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.