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.

May 012017
 

By Gerald

The article that I am sending is and should be very interesting to anyone with any intellectual capacity to understand the difference between the system in the U.S. as opposed to the system that is supposed to be in Canada.Of course like everything else workers are told, everything that the Government and WCB tells workers is a lie. In the U.S. the system is based on an Adversarial system (the worker or legal counsel has the burden of proof) which obviously requires Legal Counsel to represent workers. Lawyers representing workers in the U.S. only get paid if they win the case and if they win, they are paid disbursements and costs by the defendant which is the insurance company (WCB) who is acting on behalf of the employer.

In Canada, the historic agreement resulted in what is referred to as an Inquiry system where the burden of proof is supposed to be on WCB both for and against who are supposed to be a neutral party who has by statute the exclusive jurisdiction to gather the evidence thus placing the entire burden of proof, both for and against on WCB resulting in no burden of proof on either the worker or the employer. Being that WCB is supposed to be a neutral body who has exclusive jurisdiction to investigate and gather the evidence, there would be no need to have Legal Counsel, however what is supposed to be is not what is happening. Workers in Canada for some odd illegal reasoning being forced into an Adversarial system where workers have the entire burden of proof and having WCB and the Appeals Commission representing employers.

This becomes very evident especially in Judicial Reviews where a worker either represents themselves or has to incur significant debt to hire a lawyer. Both WCB Legal counsel and the Appeals Legal Counsel work together against the worker with both being paid out of the accident fund and if they lose, costs and disbursements are paid to the worker or Legal Counsel out of the accident fund as opposed to the worker who if they lose must pay their Legal Counsel and also must pay the costs and disbursements of both the WCB and the Appeals Commission. If witnesses are required, the cost of witnesses are borne entirely by a worker and if WCB and the Appeals Commission require witnesses, the cost is taken out of the accident fund. Seems that the Government believes this is a fair system but it does not take a rocket scientist to figure out that this is not a fair system when a worker does not have a hope in hell of beating WCB and the Appeals Commission when their legal costs come out of their own pockets and WCB and the Appeals Commission’s costs come out of the accident fund that is funded by tax payers who subsidize the the accident fund by having to pay to support workers whose claims and benefits have been illegally denied. The Government must rethink the whole purpose of having workers compensation when workers have to fight for benefits that they are entitled to.

Click on the following link: http://clearwater.legalexaminer.com/workplace-injuries/workers-compensation-attorneys-fees-nope-its-the-benefits-dummy/