following areas are either missing are missing from the report and should be included in new legislation and policy.

1. Justice for Injured Workers now without benefits and often living in extreme poverty. The report details many ways in which workers are unjustly denied benefits, but makes no recommendations for reparations and to address the ongoing injustices.

The panel recognized that the review and appeal process is daunting for injured workers, especially those who do not have a union at their workplace or collective to support them. Injured workers living in poverty may have abandoned their claim, missed a deadline, or failed to assemble the evidence they needed to counter the “medical opinions” of WCB-retained “paper doctors” who never saw or treated them.

Recognition of the failure of the current WCB system to uphold the rights of injured workers requires that injured workers whose claims have been unjustly denied have access to review and appeal. All denied claims of injured workers where the decision was based on the opinion of WCB paid physicians, medical consultants and Medical Panels which contradicted the clinical observation and findings, ongoing direct examinations and supporting medical evidence of treating physicians and/ or health care providers must be reopened on request. As well, if the worker now has evidence or medical opinion which was not previously presented at the time of adjudication, this evidence should be considered and not rejected on strict legal grounds, e.g. time limits or lack of “new evidence.”

3. Claim suppression: Employers must not be permitted to engage in claim suppression with impunity and strong penalties against employers should be in place. All systems which encourage employers to suppress claims must be ended.

4. Non-economic loss payments should reflect the real impact of a disability on a worker’s life outside the workplace. Current payments show how little value is placed on the life of a worker. To provide some examples of how profound changes to a worker’s life are valued: a worker who becomes legally blind in both eyes would be eligible for a NELP of $28,800; complete immobility of a knee – $22,500; hearing loss – from $360 – $4,500 (and no, $360 is not a typo) and infertility – $4,500. The maximum for a worker who is totally disabled (e.g. paralysis of at least two limbs, profound brain injury, loss of both hands) is about $90,000.

5. Medical Panels. The decision of a Medical Panel is considered final and not subject to any form of appeal. This is a denial of natural justice. For example, new information could show that the Medical Panel erred. Therefore decisions rendered by Medical Panels should be subject to appeal.

6. Pre-existing conditions: The WCB declares that normal aging constitutes a “pre-existing condition” – a blatant form of age discrimination. Even when a worker has not previously been diagnosed or treated by a physician for this “condition”, and was able to perform their job before the injury but can no longer do so, WCB declares a “pre-existing condition.” WCB then limits benefits to a period of recovery from an “exacerbation of the pre-existing condition.” WCB should recognize a pre-existing disability or impairment, not a pre-existing condition.

7. The Fair Practices Office must include a consultative role for injured workers through their organizations.

We trust that you will consider these proposals, which have the support of the many Albertans who have signed out petition.

Yours sincerely,

Donna Oberik

Executive Director

Canadian Injured Workers Association of Alberta

Jul 072017
 

The Government of Alberta has announced the WCB review recommendations. You can read them here. CIWAA would like to share your comments with the government, as there is still some disconnect of how many injured workers view the WCB.  Please read the review recommendations and comment on CIWAA’s open forum below, which will be sent to the government in September. Please make your comment and questions free of swear words/vulgar language so your voice can be heard.

Thank you:  CIWAA would like to thank Premiere Notley for her due diligence  in requesting a WCB review. 

Big thanks to the panel for their time and effort  and most importantly understanding and willingness to listen.
Thank you John Carpenter,  Pemme Cunliffe & Mia Norrie.

CIWAA encourages the  NDP government to delve into to day-to-day activities and govern operations at the WCB. Open up all long-term claims denied on bought opinion or when medical panel was used to deny eligibility.

If  criminal activity has been uncovered strictly for monetary gain that intentionally hurt/slandered or killed injured workers, punish those involved in a court of law. All within the WCB should include personnel from the top down as well as those doctors they consistently pay for opinions. 

CIWWA begs the NDP government on behalf of all injured workers their families  and taxpayers not to ignore the panels findings and the plight of injured workers. 

Injured workers deserve compensation for their injuries, period.

Granted, the government cannot give the injured workers the life they lost back, nor can they ease the pain and suffering. But the government can make the years they have left on earth  free of stress and financial worry. Prioritize accessible medical needs for injured workers.

Injured workers that passed on from their injuries and left their families in poverty and depression deserve the benefit their loved ones should have had in life. 

 
CIWAA asks very little for the injured worker who was hurt working in Alberta. 
Mar 312017
 

By Gerald

Perhaps if our elected politicians would read this link presented by a lawyer in a video they would understand why the Calgary Commercial Crimes Unit supported filing criminal charges against WCB for equating an impairment rating to a disability rating resulting in criminal fraud. You also may find that the Alberta Court of Appeals in the Penny case also determined that an impairment rating cannot be used as a direct method of rating a disability. This is also supported by the Hayden decision in Nova Scotia and the decision by the Yukon Supreme Court, all determining the same thing. The in person hearing with the Appeals Commission on Nov. 8 and 9th of 2016 was specific to using an impairment rating of 20% and not converting the 20% PCI rating to a PPD which is the correct methodology when determining a permanent partial disability. The Appeals Commission still after nearly 5 months have not made a decision as to how they intend to cover up my appeal regarding this matter. A 20% PCI rating does not equate to a 20% PPD rating and WCB, the AC the WCB BoD, WCB Legal Services and WCB Medical Services have known this for over 20 years and covered this all up by changing WCB policy on Jan 1, 1995 by redefining the purpose of an impairment rating by using impairment ratings to provide a non economic loss rather than an economic loss that was used prior to Jan 1, 1995. Click on the following link where the lawyer presents all of this in an easy to understanding video https://iln.isba.org/blog/2017/03/28/quick-takes-your-practice-ama-impairment-ratings-workers-compensation-cases

Perhaps Ms. Ganley should go after the real criminals in Alberta who have criminally defrauded workers knowingly for over 20 years.

Feb 032017
 

By Gerald

What is the point of having the Office of the Appeals Advisor represent a worker through out the appeals process and if there is an error in law, jurisdiction or mixed fact and law, a worker is forced to pay a lawyer a retainer, costs and disbursements to represent the worker on judicial review that can result in tens of thousands of dollars in costs to a worker who does not have the financial ability to ensure that justice is done or seen to be done. Either separate the Office of the Appeals Advisor from WCB Legal Services or change the legislation specific to the Legal Procedures Act that would allow a representative of a worker to represent the worker before the courts.

Another major problem exists when the Appeals Commission is by legislation given more power than the courts. When a  superior court directs that the Appeals Commission reconsider their decision, the Appeals Commission can refuse to reconsider their decision and are allowed by legislation to give the finger to the court. A worker then has to go back to the court to have the direction of the court upheld. This brings total disrespect to the whole system when a the Appeals Commission can by legislation disrespect an order of the court and refuse to comply with the decision of a court. Further to this under the Rules of Natural Justice a body cannot try their own case and when a superior court makes a ruling, the Appeals Commission should have to appeal the decision to the Alberta Court of Appeals like every one else has to do.

 
Jan 262017
 

By Gerald

As I do not believe in titles such as honorable this and honorable that, I will simply call you with due respect Ms. Notley and you can refer to me as Mr. Miller.

Dear Ms. Notley;

As you know, the WCB Review Panel has concluded their reviews of the Alberta workers compensation system and will be providing their recommendations which I suspect will not do anything for workers. There has been numerous individuals and organizations who have provided their inputs into what they believe is wrong with the system and how it can be fixed. Most if not all of the inputs that have been provided to the Panel only scrapes the surface of what is wrong with the system. I believe Justice MacLean hit the nail on the head when he noted that workers did not have a level playing filed and determined that this lack of not having a level field offends the basic principles of natural justice. Based on my 23 years of experience with WCB, DRDRB, the Appeals Commission and the Alberta Court of Queens Bench via Judicial Review/Appeal, I could not agree more.

The vast majority of injured workers are blue collar workers with grade school education with no legal or medical backgrounds and with limited finances. When a claim or benefits are denied, workers without adequate finances are forced to either give up, represent themselves which is a big mistake or pay Worker Advocates or Lawyers to represent them who pass themselves off as experts when they have very little expertise in the area of workers compensation, yet forcing a worker to pay retainer fees that they cannot afford. If Worker Advocates or lawyers are experts, then they would not charge retainer fees and would represent workers on a contingency basis. Some workers contact the Office of the Appeals Advisor which is a big mistake as these people work directly for WCB, have very little knowledge of the system and will not and cannot represent workers in the courts on Judicial Review/Appeals even if the claim or benefits have been inappropriately or illegally denied. If a worker pays a Worker Advocate, the Worker Advocate cannot represent the worker on Judicial Review because of the Legal Professions Act which will not allow any individual who is not a lawyer to represent a worker in the court system. After paying out thousands of dollars to a Worker Representative and losing at the Appeals Commission level and if the worker wants to appeal the inappropriate or illegal decision of the Appeals Commission, the worker is forced to pay thousands of dollars more to a lawyer for a retainer fee and as well other costs and disbursements to a lawyer who then has to spend hundreds of hours reviewing thousands of pages of documentary files that a Workers Advocate has already reviewed after the worker has paid the Worker Advocate for their costs and disbursements and now is forced to pay a lawyer for their costs and disbursements. Little wonder why some workers incur hundreds of thousands of dollars in debts when they are forced to pay two different individuals to review the same documentary files.  If a Worker Advocate is capable of representing a worker throughout the appeals process, they are or should be capable of representing a worker before the courts. One of my recommendations would be to revise the Legal Professions Act to allow Worker Advocates to represent workers before the courts.

There are far too many lawyers and Worker Advocates who if they are experts can quickly review a workers files and know immediately whether a worker has a good case or a case that has no merit. A case that has no merit and would be impossible to win should not be undertaken by a lawyer or Advocate when it is obvious that the claim has no merit rather than to proceed with taking a workers money and knowing that the chances of winning is extremely unlikely. If a worker is unwilling to take the honest and good advice of a lawyer or Advocate who should refuse to represent the worker, although workers can usually find some  lawyer or Advocate who is dishonest and with no integrity to represent a worker, take their money and give them the one finger salute.

Based on my own experience in Judicial Reviews/Appeals if WCB Legal Counsel and the Appeals Legal Counsel do not see a person representing a worker in the courts as being a threat, the Legal Professions Act is waived. If WCB Legal Counsel and the Appeals Legal Counsel see the representative as being very knowledgeable and threat, they advise the court that the representative cannot represent the worker because of the Legal Professions Act and if the Judge allows the representative to represent the worker, they will appeal any decision made by the court in favor of the worker on a question of law to the Alberta Court of Appeals. This has happened to me where I was allowed to represent a couple of workers before the courts and after successfully having the Appeals Commission decision overturned, my goose was cooked as when I appeared in court the next time, the Judge was willing to waive the Legal Professions Act but the Appeals Commission Legal Counsel refused to allow me to represent the worker and informed the Judge that she would appeal any decision on a question of law which prompted the Judge to advise the worker he would have to represent himself which for a semi illiterate person with a grade 8 education was impossible and he wound up losing. If allowed I could have easily won the case. 

On most if not all Judicial Review/Appeals the employer is represented by the Appeals Commission and WCB Legal Counsel who have inappropriately or illegally denied the claim. All of their expenses are paid for out of the accident fund as opposed to a worker whose expenses are paid for by themselves, usually by mortgaging property or by borrowing money. It is especially heinous when workers when requesting the attendance of witnesses and the Appeals Commission refuse because a worker cannot pay conduct money to doctors who charge $700.00 an hour or more plus expenses, yet WCB can pay for a doctor who came all the way from Cookeville Tennessee for a two day in person hearing to act as an expert witness for them which back fired as rather than supporting them, he supported my client and they were forced to admit that they had made a mistake. Obviously it does not take a rocket scientist to determine there is no level playing field.

The best possible solution and recommendations I have to level the playing filed is to remove the Office of the Appeals Advisor from the control of WCB and place them under a a Government body such as the Minister responsible for workers compensation the same way the Appeals Commission is now under the Justice Minister. The Office of the Appeals Advisor would be staffed by lawyers who are experts in workers compensation and as well comprised of Medical Advisors who are experts and as well be able to contact medical experts throughout the world who are recognized by their peers as being real experts and not like some medical wannabe that are contracted by WCB. All of these people’s expenses would come out of the accident fund which would be used for whatever purpose the Office of the Appeals Advisor believes would be necessary to ensure workers are treated fairly and at the end of the day, workers would be confident that everything that could be done was done whether they win or lose.

The reason why I am recommending changes to the Office of the Appeals Advisor is because what started off as an Inquiry system has evolved into an Adversarial system where the worker now has the burden of proof  rather than the “Board” even though the Board has exclusive jurisdiction to gather the facts, all the powers of investigation under the Public Inquiries Act, same powers as the Court of Queens Bench and yet the worker has the burden of proof which is grossly illogical. Question is; if the employer is not involved in the process, who then has the burden of proof to prove contrary.

The “Board” is acting more like a Judge who is judging a case between two litigants, the worker and the employer and after a claim is filed the employer is replaced by WCB and the Appeals Commission who now take the role of the employer. This is evident on Judicial Reviews/Appeals when a worker is on one side of the courtroom facing off with both WCB Legal Counsel and the Appeals Legal Counsel on the other side of the room and the employer who they are obviously representing is not present. This also is evident at in person hearings where the Appeals Commission takes the role of representing the employer who also is not present.

Last but not least is the issue of who receives the benefit of doubt in the workers compensation system if a claim remains in the neutral state where it cannot be proven either way. Upon review, it is evident that the employer receives the benefit of doubt when it is the worker who is supposed to receive the benefit of doubt when a claim remains in the neutral state. As any one knows, medicine for the most part is based on speculation, yet according to WCB a claim cannot be accepted based on speculation, yet the SCC has determined that all claims must be accepted based on speculation (common sense and logic). WCB also adjudicates claim on a higher legal standard than in criminal law as despite the courts objections and decisions, WCB adjudicates claims on medical certainty rather than speculation or common sense and logic which is a higher standard than criminal law.

Jan 192017
 

By Gerald

An interesting e-mail crossed my desk from a worker that shows how convoluted the system is. According to the worker pain and suffering does not come under the WCA and stated that WCB Legal Services admitted during Judicial Revue that pain and suffering does not fall under the WCA. This is not true and WCB Legal Services should not be suggesting that pain and suffering are not covered under the WCA. When assessing impairment and using impairment ratings does factor in pain and suffering when assessing impairments. Providing compensation for an impairment is subject to the discretion of the WCB BoD under Section 69 of the WCA.

Prior to Jan 1, 1965 all workers received a lifetime pension for an impairment by multiplying an impairment rating by net earnings which factors in pain and suffering. After Jan 1, 1995, workers received a lump sum payment when assessed an impairment by multiplying an impairment rating by MIE. Curiously and thinking that all people are stupid, prior to the stroke of midnight an impairment rating was defined and used to determine an economic loss and after the stroke of midnight an impairment rating become a non economic loss. How can a word have two interpretations. Obviously, there is no correlation between an impairment and a disability and impairments are supposed to be used as a starting point or precursor in determining a disability so why then would WCB use impairment ratings as a direct method of rating a disability This sounds more like a fairy tale (Cinderella)  when mice turned into horses and at the stroke of midnight the horses turned into mice. Policy 03-01 Application 7 also includes chronic pain ( non discernible chronic pain) in assessing compensation but only provides medical aid but no loss of earnings, vocational rehab. or a PCI rating. Policy 03-01 Application 7 also provides compensation for non discernible chronic pain syndrome but does not assess any PCI rating for chronic pain syndrome. The SCC Martin/Laseur) also determined that chronic pain be recognized and compensation be paid although WCB has not and is not in compliance with the SCC decision and continue to not provide an impairment rating for chronic pain in itself without any objective findings which is illegal and contrary to the decision of the SCC. At one time pain was believed to be subjective and associated with malingering but over the last ten years with improved brain imaging a patient complaining of pain without objective findings could have brain imaging to determine if pain was evident. Of course even if brain imaging did indicate pain response many patients continue to have pain even after an injury heals. An example would be phantom pain in the case of an amputated limb. Of course the Government in Alberta turns a blind eye to everything WCB does or does not do as no one wants to disturb or annoy the sacred cow that was created by Government without any checks and balances.

Jan 182017
 

By Gerald

It appears to me that there is still confusion as to the difference between an impairment and a disability, with even lawyers not knowing the difference and believing that an impairment is the same as a disability/ Impairment is a medical term and expressed as a percentage of a whole person impairment with the higher the impairment the closer a patient is to death. A 100% impairment is when all bodily functions cease and a patient dies.

It is illegal in Alberta to use impairment ratings as a direct method of rating a disability but prior to Jan 1, 1995, the Alberta WCB illegally used impairment ratings as a direct method of rating disabilities and after a number of court decisions (Penny decision in Alberta) specific to using impairment ratings as a direct method of rating disabilities, changed their policy to a dual award system thereby separating an impairment from a disability. Impairment ratings do not include work in assessing impairment as work changes from one one occupation to another and therefore there is no set reference level as work can be sedentary, light moderate or heavy. The reference used in assessing impairment is simple basic activities of daily living which never changes from one patient to another, thus the same impairment rating can be used as a reference for all patients.

Using chronic pain as an example results in a maximum impairment value of 3 percent (AMA Guides) which is a standardized conventional method of providing the same impairment rating for all patients by referencing all patients to a set reference which is based on simple basic activities of daily living. This same value (3%) cannot be used to measure a patients difficulty in performing work which varies depending on a patients occupation. A patient performing sedentary work and diagnosed with chronic pain would have a higher impairment rating when referenced to sedentary work, higher for light work, higher for moderate work and higher for heavy work and therefore work is excluded as a reference in assessing impairment ratings. Being that earnings are associated with work, you cannot multiply an impairment rating times net earnings resulting in a disability. The impairment rating has to be converted to a disability rating specific to a workers prior occupation that factors in whether the work is sedentary, light, moderate or heavy and multiply the converted disability rating by net earnings. This is not rocket science and did not take the Alberta Court of Queens Bench in the Penny case to figure out that an impairment rating does not equate to a disability rating. The Alberta Appeals Commission appealed the C of QB decision in favor of Mr. Penny and the Alberta Court of Appeal denied the appeal and upheld the decision of the Alberta C of QB. Question is then why if the Alberta Appeals Commission knew this, why did they continue to use impairment ratings as a direct method of rating a disability which questions the integrity of the Appeals Commission when they are aware that equating an impairment rating to a disability is illegal, thereby making them an accessory to criminal fraud.

Prior to the Penny decision by the C of QB and the Alberta Appeals Court, WCB and the Appeals Commission could suggest that this was an honest mistake. After the Penny decision it no longer would be an honest mistake. It would be fair to suggest that there was a conspiracy by WCB, the Appeals Commission, the Crown Prosecutors Office, Office of the Ombudsman and the Justice Minister at the time (Dave Hancock I believe) to continue to use impairment ratings as a direct method of rating a disability rather than to admit they had made an honest mistake and all claims would be re-adjudicated and pay compensation to workers based on a disability and not an impairment.  The NDP Government and especially Ms. Ganley has to address this issue and ensure that justice is done or seen to be done rather than to turn a blind eye as was the case with the Conservative Government. It would be fair to suggest that because WCB is a multi-billion dollar business, that certain individuals accepted bribes to cover this up rather than to admit that they had made an honest mistake and then having to re-adjudicate thousands of claims involving millions or billions of dollars. Questionably is why WCB Medical Services who assess impairment ratings did not advise WCB that impairment ratings do not and cannot be used to determine disability. It would be fair to suggest that WCB Medical Services may have accepted bribes to cover this up.

Dr. Emily Spieler ( well known law professor in the U.S.) who is an acquaintance of mine was requested by Congress to determine the difference between an impairment and a disability and her findings can be found on the Internet when googling the “Spieler Report. I also have an e-mail sent to me from Dr. Gunnar Andersson (Co-editing Chair of the AMA Guides 5th Edition) which I have in my possession specifying that you cannot use impairment ratings as a direct method of rating a disability, all of which I gave to the Calgary City Police Commercial Crimes Unit. Their investigation concluded that WCB were in fact using impairment ratings as a direct method of rating a disability and turned everything over to the Crown who decided not to press criminal charges because there was little doubt that WCB and the Appeals Commission would in their statement of defense state that their was no intent to defraud because they had simply made an honest mistake. The Crown suggested I pursue civil action but that was also not an option as the Alberta WCA Section 13.1 (9) and Section 17 (2) provides protection from civil action based on an honest mistake. It would be fair to conclude that the Alberta Government is to blame for the corrupt and unfair treatment of workers.

Jan 172017
 

By Gerald

Presumptive status has and always has been for all workers not just for first responders. It would appear that in order for workers who work in high risk occupations such as GE and have a much higher risk of cancers than first responders, must also be given presumptive status through legislation. If not, this would be discrimination. Basically, the way presumption is supposed to work is that some one ( no one knows whether this is a worker or the “Board”) has to provide on a de-minimus standard a causal relation to the work place. This then triggers the presumption and unless proven contrary ( no one knows who must prove contrary, the employer or the “Board”), the presumption stands.

Note that in the article it states that it is the worker who must prove causation and the employer must prove contrary. This then indicates to me that the system in Canada is an Adversarial system not an Inquiry system that workers are led to believe. If the burden of proof is on the worker and employer and not the “Board” what then would be the benefit of workers giving up the right to sue the employer and the employer funding the system if the same system exists that existed over one hundred years ago still exists today. Why would workers give up the right to sue and have to prove causation which is nearly impossible in many situations rather than to be able to sue an employer in the court system rather than claims being heard by incompetent adjudicators in an administrative system. Why give the “Board” exclusive powers to investigate and gather the facts if they do not have the burden of proof. When if ever has an employer proven contrary which in an adversarial system, an employer must prove contrary and why is it then that it is the “Board” that spends millions of dollars to prove contrary when causation has been shown. In nearly all cases an employer does not even get involved in a claim resulting in a worker fighting the “Board” rather than an employer which suggests to me that employers subrogates the claim to WCB who takes the place of the employer to fight the worker. Why is it that the Alberta Courts can not agree as to whether adjudication in workers compensation is based on an Inquiry system or an Adversarial system with Justice Millar suggesting that it is an Inquiry system and Justice Yamauchi disagreeing and suggesting it is an Adversarial system.

Click on the following link;https://www.thestar.com/news/gta/2017/01/16/ontario-eyes-stronger-protections-for-workers-who-get-sick-on-the-job.html

Jan 142017
 

By Gerald

Many people wonder as to why workers are forced back to work on the opinion of a “Board” doctor as opposed to a workers primary care doctor which happens all the time. Here is the answer. WCB Medical services provided all doctors with what were called medical duration guides which quite simply was the average length of time it should take for a full recovery from a work related accident. WCB Medical Advisors who never examine a worker would use these guides to determine when the worker should make a full recovery. As any one who is familiar with medicine knows, some people recover much earlier than others and some may recover much later or not at all. A WCB Medical Advisor would be asked by the Case Manager if the worker has recovered from an accident or illness and the WCB Medical Advisor would go to the duration guides and determine that the worker should have fully recovered despite the primary care doctor who has a duty of care to the worker and will not sign the WCB form indicating the worker can return to work. The worker is told that the WCB Medical Advisor has determined that the worker has recovered and they must return to work or have their benefits terminated. This evidently happened to Patrick Clayton who injured his knee and was sent back to work based on medical duration guides.

The Alberta WCB redesigned their web site and in doing so like everything else that could incriminate them decided to eliminate any trace of the medical  duration guidelines. I have searched for these guides and unless I have missed them, they are gone which is a good thing for workers now but evidently was not a good thing for workers who were forced to return to work and re-injured themselves more severely than the original injury.