Nov 042018
 

By Gerald

There is no denying that the burden of proof in the workers compensation
system is entirely on the “Board” but our Justice Minister like her
predecessors does not want to admit that the adjudication by Case
Managers, DRDRB and the Appeals Commission have been and continuing to
use the wrong legal standard by using civil law or tort law in
adjudicating claims. This was the decision of Justice Bruce Millar who
determined that workers compensation systems in Canada are by law
required to adjudicate claims based on an Inquiry model, not an
Adversarial model which is the the standard used in civil law. Justice
Millar’s decision should have sent a message to WCB and the Appeals
Commission, and set a precedent resulting in all long standing claims
being reheard.

In Justice Millar’s decision, he directed that the Appeals Commission
contact the employer to obtain facts that WCB had failed to investigate
and had led to having to file a Judicial Review. The Appeals Commission
refused to comply and denied the claim for the second time, forcing us
to file for another Judicial Review which was heard by Justice Yamauchi.
Justice Yamauchi should  have upheld the decision of Justice Millar
based on the legal principles of res judicata and issue estoppel as
another Judge cannot by law hear the same case. Questionably is why
Justice Yamauchi did not do what is required in cases that have been
determined already. Notably is that Justice Yamauchi was one of the
Judges who were under review and found by the Alberta Appeals Court to
be lacking in judgement in a sexual assault case, thereby questioning
his decision that led to us  losing a case that we had already won.
Click on the following link:
https://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959.

Oddly enough is that Justice Millar’s decision was not posted on Canlli
with the most logical reason that his decision would have been a damning
condemnation of the appeals process. I suspect that WCB and the Appeals
Commission requested through the Justice Minister’s office that Justice
Millar’s decision not be posted on Canlii. I have the transcripts of the
action we filed and Justice Millar’s decision that went against the
Appeals Commission and WCB. What other reason would there be for not
posting on Canlii.

The corruption surrounding WCB and the Appeals Commission is aided and
abetted by the Alberta Government through not allowing the public to
read decisions that are extremely important to cover up the abuse of
power in a public office.

For clarification as to who has the burden of proof in workers
compensation systems in Canada,I am enclosing Dr. Terence Ison’s
explanation. Dr Ison before his death was a law professor who
specialized in workers compensation law and was recognized as being
Canada’s leading expert in workers compensation.  Click on the following
link and go to page 814 for clarification.

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1620&context=ohljbut
.

Nov 022018
 

By Gerald

I have often wondered how the Alberta WCB could have the lowest premiums in Canada and one if not the highest rate of denied claims. As it turns out, the Alberta WCB and the Appeals Commission  are using the wrong legal standard which I found out while reviewing information that was provided to me by two disabled workers specific to their claims who had their claims denied despite the majority of claims in other provinces being accepted as opposed to Alberta where the claims are denied. The Alberta WCB and the Appeals Commission when adjudicating claims are using legal standards based on civil law rather than a lesser standard that is used in other provinces. In civil law, the burden of proof is on the plaintiff and based on a balance of probabilities. For example all civil claims start off in a neutral state and if a case remains in a neutral state, the plaintiff loses. In the workers compensation system according to decisions found on Canlii, if a claim remains in a neutral state, the worker is supposed to have their claim or benefits accepted. The reason for the lesser legal standard specific to the civil standard and balance of probability, in workers compensation systems as opposed to the balance of probability that is used in civil law is that when a claim remains in a neutral state the the benefit of doubt when adjudicating a claim is supposed to go to the worker. A neutral state is when the evidence neither supports causation nor does the evidence show contrary. Medical opinions without medical based evidence is not considered evidence in the courts and considered to be hearsay but in the workers compensation system in Alberta for whatever reason a medical opinion that is not based on medical based evidence is used by lay people adjudicating claims to be used when evaluating the weight of evidence. In all workers compensation system, scientific evidence specific to causation is not a requirement and is based on common sense and logic which is a much lesser standard than civil law.

The Alberta WCB also misunderstand when determining causation that significant cause does not mean a greater or more noteworthy cause, it simply means more than a trivial cause as noted in the case cited as Athey v. Leonati (SCC) {1996}. In the SCC decision cited as British Columbia (Workers Compensation Appeal Tribunal v. Frazer Health Authority 2016 the SCC determined that if the evidence is evenly weighted on any issue a Tribunal must resolve the issue in a manner that favors the worker. In other words the burden of proof is not the civil burden of balance of probabilities. Where the evidence leads to a draw, the finding must favor the worker. Question is when did the Alberta WCB go to a civil standard of adjudicating claims which is contrary to the Meredith Principles which imposed a standard that was totally different from the civil standard used in civil proceedings in courts. When did the burden of proof shift from the “Board” to the worker? If it cannot be proven that there was a causal relation then it must be proven by the “Board” that a non occupational incident caused the injury or disease. Material contribution also cannot be used in the workers compensation system as that is also the civil standard that is used in torts. This cannot be left in limbo but unfortunately the “Board” denies a claim based on no evidence to support a work related cause but cannot and never do determine what non occupational factor caused the injury or disease. Question is when filing a claim, why is the worker defined as the plaintiff. That being the case, who then is the defendant. Is the employer the defendant and if so why then are they not involved in the process. In actuality, the “Board” takes on the role of the employer and becomes the defendant, thereby representing the employer.

WCB Policy 02-01 Part 2 Application 7 that became effective by WCB April 1, 2014 is therefore illegal as this policy uses the civil legal standard which uses the “but for” test and “material contribution” test which has no place in a system that is supposed to be for the benefit of workers and not to protect the accident fund as is done in Alberta. This also questions why the Appeals Commission rely on the Alberta Rules of Court which is a civil standard when a worker requests the Appeals Commission subpoena doctors who disagree on everything and the Appeals Commission advise the worker that if a doctor is subpoenaed, workers must then pay for their attendance which exceeds over $700.00 an hour. How many workers can afford to pay for a doctor’s attendance to explain their opinions. Rather than to explain their opinions by being subpoenaed, decisions are made by lay persons with no medical qualifications to make any decision which they make on a documentary review substituting the doctors opinion for their own opinion or interpretation what the doctor is saying in the documentary files. The wrong legal standard in workers compensation can be proven by review of Policy 01-03 Part I Int. I which states that a worker is not required to provide proof beyond a reasonable doubt. In the workers compensation system a worker does not have to provide any proof at all as under an inquiry system the burden of proof is entirely on the “Board”

If in fact, the correct legal standard had been applied, firefighters would not have had to pay Dr. Guidotti to perform an epidemiological study to determine that firefighters have more than twice the risk of getting cancer when compared to the general population. Workers who are not organized would not be able to fund a study which according to the courts does not require scientific proof  because cases can be adjudicated on common sense and logic with the benefit of the doubt always goes to the worker which is a lesser standard than used in civil law. The fact of the matter is that if epidemiological evidence was affordable for workers, most occupations would have more than double the risk when compared to the general population. Providing one occupational group with presumptive status for any medical condition is clearly discrimination as other occupational groups have a much higher risk of cancer, heart attacks or any other medical condition than fire fighters or first responders. Reliable studies have concluded that his is a proven fact.

At the time of the Meredith Principles, compensation was paid for a loss of earnings. Workers received no benefits for pain and suffering. Prior to Jan 1, 2018 WCB had discretion to provide workers with an award for pain and suffering. Since Jan 1, 2018 legislative changes to the WCA directs that WCB pay workers for pain and suffering.Pain and suffering is provided through impairment ratings that besides paying for a loss of earnings, employers must now pay for pain and suffering costing millions of dollars to pay for something that employers never agreed to pay.

The Appeals Commission do not know what constitutes a neutral state which occurs quite often because of the conflicting medical opinions. Conflicting medical opinions are then weighed by lay people who have no idea whose medical opinion is more compelling. Often times a general practitioner has more knowledge than a specialist and often times a lay person with an interest in a specific disease or injury has more knowledge than either of the two. The Appeals commission has this idea that the negative is presumed if there is a lack of positive evidence. In the workers compensation system, the negative cannot be presumed for lack of positive data. This is referred to as a neutral state and the benefit of doubt has to go to the worker. As long as a medical condition cause is unknown or idiopathic, the benefit of doubt has to go to the worker. This is a fundamental principle of all workers compensation systems but when the Government appoints Appeals commissioners based on their political affiliations rather on common sense, logic and an understanding of the principles behind the formation of workers compensation that began over one hundred years ago and all it takes is for the prevailing government to appoint intellectually challenged morons to adjudicate claims, the system rots from the inside out.

Being that decisions are being made based on the legal standards of civil procedure, this then is not an inquiry system, it is an adversarial system where workers become the plaintiffs and the defendant (employer) is not involved but is represented by the “Board”, supported by the DRDRB and the Appeals Commission who deny claims because a worker by law cannot investigate to gather evidence, cannot afford to fund epidemiological studies, cannot afford to subpoena witnesses and cannot opt out of a dysfunctional system and choose to file civil action against an employer. In the old Alberta WCA that was became law in 1908, workers had a choice to have their claims adjudicated by the “Board” or choose to file a civil action against the employer. That choice was rescinded and the only recourse for workers is to have a corrupt “Board” and incompetent and biased appeals commissioners who are hired by an employer (Alberta Government) to adjudicate their claims. The choice to file a civil suit is far more lucrative than having to fight with WCB as witnessed by a civil suit that has just been concluded against Monsanto https://www.cnn.com/2018/08/10/health/monsanto-johnson-trial-verdict/index.html

Workers were far better off prior to the Meredith Principles than they are today if workers have the burden of proof in what is obviously an adversarial system and not an inquiry system as workers have been led to believe. The adversarial system is a far better alternative than whatever system WCB and the Appeals commission use today as prior to Meredith, all workers had the right to sue, their case heard by a jury of their peers and all they had to do was to prove negligence on the part  of the employer which is far easier to prove than causation. Today workers claims are heard by lay people who are incompetent, have no idea what legal standard is supposed to be used in adjudicating claims and their decision cannot be overturned by the courts. Obviously there is confusion when Justice Bruce Miller determined that in the workers compensation system, the burden of proof is on the “Board” and directed the Appeals Commission to do their due diligence and contact the employer to gather the facts and the Appeals Reconsideration Panel refused to comply and came back with the same decision that led to the initial Judicial Review which I had won and was awarded costs and disbursements.  Justice Yamauchi on the subsequent Judicial Review disagreed with Justice Millar and determined that the worker had the burden of proof and we lost. Oddly enough when we lost we would have had to file an appeal with the Alberta Court of Appeals, yet when WCB and the appeals Commission lost, the case went back to the same body that had denied the claim. This obviously is against the Rules of Natural Justice when the same body is reviewing their own case.

I am appalled by some of the short comings of the system when workers request I review their files. I am considered to be a knowledgeable person when it involves workers compensation specifically in Alberta although most workers compensation systems have similar legislation, policies and regulations. There are some very knowledgeable Appeals Commissioners who make consistent and good decisions but unfortunately none of these Appeals Commissioners are in Alberta. Other jurisdictions also do not always make unanimous decisions as is evidenced by reviewing WCAT decisions or WSIAT decisions  unlike Alberta Appeals Commission decisions which are always unanimous, never any dissenting decisions.

Contrary to what is believed, the Alberta WCB is not a neutral body. The Alberta WCB is a member of the Alberta Chamber of Commerce, is an employer and pays premiums on behalf of their employees. The Alberta Government is not a neutral body, they are an employer and pay premiums to WCB for their employees.

Rather than ad hoc reviews that result in superficial changes that become effective in 2018, these superficial changes do nothing for workers who were defrauded from receiving appropriate compensation for their disabilities. To rectify this, all long standing claims must be re-adjudicated by competent, unbiased members of the general public based on the Meredith Principles and not on the rules of civil procedure. What is required rather than superficial changes that only benefit those workers who are injured in 2018 is a Judicial Inquiry or more so a public Inquiry as to whether we go back to the fundamental purpose of workers compensation as stated in the preamble of the Alberta WCA and the Meredith Principles or continue to treat workers with contempt and unfairness.

Last but not least the Manitoba Workers Compensation system adjudicates claims the way they were intended to be adjudicated. This was taken from the Manitoba Workers Compensation site and  it states;

V. Principles of Adjudication Inquiry Model

The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement.   Click on the following link to verify; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf

If all workers compensation systems are supposed to be adjudicating claims based on the same legal standards, why then is it that in Alberta, the burden of proof is placed on the worker?  Perhaps Ms. Gray or Ms. Notley can answer that question and if not then this issue should be taken into the courts and let the courts determine who has the burden of proof in the workers compensation system. Perhaps this is a good class action suit based on misfeasance in public office.

Sep 252018
 

By Gerald

The following story is indicative of a system that is totally broken when Case Managers, DRDRB are understaffed, under trained and do not have time to make reasonable and correct decisions, thus leading to simply denying a claim or benefits forcing workers to appeal  decisions that overload the Appeals Commission who then take months or years to provide a decision. This is not expedience which is one of the four fundamental principles of the workers compensation system. Undoubtedly this will get worse as the new legislation and policy comes into effect with many Case Managers not being aware of the major changes although most Case Managers, DRDRB and the Appeals Commissioners have no expertise in law or medicine and do not know how to interpret the old and existing legislation and policies. The whole system is nothing more than a gong show.

Workers’ Compensation workers from across Canada meet to discuss crushing workloads and the need for sweeping reforms for mental health injuries

PRESS RELEASE PR Newswire

Sep. 24, 2018, 02:37 PM

NIAGARA FALLS, ONSept. 24, 2018 /CNW/ – Representatives of the major unions representing Workers’ Compensation Board (WCB) workers in Canada met to discuss issues that impact injured workers, employers and employees of workers compensation boards.

The Canadian Union of Public Employees (CUPE), National Union of Public and General Employees (NUPGE), and the Public Service Alliance of Canada (PSAC) represent Workers’ Compensation employees in Canada’s ten provinces and three territories.

The conference focused on two primary issues affecting employees of WCB’s and injured workers alike. Sadly, unreasonable workloads are experienced by workers in multiple sectors across Canada. No one is immune from the negative health impacts of heavy workloads.

All employers including Canada’s Workers Compensation Boards have very specific legal duties to protect workers under health and safety legislation. Union representatives hold the view that “excessive workload” is a serious health and safety issue negatively affecting employee mental and physical well being.

The unions have decided to hold their respective Provincial Legislative bodies accountable for the lack of safeguards designed to protect working people from the devastating impact of excessive workload. Each compensation organization is full of talented professional staff that routinely put in more than an honest day’s work.

“It is inexcusable that staff are prevented from doing the kind of job that they are capable of because of employer indifference to creating manageable workloads.” said Tamara Elisseou president of CUPE 1866.

Lloyd Samson, president of Local 55 of the Nova Scotia Government and General Employees Union (NSGEU) said, “We want to ensure that the system remains focused on safety and prevention but ensures comprehensive and fair coverage for injured workers.”

Debbie Wallace, president of Local 2180 of the Saskatchewan Government and General Employees’ Union (SGEU) said, “It is important that the views of the workers who are expected to operate the system be heard and respected. We are the workers who know where the system is flawed and how it could be improved for all workers in all sectors.”

“We leave this conference with the view that Provincial Governments must expand existing compensation legislation to help those suffering from the effects of work overload. Governments must also take tangible steps to strengthen prevention and enforcement in order to better protect the well being of all workers,” said CUPE 1750 president Harry Goslin of Ontario and host of the event.

SOURCE Canadian Union of Public Employees (CUPE)

Jun 232018
 

Are you an injured worker? Do you have something to say about Bill 30? The treatment of injured workers in this province in general? Would you like to be part of a short film of injured workers expressing such opinions? Come to the north steps of the Alberta Legislature at 2 p.m. on Thursday, June 28. A videographer will be available until about 3:30, who will put together a short film for our website and social media. There is also a Facebook event here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

May 252018
 

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

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