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.

Jan 142017
 

By Gerald

After reviewing 103 New Brunswick WCAT decisions specific to causation it is obvious there is a problem in a number of provinces including Alberta with interpretation of the presumptive legislation that is legislated by all provinces. It seems that there is no common ground on how to determine causation based on the presumptive legislation of each province. Is causation based on medical certainty, medical opinion, but for and material contribution test, or common sense and logic as has been determined recently by the SCC in the Fraser Health Authority decision involving breast cancer in the nurses diagnosed with breast cancer. Is workers compensation based on the strict rules of civil law or is it based on a lesser standard such as has been determined by the SCC. Is workers compensation based on an Inquiry system or is it based on an Adversarial system. According to the Alberta WCB presumption only occurs when epidemiological evidence results in workers having double the risk as those in the general population meaning that the Alberta WCB and the Appeals Commission are of the opinion that all claims involving causation must be based on medical certainty or a higher standard than probability or common sense and logic. After one hundred years, this convolutive and corrupt system has been allowed to continue without any direction as to what the purpose of workers compensation really is, is workers compensation supposed to be there for workers without having to fight to have a claim accepted or is it there for the economic and protection from civil action for employers.  

WCB systems and the courts across Canada are not interpreting the legislation the same way. Who is right and who is wrong is a mystery. The Alberta WCB interpretation of the presumptive clause is that if one of the conditions (arises out of employment) is present) then the other condition (in the course of employment) is presumed or vice versa that if the time and place is present, then it is presumed that there is risk factors (arose out of employment). That obviously is the incorrect interpretation as is evident that the legislation is presented as a two part scenario. I shall explain.

The first part is specific to (arose out of employment) which considers risk factors. If there is risk factors in the work environment unless the contrary can be proven or shown, the claim should be accepted as time and place are irrelevant unless the accident is a sudden occurrence. Common sense and logic would indicate that when a worker is exposed to these risk factors on a daily basis, that there need not be any correlation to time and place. Time and place means absolutely nothing and especially so when adjudicating claims that involve progressive injuries or diseases.

Determining risk factors is problematic. Are risk factors determined in workers compensation systems based on medical certainty, medical opinion or based on common sense and logic? Are risk factors in workers compensation determined on the strict rules of civil law, the but for and material contribution test or on a lesser standard, common sense and logic as has been determined by the SCC? Are workers supposed to be given the greatest of latitude as has been determined by the courts or no latitude at all? If causation is based on medical certainty or medical opinion, presumption does not enter the picture as there obviously would be no way to prove contrary. If causation was determined on a de-minimus standard, then presumption would enter the picture and a contrary cause would would have to be presented to rebut the presumption. A negative opinion is illegal without specifying where outside of the work environment, the accident occurred and identifying the risk factors. If a cause is unknown, the claim has to remain in the neutral state and the benefit of doubt has to go to the worker, not remaining in a neutral state and the claim going into limbo  until medical science gets around to performing studies which in numerous cases may be never. For example: Preisers and Kienbocks disease were first noted in 1910 by Dr. Preiser and Dr. Kienbock and both have been causally associated with the work environment, yet workers diagnosed with these conditions have their claims denied. Why? 

A good example of not interpreting the presumptive clause correctly involves firefighters. There was no need to enact legislation that discriminates against other occupations. Using common sense and logic, fire fighters are exposed to hazardous toxins on a regular basis, which when based on common sense and logic, would result in risk factors. Time and place is totally irrelevant. It is grossly illogical for any one to suggest that a fire fighter has to provide the precise time and place that he/she was exposed to toxins, thus supporting my argument that time and place is in most cases totally irrelevant. The length of time a fire fighter (years of exposure) has been determined by the courts in the U.S. as a condition of causation has been found to be discriminatory as the court determined and correctly so that whether a fire fighter is exposed to toxins for one year or less does not reduce the risk of cancer compared to a fire fighter who has been exposed to 10 or 15 years.  Although I do not always agree with the courts, I do agree with the courts in their decision specific to length of time that a fire fighter has to be exposed to toxins. This was my argument to the sponsor of the bill (Richard Magnus) giving discriminatory presumptive status to fire fighters when legislation already was in place to provide all workers with presumption but was being interpreted incorrectly. Length of time has got nothing to do with PTSD as any person can be diagnosed with PTSD when they witness one and only one horrific incident. To suggest that there be numerous exposures to incidents to be diagnosed with PTSD is grossly illogical. Furthermore what affects one person has no affect on another person. This same concept applies to chronic pain. Some people have a much higher pain tolerance than other people. Genetically we are all different and respond in different ways. 

In a Appeals Commission decision I was reviewing, I was dumbfounded by WCB Legal Counsel response to a question when he/she responded that because they were not part of the “action” there was no burden of proof on the “Board”. This response obviously explains that WCB are of the opinion that the system is a civil action brought by a worker against an employer and not simply a victim filing a claim for compensation. The Alberta Rules of Court have been used and continue to be used as guidance to the Appeals Commission. The Alberta Rules of Court are civil rules of procedure that apply to civil law and do not apply to workers compensation. Why are civil rules of [procedure being used in adjudicating workers compensation claims? Why does WCB state that claims are never closed and a reconsideration is granted on new evidence or administrative errors. The Appeals Commission contradict this by providing in their rules of procedure that a worker has 6 months to request a reconsideration based o new evidence. New evidence may take decades to provide so there should not be a statute of limitations at all.

A good example of the morons we elect is our human rights legislation where in the preamble, it states that all persons are equal and then provides legislation that contradicts the preamble by specifying in the protected group who must be treated equally and then forced to continually keep adding to the protected category rather than ensure that all persons are treated equally, not just the people in the protected group.By inclusion, the result is exclusion.

In Alberta presumptive status is based on section 24 (4) of the WCA.

24 (4)  If the personal injury or death of a worker arose out of the employment, unless the contrary is shown, it is presumed that it occurred during the course of the employment, and if the personal injury or death of a worker occurred during the course of the employment, unless the contrary is shown, it is presumed that it arose out of the employment.

In New Brunswick presumptive status is based on Section 7(2) of the WCA.

7(2)When the accident arose out of the employment, in the absence of any evidence to the contrary, it shall be presumed that it occurred in the course of the employment, and when the accident occurred in the course of employment, in the absence of any evidence to the contrary, it shall be presumed that it arose out of the employment.

In Saskatchewan presumptive status is based on Section 27 (1) of the WCA.

     27(1) Unless the contrary is proven, if an injury to a worker arises out of the
     worker’s employment, it is presumed that it occurred in the course of his or her
     employment.
     (2) Unless the contrary is proven, if an injury to a worker occurred in the course of
     his or her employment, it is presumed that it arose out of the worker’s employment.

In Manitoba presumptive status is based on Section 4(5) of the WCA.


4(5)        Where
 the accident arises out of the employment, unless the contrary is 
proven, it shall be presumed that it occurred in the course of the 
employment; and, where the accident occurs in the course of the 
employment, unless the contrary is proven, it shall be presumed that it 
arose out of the employment.

In the Yukon presumptive status is based on Section 17 of the WCA.


17 Unless there is evidence to the contrary, an               
injury is presumed to be work-related if it arises out        
of or in the course of a worker’s employment.  

In Nova Scotia presumptive status is based on Section 10 (4) of the WCA

(4)    Where the accident arose out of employment, unless the con-
trary is shown, it shall be presumed that it occurred in the course of employment,
and where the accident occurred in the course of employment, unless the contrary is
shown, it shall be presumed that it arose out of the employment.
Jan 142017
 

By Gerald

In the U.S. they have opened up a Pandora’s box by providing presumptive status to firefighters. The reason presumptive status is provided in the U.S. is because their workers compensation system operates under an Adversarial system that involves private insurers as opposed to Canada that operates or supposed to operate under an Inquiry system and presumptive status is not required as the burden of proof is not on workers but on the “Board” At least that is how it is supposed to work in Canada but somehow or other the system in Canada has become an Adversarial system. I do believe that any cancer diagnosed for fire fighters is in fact based on the balances of probabilities caused by the work environment. Click on the following link;http://ktar.com/story/1419634/arizona-firefighters-want-10-more-types-of-cancer-added-to-workers-comp-coverage/