Jun 202012
 

 

” It cannot be said that the Board is independent insofar as the worker is concerned. It is a Board set up to protect the employers. The Board is funded by the employers, and the Board has a duty and probably a primary duty to protect the employer. In relation to the worker, the Board has an overwhelming wealth of knowledge and experience. It has the financial ability to fund sophisticated investigations involving highly qualified experts and have the material presented to them, guided, orchestrated and propounded by its in-house counsel responsible to the Board and paid for by the Board. The application of any standards under the rules of natural justice would identify such circumstances as being unequal in negotiating ability and unfair. This is not a level playing field, it is not fair, and it offends the basic principles of natural justice.”

– Justice Maclean – Court of Queen’s Bench of Alberta

 

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.”