Feb 052018
 

by Gerald

The class action  Ontario against the WSIB has opened up a can of worms which will have a ripple effect all across Canada as all workers compensation systems in Canada do not follow the thin skull rule.To learn more about what started all of this click on the following link: https://administrativejusticereform.ca/wsib-and-the-ontario-court-of-appeal-decision-in-the-castrillo-class-action/

The thin skull rule was a subject of appeal to the Supreme Court of Canada cited as Athey v. Leonati: https://www.canlii.org/en/ca/scc/doc/1996/1996canlii183/1996canlii183.html

Simply put in the workers compensation system an employer must take a worker as they found them. Obviously, when an employer hires a worker with a pre-existing medical condition, the employer when paying premiums pays for the whole person, not simply a specific body part which makes it illegal to pay a worker compensation for only the body part that was injured. . 

For example; When reviewing Appeals Commission decisions, there are 2,218 decisions specific to pre-existing degenerative disc disease. Using the thin skull rule, if there was an aggravation of a pre-existing DDD, WCB would only pay for the work related injury that caused the aggravation up to the time that medical guidelines indicated that the worker should have made a complete recovery and if the worker did not recover, it was determined that it was the pre-existing non compensable DDD that was responsible for the delayed recovery and the claim would be terminated.  Under the think skull rule, this would be illegal as the pre-existing DDD is compensable and the employer was paying premiums based on the whole person which included the pre-existing DDD. 

Obviously when hiring any worker with pre-existing medical conditions an employer is purchasing insurance for the whole body and as well as any pre-existing condition whether it be a worker with heart problems, respiratory problems, psychiatric problems, vision, hearing, any chronic diseases, previous injuries to the spine, lower extremities, upper extremities, musculoskeletal disorders etc. Besides the thin skull rule, their also is the crumbling skull rule which also has to be considered by WCB when adjudicating claims. 

According to WCB Policy 03-02 Part I and II,“if a permanent disability results from a claim under this policy, the WCB will establish the portion of the permanent disability directly attributable to the aggravation” .Under the same policy it states; “when the pre-existing condition is permanently affected by the work injury, the WCB uses the following formula to determine the proportion of the clinical impairment reasonably attributable to the aggravation and to prorate the permanent disability award”. Under the same policy it states; “although the WCB prorates awards which are based on clinical impairment, it accepts full responsibility for permanent loss of earning capacity if, despite a pre-existing condition, a worker was able to perform the job duties prior to the compensable accident and is no longer able to do so because of the compensable injury” When interpreted, it is obvious that the Alberta WCB is not in compliance with the thin skull rule and then provides ambiguous and convoluted information that implies that if a worker was able to perform their job duties despite the pre-existing medical condition, WCB accepts full responsibility for permanent loss of earning capacity which is a lie as if the pre-existing condition develops as a result of a work related accident and they determine that the pre-existing condition is prolonging a workers recovery, they terminate the claim.    

The civil suit by Mr. Castrillo was specific to a NEL award (NELP in Alberta) which resulted in apportioning PCI rating ratings and subtracting the pre-existing medical condition from the whole person impairment rating resulting in a reduced PCI rating. Unfortunately for WSIB, the thin skull rule also results in how workers compensation systems provide compensation for pre-existing conditions by not paying anything when a pre-existing condition prolongs recovery. At this time, the class action is specific to only the NEL award but as this winds down, it will also include any pre-existing condition and would also include an earning loss or ELP where a pre-existing condition did not resolve within the medical healing guidelines and the claim was terminated even though the pre-existing condition continued to prevent a worker from resuming any kind of employment. Normally, a worker in this situation applies for AISH or CPP disability and is accepted resulting in tax payers paying for a work related injury.  

As the author of the attachment I have provided suggests, this could have very serious financial implications for all workers compensation systems in Canada in how they pay compensation for pre-existing medical conditions under the thin skull rule. 

This is a case similar to the Martin/Laseur case which was specific to the the Functional Restoration (Multi-Faceted Pain Services) Program Regulations which discriminated against workers diagnosed with chronic pain and then having the Nova Scotia WCB being blind sided by the Supreme Court of Canada going further than what was anticipated by the Nova Scotia WCB determining two different issues, the Functional Restoration (Multi-Faceted Pain Services) Program as being contrary to Section 15.1 of the Charter and determining that PCI ratings had to be assessed for chronic pain which was the major reason for the extremely high costs that the Nova Scotia WCB had to pay for the PCI ratings provided to workers for chronic pain. As I have written before, the Alberta WCB did not and has never complied with the SCC decision specific to chronic pain and the assessment of a PCI rating. Fortunately for WCB, they have friends in Government that know that they are not in compliance and will do anything to protect the sacred cow. The study by Noonan and Wagner supports the fact that the Alberta Government has not enacted any regulations or legislation to force WCB to comply with the SCC decision to recognize chronic pain which would make the Alberta Government complicit in a contravention of Section 15.1 of the Charter. Click on the following link that shows the results of the study by Noonan and Wagner  http://ijdcr.ca/VOL04_01_CAN/articles/wagner.shtml

I have to commend Ms. Notley and Ms. Gray for their attempts to fix a badly broken system which undoubtedly is the most corrupt organization on the face of this earth. None of this is the fault of the NDP as they inherited the system from the Conservative Government that allowed a once good system to erode under the watchful eye of the Conservative Government who allowed a once good system to destroy itself. Can t be fixed? Yes it can, but not by the methods now being contemplated based on recommendations from three people who have no idea what is required to fix the system simply because they themselves have never reviewed claims, have no knowledge of medicine and how medical opinions shape every decision made by adjudicators, no knowledge of administrative law or the whole purpose and philosophy of how the system was intended to run. 

From a very early stage we are taught that oil and water do not mix. The same is true of attempting to mix medicine and law. You cannot mix impairment and disability. Impairment is a medical term. Disability is a legal term that applies to a disability in the world of insurance and compensation. Impairment is referenced to a persons ability to perform simple basic activities of daily living. Disability is defined as a decreased ability of an individual to meet occupational demands, measured as a loss of earning capacity. You cannot multiply an impairment rating by net earnings resulting in a permanent partial disability. For any one to think that this method will result in a PPD, that person would have to be a total idiot. Multiplying an impairment rating by net earnings will result in one worker receiving a lifetime windfall and another worker receiving a shortfall. For example: A young well educated banker receives a 10% PCI rating based on $100,000.00 a year with no loss of earnings would receive a lifetime pension of $10,000.00 a year as opposed to a grade school heavy manual worker with a 10% PCI rating based on $30,000.00 net earnings who would receive $3000.00 a year for the rest of their lives and more than likely may have a total loss of earnings from performing his/her date of accident job. Obviously, this is not how impairment ratings were ever meant to be used but when you have idiots using impairment ratings as a direct method of rating a disability,this is what happens.

In Ontario, the blame for all of this was placed on an acquaintance of mine, Dr. Chris Brigham who was the Senior Editing Chair of the AMA Guides 6th Edition. I also have as acquaintances, Dr. Linda Cocchiarella and Dr. Gunnar Andersson who were the Co-Editing chairs of the AMA Guides 5th Edition. Another acquaintance of mine is Dr. Emily Spieler, a well known Law Professor and former Commissioner of the West Virginia Workers Compensation Board. According to the AMA Guides, apportionment in a medical environment is perfectly legitimate but is illegal in a legal environment (thin skull rule) Apportionment when used in a medical environment is used when regional impairments are converted to a whole person impairment. If a person has an injury to another region of the body, this impairment rating is converted to a whole person rating. The first regional whole person rating is subtracted or apportioned from the new regional impairment rating to separate the two regional whole person ratings and then combined using the combined rating table.  

For example; If you have two regional impairment ratings of 20% and 40% this does not equal 60% as would be expected by lay persons. Using the combined ratings table results in a whole person impairment rating of 50%. The whole reason of combining is to ensure that a whole person rating never exceeds a 100% PCI rating which is when all functions cease and the person is dead. It would appear to me that all workers compensation systems in Alberta and the rest of Canada are run by brain dead people. 

I did discuss the Ontario fiasco with Dr. Brigham and him being blamed by the Ontario Injured Workers Group for what happened there. At this time he also told me that he was being sued in a class action by Hawaiian workers because the AMA Guides 6th Edition reduced the PCI ratings from the AMA Guides 5th Edition which again having brain dead people using PCI ratings as a direct method of assessing a disability would and does result in a reduced disability pension. The Guides were never meant to be used a s a direct method of rating a disability but rather than Governments stopping this illegal practice, the blame was placed on the AMA Guides.

Rather than have to sue these brain dead people in a class action lawsuit which WCB has no hope in hell of defending themselves, it would be a much better idea to simply have Ms. Gray and Ms. Notley do the right thing, have WCB and the Appeals Commission admit that they have cheated workers and employers (this was not an honest mistake) appoint  Review Panels as per Section 157.1 of the WCA to hear long standing claims and if necessary have both WCB and the Appeals Commission charged with criminal fraud (Section 380(1) or breach of trust. (Section 336 of the criminal code). It is rather ironic that if I or any other person are guilty of any criminal violation, we are not allowed to plead ignorance or having made a mistake, yet these shysters can plead ignorance or making a mistake which is pure and simple bullshit as evidenced by the fact that impairment and disability were totally separated on Jan 1, 1995 after the court decisions in Alberta, Nova Scotia and the Yukon where the courts determined that an impairment and a disability are not the same thing.  An impairment is a medical term used by the medical profession to measure a whole person impairment and a disability is a legal term that is used in the legal profession specific to compensation. 

Alternatively, any individual can file a civil suit against WCB with or without a lawyer if a worker was diagnosed with chronic pain and never received a PCI rating or the direct PCI rating was illegally used to assess a disability. I would assist anyone at no cost to the worker as long as the civil case was heard in Calgary. There would be no defense as the Alberta Court of Appeal has already provided a decision which no court in Alberta has jurisdiction to have the Alberta Court of Appeals decision over turned. As this decision was never appealed by WCB or the Appeals Commission to the Supreme court of Canada, that decision stands.

With all organizations the buck has to stop somewhere. Following the chain of command, it is the Government who forced workers and employers into a corrupt system and then abandoned them.  The Alberta Government selects the WCB BoD. The WCB BoD selects the President. The President of the WCB according to the WCA ( Section 8 of the WCA) is the Chief Executive Officer of the “Board” who advises and informs the BoD on the operating, planning and the development functions of the “Board”, is responsible for the implementation of policy as established by the BoD, in accordance with policy as established by the BoD be responsible for all functions related to personnel and carry out any other functions and duties assigned to the President by the BoD. The Alberta Minister of Justice is responsible for the Appeals Commission. The Alberta Government state that the the Minister, Gray is responsible only for the WCA, the WCB BoD is responsible for policy, and it would appear then the the President Kerr is responsible for everything other than the Appeals Commission which is the responsibility of the Justice Minster, Ganley. It would be fair to conclude that there is a joint shared responsibility by the Alberta Government, WCB BoD, the President and the Justice Minister as to the corrupt state of the Alberta WCB. Having said that, whose responsibility is it then to fix the entire system. This responsibility rests with Notley who clearly is not doing her job as leader of the Government in power where the buck stops or is supposed to stop.   

While what I suggest may not make me overly popular with workers, I would suggest getting rid of PCI ratings altogether but provide workers whose injuries occurred prior to any change in policy using the PCI ratings which came into being when some brain dead person, not having a clue, decided to use PCI ratings. This was not agreed to by workers and employers who supposedly fund the system but in reality they do not. The historic agreement was based on a system to replace an earning loss, not to provide an award for difficulty defecating, urinating, brushing teeth, combing hair,, bathing, eating, dressing oneself, writing, typing, having an orgasm, ejaculation, lubrication, getting an erection, sleeping. Getting rid of this would result in millions of dollars in savings for employers and reduce premiums thereby increasing overall employment when because of lower premiums relocate to Alberta and also keeping employers in Alberta. 

In my opinion, how we treat people, especially our most vulnerable people, the disabled, seniors, children, women, sexual orientation, gender identity, ancestry, place of origin, religion, color, providing housing for the homeless to name a few extremely important duties of Government and are far more important than building pipelines, building roads, bridges, carbon taxes, reducing carbon emissions, enacting laws that provide special treatment to some occupations and not to others. 

Jul 142017
 

By Gerald

According to the Meredith Principles, all workers compensation systems in Canada were to operate under the legal standard which was to be an Inquiry model, not an adversarial model, yet all decisions made by the WCB and the Appeals Commission are made under the adversarial model where the burden of proof is placed on the worker which is the civil standard. We now have more presumptive legislation that removes the burden of proof from some workers while placing the impossible burden of proof on other workers. 

Odd that in Manitoba, the Inquiry model places the burden of proof on the “Board” and it is stated;

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.

From the Osgoode Hall Law Journal it also states;

With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant

This being the case why then in Alberta is the impossible burden of proof placed on workers?

Click on the following link; https://www.mykawartha.com/news-story/7421045-coalition-for-ge-workers-agrees-on-how-to-proceed-with-compensation-from-the-province/

Legislation providing presumptive status for some workers and not for others is obviously discrimination. Why is legislation not enacted to provide all workers with presumptive status and enact legislation that places the burden of proof on the Board to prove that work was not causally related to an injury or disease which is the most logical way of stopping some workers from collecting benefits while other workers claims are denied because of the impossible burden of proving causation when workers are financially incapable of funding studies to determine causation. This defies any logic or common sense when the “Board” has exclusive jurisdiction to investigate all matters and rather than place the burden of proof on the “Board” places the burden of proof on the worker. This is called administrative fairness. What the hell is wrong with our elected Governments to allow this.