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.

Jun 172012
 

November 23, 2006
Faith Shattered State Of Denial Injured Workers Fight For Their Rights
By JEREMY LOOME — Edmonton Sun

Coffee with Betty Chong is like meeting everyone’s favourite grandparent. She’s a stereotypically sweet little old lady – although she might politely argue the old bit.

Though she’s petite and in her mid-sixties, Chong was, until about five years ago, a care attendant for people with disabilities, mostly seniors and kids with severe handicaps.

Then she hurt herself in a fall. Then she went to the Workers’ Compensation Board for help. Then a WCB rehab testing session broke her back. Then the board wrote a letter to her employer and got her fired. Five years later, she is forcibly retired, lonely, and utterly disgusted.

“They degraded me,” she says. “It was a very degrading process. Every way you look at it you’re just a number to them, you’re not important enough to be treated like a person.”

While working at a seniors centre in 2001, she was knocked over by a client, leaving her with a nasty bump on the head and a broken bone in her foot. Earlier that same year, her wrist was damaged in another care-related incident.

She went on temporary disability for less than a year as she rehabilitated and was happy. In fact, she had faith in the WCB because of its rapid and effective help for her husband when he’d broken a foot two years earlier.

By June 2002, the WCB sent Chong to its Millard Centre for a two-day examination of her ability to work. On the second day, she was instructed by a physiotherapist to lift a 45-pound weight to above shoulder height.

Suddenly, Chong felt pain shoot through her side. She told the therapist, who wrote the incident down. Before the second day of testing was completed, she was sent home.

After her husband took her for x-rays, Chong was shocked to find she had a compression fracture in her back and ribs. She called the WCB and told her case manager – only to have the physiotherapist deny there was an incident.

“I’m not a demanding person. I try to get along. I’m not looking for their money, I just want to prove that they’re wrong and that they lied. The woman who hurt me was so scared about losing her job that she didn’t care, she didn’t care about my back, she didn’t care that it was hurting. And she just didn’t write the report up on it.”

In fact, there was no reference to the incident in Chong’s WCB file. So her advocate, Theresa Roper, checked Chong’s other file, at the Millard Centre. Sure enough, there were handwritten notes indicating she’d complained of a “knife-like” pain and was unable to finish the second day of testing.

Roper was stunned when the case manager rejected her submission for coverage of a second accident. She demanded a medical consultant review the file. When the medical consultant found no evidence of a new injury, Roper checked with the doctor, only to discover the WCB had not sent him the Millard Centre file.

Not that it mattered. Even with that information, the WCB not only turned Chong down, it then sent a letter to her employer, Strathcona County, saying she was no longer fit to work in home support due to her age and medical history.

Chong was terminated by the county, and the WCB then decided she was able to return to work at a “medium level” of employment. “The WCB suggested I go to work as a cleaning lady at a motel at the very west end of the Yellowhead. So even though it was right across the city and work that my back pain would make difficult to do, I thought I’d go look at the place. And it’s a dive. And I’m wondering, ‘Who do they think I am, exactly, that I would take this?’ ”

By now, Roper was becoming incensed. They’d not only proven a WCB therapist severely injured her client, they’d also proven the same worker lied to cover up the incident, only to see Chong’s case manager side with the worker, then gotten her fired, then tried to force her back to work.

Roper went over the case manager’s head to a supervisor, who noted on Chong’s file that he felt the therapist was being fraudulent.

Finally, after two years, the WCB relented and paid retroactive disability and home maintenance benefits.

A year later, in 2004, the agency decided that, despite her chronic pain, Chong was fit to return to sedentary work. It took another year for Roper to get that decision overturned and Chong was awarded a lump sum for the back injury.

But she has never returned to work, and the pain in her back rules it out. The people Betty helped were her social circle, so she doesn’t get out much. Besides, she’s afraid that if she slips and falls, she’ll need help from the WCB.

– – –

Betty Chong’s story might sound horrifying. But it’s relevant for more than its shock factor: All of her problems came after the government promised to appoint a contentious claims tribunal, then reneged.

She wouldn’t have qualified for it, of course, because the tribunal – a result of two damning studies in 2000 of how the WCB treats injured workers – was supposed to address a “culture of denial” that led to unfair rejections of disability claims back to 1988. What Chong represents, however, is proof that injured workers still face such a culture, according to workers’ advocate Theresa Roper.

Roper gets paid a flat fee per case, and it’s low. Her income wouldn’t pay a part-time custodian’s salary. She isn’t in it “for the money.”

“Ultimately, if there’s a system set up to take care of people, it should actually happen,” says Roper. “And what it comes down to is that I have hundreds of claims I’ve handled where there is something seriously wrong with the behaviour and conduct of the board.”

Advocate Kevin Becker sees the same. “Case after case after case. They’re not even hard to find.”

It’s a lack of accuracy in case management that wouldn’t be acceptable to private insurers, says Rick Vermette, the former chairman of the WCB appeals commission.

When asked why he thinks the WCB has routinely over the last two decades had 50% or more of its decisions rejected on appeal – despite an appeal system Vermette and others argue is already biased against workers – he is perplexed.

“You know what? That’s a really good question that I don’t recall anyone ever asking before.”

Former WCB case managers, who spoke on condition of anonymity, blame a bureaucratic climate within the WCB. Case management is done in a repressive and fearful atmosphere, where it is made clear daily that the objective of the WCB is to save money, and staff bonuses are in part structured around how quickly files can be closed. Despite being named by one group as one of Alberta’s ‘Top 25 Employers’ of 2006 for offering a multitude of innovative benefits, staff paint a far different picture.

“Staff put up with this stuff because it’s their career, it’s their livelihood. It’s their mortgage,” said David, who spent years in the organization. “When I worked there, internally staff called it ‘The Workers’ Compensation Borg: You will assimilate.’

“As it became more and more of a statistical environment, it became more and more difficult to ‘creatively’ manage these individual cases. And under that intense internal pressure, a lot of people would just break down. The turnover rate there is unreal, and I would say there wasn’t a day go by when I couldn’t walk around and find someone crying at their desk.

“And now that it’s all about numbers, instead of people, it’s just about impossible for an advocate or a claimant to call a case manager without it automatically being adversarial.”

The average blue-collar guy would have no chance taking on the system, David said. “Justice shouldn’t be better for people who have more knowledge than someone else, or tougher on a simple journeyman than on a wealthy executive.

“But the truth is, they skim the surface and they weed out anyone they think they can beat pretty easily.”

– – –

Workers’ Compensation Boards were established nearly a century ago across Canada under the Meredith Principles, which are guidelines to reduce potential liability facing employers and to guarantee workers fair coverage.

The most fundamental is that of natural justice: it must not only be done, it must be seen to be done. But another former WCB staffer says between the internal jostling for advancement and heavy-handed management, justice doesn’t get much consideration.

“If you’re good at what you do or do what’s best for your client, then you’re seen as a troublemaker or a threat. You’re supposed to just shut up and do what you’re told,” says John, who also requested anonymity.

“The way it operates goes against the legislation, it goes against policies and it goes against the Meredith Principles. The most experienced case managers there were the ones who didn’t get promoted, because they weren’t willing to do anything to help the WCB’s position and to hurt clients. That’s why so few of the experienced case managers had cases going to the appeals commission.”

Often, says Roper, the case file is “closed” simply by sending the person back to work prematurely. She has three copies of one worker’s labour market description – a supposedly unchangeable list of a worker’s qualifications and abilities. It has been changed three times, including twice in one day, to reflect decisions that have gone against the worker.

“It’s just crazy. He simply can’t do a basic requirement of the work, and yet they’ve gone to great lengths to demonstrate he can.”

After one too many complaints, John was fired from his case manager job “without cause” and given a settlement. At the time, he was upset. “But now I look back and think it was the best thing that could have happened to me. Most people just quit eventually, because once you have any degree of experience, why would you stay in that environment?”

But many do because the WCB is a great place to work, said spokesman Jacqueline Varga. “Every year, WCB Alberta employees participate in an anonymous employee satisfaction survey, which measures employees’ overall satisfaction with their work environment and internal support services,” she said.

“In 2005, 93% of employees said the WCB was a good place to work. We don’t have this year’s numbers yet but are confident they will be equally as strong.”

The agency retained 90% of its staff last year, Varga said, “an impressive statistic given the opportunities that abound in Alberta’s workscape.”

During his many years working for the board, John says he never once heard management discuss the need to help injured workers or the importance of what they were doing.

“Never. Never once. All I heard from management is: ‘We need to cut costs, we need to cut claims.’ We never heard anything positive about what we did or why we were doing it.

“When I looked at the WCB, I always figured there was that 10% of people who wanted something they just didn’t deserve, something that they just hadn’t earned. But the other 90% really did need the help. And they just weren’t getting it.”