Nov 082018
 

By Gerald

Effective Nov. 1, 2018, Ms. Dale Wispinski was appointed by the NDP
Government as the new Chief of the Alberta Appeals Commission. I have
met Ms. Wispinski during a Judicial Review and if she is to do her job,
she needs to receive training in how the system is supposed to operate
in the adjudication of claims. According to her belief, she believes
that in an inquiry system that adjudication is based on the civil law
standard where the worker has the burden of proof. It was her who
convinced Justice Yamauchi into disagreeing with Justice Millar who had
in an earlier Judicial Review determined correctly that the burden of
proof was on the Board. Quite frankly, the whole Appeals Commission
should be fired and appoint some one who knows what they are doing.

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 212018
 

By Gerald

WCB policy 03-01 Part II Application 7 specific to chronic pain and chronic pain syndrome is broken down into two parts, one part of the policy is specific to chronic pain and the other part of the policy is specific to chronic pain syndrome. According to the policies and how they are interpreted by WCB, DRDRB and the Appeals Commission, workers diagnosed with chronic pain will not receive full compensation benefits as would other workers who are diagnosed with discernible organic diagnosis. Workers diagnosed with chronic pain may receive treatment only as per WCB policy, with no monetary benefits or any rehabilitation benefits. Clearly, this is discrimination. WCB policy 03-01 Part II Question 2 states in part: “WCB may consider treatment for chronic pain” but only if chronic pain has the prescribed characteristics found in question 2. WCB Policy 03-01 Part II Question 3 states in part; “chronic pain syndrome may be compensable” meaning that chronic pain syndrome is compensable ( Compensation is based on loss of earnings,  if a worker meets all the prescribed conditions as well as marked life disruption

If a worker is diagnosed with chronic pain syndrome, according to WCB policy, they will receive full compensation which would include monetary benefits and vocational rehabilitation which also results in discrimination against workers diagnosed with chronic pain who only receive treatment for chronic pain and is contrary to to Alberta Human Rights Legislation and Section 15.1 of the Charter. This is not rocket science and questions what convinced Smallwood and Mason to  dismiss my complaint despite being upheld by the Southern Regional Director (Pardeep Gundara), the Southern Regional Investigator, Shirleen McGovern( Lawyer) and the Director’s Legal Counsel, Jim Foster. Questionably is if WCB paid Mason and Smallwood to dismiss the complaint because the overwhelming cost of having to rehear all claims involving chronic pain and having to pay workers hundreds of millions of dollars in restitution along with interest for the benefits workers are supposed to be entitled to. The complaint was so simple that any moron should have been able to understand, yet Smallwood and Mason dismissed the complaint based on what they considered to be lack of prima facie evidence to support the complaint. Clearly if workers diagnosed with chronic pain  would only receive treatment, no monetary benefits, no vocational rehabilitation, they are not being treated equally but clearly being treated differently than other workers who received full monetary benefit.

As every one knows or should know, Section 56 of the WCA provides a lifelong pension for an impairment rating that WCB were using illegally as a direct method of rating a disability. That has been factually proven by the Alberta C of QB and the Alberta Court of Appeals, the courts in Nova Scotia and the Courts in the Yukon. This means that in order to be assessed a PPD in compliance with Section 56,  a worker must receive a PCI rating. If a worker does not receive a PCI rating, a worker would not be entitled to a PPD and life time pension meaning that all workers diagnosed with chronic pain would not receive a PCI rating, no PPD rating and no lifetime pension. PCI ratings are derived from the Alberta Guides and if the Alberta Guides are silent or deficient, then a physician in order to provide a PCI rating may use the AMA Guides latest edition. The Alberta Guides do not and and to this day never have provided a PCI rating for chronic pain which leaves only the AMA Guides that did not provide a PCI rating for chronic pain until 2007 when the AMA Guides 6th Edition were published. Questionably then if all workers must be assessed a PCI rating, what “Guides” did WCB use to assess a PCI rating prior to 2007.  Impairment ratings cannot fluctuate by any more than 10% which would mean that physicians had to have some sort of guidelines to ensure consistency. No one in WCB can answer this question as no one knows how they could have assessed a PCI rating without any “Guides” Further questioning is, “can foreign doctors who have no standings in Alberta or Canada determine on behalf of WCB what compensation workers in Alberta will receive. In my legal opinion, this would be illegal. No one at this time knows who provided the impairment ratings for the Alberta Guides and we know that American physicians provided impairment ratings for the AMA Guides meaning that foreign physician are in fact determining what benefits workers in Alberta would receive.

Worse yet because impairment ratings do not measure a workers ability to work, workers who were diagnosed with erectile dysfunctions, had difficulty reaching an orgasm, brushing their teeth, defecating, urinating prior to Jan 1, 1995 would receive up to a 15% PPD rating for the rest of their lives when WCB were illegally using impairment ratings as a direct method to determine a PPD rating and after Jan 1, 1995 would receive a 15% lump sum payment for a NELP as opposed to workers diagnosed with chronic pain who received nothing  but treatment  How then could Mason and Smallwood determine that workers diagnosed with chronic pain were being treated equally. Receiving no benefits other than treatment for chronic pain while other workers receive full benefits such as a loss of earnings, vocational rehabilitation and as well medical treatment would not be considered to be equal treatment.

Any one who claims that the administrative law system is far better than having claims heard in the courts has to have rocks in their head. Administrative law systems and adjudication by morons who have no training in medicine, no training in law, have no idea how to interpret legislation, regulations or WCB policy should not be adjudicating claims when no one has a clue what they are doing has no advantage over having claims heard in the courts under civil law. Administrative systems could work if we had a Justice Minister who was an expert in administrative law as it pertains to workers compensation, a minister in charge of WCB who knew the system inside out and a premier who also was an expert in administrative law as it pertains to workers compensation. Unfortunately this is not the case with all of the a fore named people having as much of a clue as the people adjudicating claims. If administrative law  was better why is it that claims that go back nearly 50 years are still being disputed and there are thousands of disputed claims with many workers simply giving up or committing suicide. The same crap that existed when the Conservative Government were in power is the same crap that will continue during the time the NDP Government is in power with very minor changes being made to a corrupt and badly managed system to the detriment of workers. Anything worth doing is worth doing right and if you cannot do it right, scrap the entire system, entitle workers to social services benefits and allow workers to sue the employer under the rules of civil procedure and not give workers the false sense of security that this is an inquiry based system and all they have to do is file a claim if they are injured and WCB will look after them. This is nothing more than a crock of shit and not realized by workers until they are injured, only to find they are on the outside looking in.

The whole system is convoluted and ambiguous with no one including the Office of the Ombudsman. I requested that the Office of the Ombudsman make this determination as to whether the system is an Inquiry system or an Adversarial system. The answer to this was that when a claim is filed, it is an Inquiry system and the burden of proof is on the “Board” It becomes an Adversarial system when a worker appeals the decision of the Case Manager  according to the Office of the Ombudsman. According to Justice Millar who presided over a Judicial Review which we won, the system is based on an Inquiry system and remains an Inquiry system throughout a claim. Question is, does any one really know how the system works. You would think that after over 100 years that the system would be a smooth running system rather than a system that no one can explain the purpose and philosophy of workers compensation and if it is even required being that the majority of workers wind up on Social Services or CPP Disability.

Jun 192018
 

By Gerald

On June 12, 2018, I filed for a Judicial Review on behalf of a worker who was illegally provided impairment ratings that were used as a direct method of rating disability and subsequent loss of earnings. WCB, DRDRB and the Appeals Commission were advised by the Alberta Court of Queens Bench and supported by the Alberta Court of Appeal in the Douglas Penny case (1993) that the WCA is specific to determining disability, not impairment and using impairment ratings as a direct method of rating  a disability without converting the impairment rating to a disability by considering a workers individual and unique characteristics, specifically age, education and prior work experience was not in compliance with the Alberta WCA. The Appeals Commission appeal this decision by the Alberta C of QB to the Alberta Court of Appeal and can be found on Canlii. It was upheld by both Alberta Courts that the WCA specified that workers were to receive compensation based on the degree of disability, not on the degree of impairment.

Specifically, you cannot use the words “impairment” and “disability” interchangeably as both have different meanings. An impairment is a medical term as opposed to a disability which is a legal term and explained by the Yukon Courts in a Judicial Review of the Yukon WCB using impairment ratings as a direct method of rating a disability. The Yukon Supreme Court agreed with the Alberta C of QB and the Alberta Court of Appeal that doing so is not in compliance with he WCA  As I shall explain in simple layman’s terms, Section 43(1) of the WCA states that the evaluation of a workers disability shall be made on behalf of the “Board” by one physician and one claims adjudicator employed by the “Board” This directs that a physician on behalf of the “Board” provide the impairment rating which is the first step. Using the impairment rating as a “guide or reference, the claims adjudicator then must convert the impairment rating to a disability rating by considering the type of injury that resulted in the impairment ratings and then convert the impairment rating to a disability rating. For example: If two workers received an impairment rating for an amputation of a lower extremity, (ankle) both would receive a whole person impairment rating of 25% by the physician on behalf of the “Board” The physicians job is finished and the next step is taken by the claims adjudicator who then applies the impairment rating to the individual. If the individual does not incur a loss of earnings (interpreted by WCB as a disability) because of the amputation of the ankle, the impairment rating becomes a moot point and that individual receives no disability rating or subsequent loss of earnings. On the other hand if an unskilled, poorly educated worker, performing heavy manual labor has their ankle amputated, this would result in having the impairment rating converted to a disability rating (loss of earnings) by the claims adjudicator to determine the Section 56(7) lifetime pension of the individual. There is nothing difficult in interpreting the responsibilities of WCB in providing compensation for a disability. WCB by statute (Section 69) do not have to provide any compensation for an impairment regardless of whether the injury occurred prior to Jan 1, 1995 or after Jan 1, 1995.

Questionably is why would WCB provide lifetime pensions to workers who had no disability, no loss of earnings but had difficulty attaining an erection, difficulty urinating, defecating, reaching an orgasm which is what impairment ratings are based on as impairment ratings exclude “work” as a reference in assessing an impairment. Impairment is strictly based on difficulties in performing simple basic activities of daily living. questioning further is why should employers pay into a sick system that provides life time pensions to workers who are not disabled, have no loss of earnings but have difficulty getting an erection, difficulty reaching an orgasm,defecating, urinating, brushing their teeth etc.

This was all determined by the Alberta Courts in 1993 and WCB, DRDRB and the Appeals Commission continued to use impairment ratings as a direct method of rating a disability despite the Alberta Courts decision that went against the Appeals Commission questioning why the former Justice Ministers selected by the Conservative Government did not direct that WCB, DRDRB and the Appeals Commission comply with the decision of the Alberta Courts and obey the law by using impairment ratings as starting point or a precursor in determining a disability by taking into consideration the age, education and prior work experience of the individual worker which is the only method that is supposed to be used in determining disability as impairment ratings do not measure an individuals ability to work as work is excluded in the evaluation of an impairment.

According to Section 3 of the WCA, the “Board” has the capacity and the rights, powers and privileges of a natural person, yet they are not held to the same legal standard as all natural persons who cannot break the law, criminally or  civilly and then claim they made a mistake. If any natural person makes a mistake criminally or civilly, they are held accountable, can be incarcerated or sued, yet WCB, MRP, DRDRB, and the Appeals Commission cannot be held accountable when they misinterpret a statute to protect the accident fund which has been the primary purpose of WCB, WCB BoD, the Government, DRDRB and the Appeals Commission. It is nearly impossible to prove that a claim was denied intentionally or with malice and when mistakes are made by adjudicators who are jokingly believed to be experts when in fact they have no expertise at all in medicine or law. Questionably are these people stupid, totally incompetent and may have made an honest mistake, then why are these people adjudicating claims if they have no idea what they are doing. Obviously, the buck stops at the top in the adjudication of claims and at the top of the heap is the Appeals Commission who should know precisely the enabling statutes, regulations and the purpose, philosophy and appropriate use of WCB policies which have to comply with the WCA. As well the Appeals commission also must adhere to legal precedence which they do not adhere to a witnessed by the fact that the Appeals Commission have never questioned WCB policy specific to chronic pain which is not in compliance with section 15 of the WCA. If not for the protection of the accident fund by Mason and Smallwood (Former Chief Commissioner of Alberta Human Rights and Smallwood who was the former Director of Alberta Human Rights) who despite objections from the Southern Regional Director, Alberta Human Rights Legal Counsel dismissed my complaint specific to the decision of the SCC in the Martin/Laseur case involving chronic pain. Question is; were Mason and Smallwood corrupt or were they simply ignorant.

An interesting survey was conducted in the U.S. that found that claims that were denied illegally costs almost double the claims that were accepted and f the claims that were illegally denied, over 67% of the denied claims were over turned by the various state courts. A same study done in Alberta would result in the same findings. Unfortunately, the Alberta Government have not enacted legislation that would force WCB to pay compound interest on long term claims that were illegally denied rather than WCB at present pay simple interest which in the real world does not happen. When claims are illegally denied, a worker should receive compound interest on the back pay and as well punitive damages of at least a half million dollars. In reality, Norrie, Carpenter and Cunliffe during their review of the “Act”, WCB policies, regulations etc., and who obviously knew very little about how the system operates only touched on very minor or inconsequential problems that face workers in what is a hostile environment after they are injured.

We have a Justice Minister and a Minister in charge of the WCB and yet neither one of these individuals ever review legal precedence by Alberta Courts or other provincial courts when the decision goes against the Appeals Commission or WCB who continue to circumnavigate the law by not complying with the decisions of the courts which include the SCC. Ambiguity and convoluted policies present decisions that question the mentality of the people who are involved in the process. For example: when adjudicating a claim, the legal standard in workers compensation systems is “balance of probabilities”which is the legal standard in the civil justice system, yet WCB goes beyond the legal standard by enacting policy that causation for occupational diseases and injuries must be based on a higher standard than in criminal law. WCB Policy 01-01 Part II Application 2 Question 4 that states per verbatim;  WCB requires scientific evidence of a causal link to the workplace before accepting responsibility for an occupational injury or disease. WCB Policy 02-01 Part II Application 7 Question 7 states per verbatim; “when an occupational exposure has been established, a relative risk of 2.0 or higher makes it more likely than not that the workers occupational exposure materially contributed to the workers risk of developing the disease” Scientific evidence WCB refers to is based on epidemiological evidence by comparing an occupational group to the general population and if the occupational group has twice the risk as the general population, then the claim may be accepted thereby creating a higher legal standard for occupational disease or injuries that are not in compliance with the SCC decision cited as British Columbia (WCAT) v. Fraser Health Authority where the SCC made it quite clear that causation is not to be based on a higher legal standard, (scientific proof) and must be adjudicated on common sense and logic which is supposed to be used in determining a balance of probabilities.  This questions why firefighters and first responders had to meet this higher standard of proof which in essence is discrimination under Alberta Human Rights Legislation and Section 15 of the Charter by having occupational diseases meet a higher standard than acute injuries. Clearly when there is no evidence either for or against in the workers compensation system, the benefit of doubt always goes to the worker but in Alberta, it never does.

With the findings and recommendations of Norrie et al, it is apparent that the system did not work and has not worked for decades, workers were being treated with contempt, disrespect and atrocities beyond any human comprehension. The problem is that the NDP by phasing in the effective recommendations and making the legislation effective on Dec. 15, 2017, Jan 1, 2018, June 1, 2018 and Sept. 1, 2018 should have grandfathered the legislation retroactively to include workers whose claims and benefits were illegally denied. Why would any Government when they know that workers have been abused by the system as was found by the previous Friedman and Doerkson investigations and now the Norrie et al investigation for decades prior to the new legislation exclude workers and their families from getting the benefits they were entitled to by ensuring that the administration of justice must be done or seen to be done. Obviously by not providing retroactive legislation, the Government is simply protecting the accident fund to ensure employer premiums would remain stable even if it was on the backs of workers whose injuries occurred prior to the new legislation.  This in effect indicates that the NDP could care less how workers were treated prior to the effective dates. This leaves those workers who claims occurred before the effective dates no other choice but to sue the Government and WCB for these atrocities that occurred prior to the effective dates.

The Judicial Review that I am going forward with would support any accusation and subsequent civil suit of misfeasance in public office along with other obvious acts by WCB, DRDRB and the Appeals Commission that can be factually proven such as illegally clawing CPP disability benefits from workers whose CPP disability benefits were provided for pre-existing non compensable injuries or clawing back all of the CPP disability benefits for work related injuries when the worker has paid 50% of the premiums. This money clawed back from CPP disability benefits subsequently goes into the accident fund to reduce premiums paid by employers which is not in compliance with the historic agreement. There is also the issue of not providing any benefits for chronic pain other than treatment as workers diagnosed with chronic pain do not receive vocational rehabilitation or any monetary reward if they do not receive a PCI rating for chronic pain which is not in compliance with the SCC decision in the Martin/Laseur case. There also remains the fact that it is illegal in the workers compensation system to put the burden of proof on a worker when the original intent of the Meredith Principles was to have an independent and neutral “board” who had exclusive jurisdiction to investigate  and gather the facts. Rather than WCB investigating and gathering the facts, workers are placed in the impossible situation of proving their claim which is the basis of the American system which is based on an adversarial system. Over the years with the assistance of Government, WCB has destroyed what started off as a good system whose main and only intent was to care for injured workers so they did not become a charge on family, friends and society. The main intent now is to protect the accident fund by deliberate acts of fraud and misfeasance by the Government, WCB, DRDRB, Appeals Commission, Alberta Human Rights Commission and the Office of the Ombudsman.

I will subsequently and in my own good time explain the issues of illegal CPP disability claw backs, chronic pain, illegally placing the burden of proof on workers, not giving the benefit of doubt to workers when this also was the intention of Meredith and which essentially separates the civil justice system from the workers compensation system. Basically, no matter how much lipstick you put on a pig, at the end of the day, the pig is still a pig.

Mar 042018
 

By Gerald

Ms. Gray, Notley and Ganley

Being that the SCC has determined that workers compensation boards must now apply human rights legislation specific to accommodating disabled workers, when can we expect that the WCA will be amended to include this change. At present there is nothing in the WCA that directs that the “Board” or the Appeals Commission must apply the the Alberta Human Rights Legislation. SCC decision; https://www.canlii.org/en/ca/scc/doc/2018/2018scc3/2018scc3.html?searchUrlHash=AAAAAQATZHV0eSB0byBhY2NvbW1vZGF0ZQAAAAAB&resultIndex=3

At present WCB Policy 04-05 Part I states; “there is no requirement under the WCA for employers to rehire injured workers. However, under human rights legislation, employers have a duty to accommodate workers with disabilities. Human rights legislation applies to workers compensation situations in the same way as other disabilities. The WCB does not adjudicate disagreements or complaints about failure to comply with human rights legislation. Concerns about discrimination or undue hardship must be filed with the Alberta Human Rights and Citizenship Commission.

Rather than disabled workers having to file human rights complaints against employers, do workers now assume that the Government will comply with the SCC decision and will enact legislation giving jurisdiction to WCB and the Appeals Commission to direct that employers comply with the Alberta Human Rights Act to accommodate disabled workers rather than forcing workers to file human rights complaints against employers when employers do not offer modified work. At present before a human rights complaint can be filed, the claim must go through the Appeals Commission to be finalized before they will get involved. Obviously, AHRC are aware that there is a statute of limitations on complaints (1 year) and if a complaint is not filed within this period, the complaint will be dismissed. Through legislation or the absence of legislation, AHRC cannot extend the statute of limitations as can the Appeals Commission and the DRDRB under the WCA. By the time a claim goes through the Case Manager, DRDRB and the Appeals Commission, the statute of limitation would be breached.

This also affects WCB’s modified work program which is presently a voluntary program between a worker and the employer. Modified work is thus no longer voluntary, it becomes mandatory with WCB and the Appeals Commission having to enforce the accommodation of all disabled workers. Many things would change as by forcing employers to accommodate disabled workers, no longer will workers be deemed into performing imaginary work for imaginary earnings,  as the earnings they receive will be actual earnings.

Being that the former Conservative Government did not enact legislation or regulations after the decision of the SCC by directing that chronic pain be recognized which WCB is still not in compliance and the Alberta Government has never enacted legislation or regulations, are we to expect that the NDP Government will do the same as the former Conservative Government by ignoring the SCC and allow WCB and the Appeals Commission to carry on abusing workers, treating them with unfairness, disrespect and indifference. Besides, not complying with the SCC that all workers compensation boards must recognize pain, the Government after the Alberta Court of Appeal determined that impairment ratings cannot be used as a direct method of rating disabilities, the Government never did direct WCB to stop using impairment ratings as a direct method of rating disabilities which when doing so resulted in providing pensions to some workers who did not have an earning loss and inadequate pensions to workers who had a significant earning loss. What is the point of having laws if WCB are immune from these laws and is the government culpable if they are aware that a government arms length agency is breaking the law. The Government knows or has known for 25 years that impairment ratings cannot be used as a direct method of rating a disability and as well as knowing for 15 years that the Alberta WCB does not recognize chronic pain when providing compensation as they only provide medical treatment for chronic pain but do not provide compensation for any vocational rehabilitation, earning loss or permanent impairment ratings. This can be verified by reading the Alberta Appeals Commission Decisions on Canlii. It would be fair to conclude that knowing this and not doing anything would suggest that the Government is complicit and in collusion with WCB and the Appeals Commission to cheat employers and workers.

Mar 042018
 

By Gerald

Click on the following link: http://www.postcrescent.com/story/news/investigations/2018/01/22/dueling-doctors-muddle-compensation-claims/1041800001/

Based upon my own research and reading articles like this, it is apparent that the workers compensation system is broken in all States and Provinces. Being that the system in Alberta is beyond repair perhaps it is about time that the Government appoint another Review Panel that is far more knowledgeable of how the system works rather than appoint former bureaucrats that know very little about how the system works and how to fix it. To suggest that the system in Alberta is not corrupt indicates the total ignorance of people like Gray, Ganley and Notley when it can be proven that WCB Legal Services have lied to the courts, lied to the Human Rights Commission. I shall commence in my next e-mail to explain how WCB has deliberately defrauded workers by citing WCAT decisions and Court decisions supporting me.

Mar 042018
 

By Gerald

On Nov. 8 and 9th of 2016 we attended an in person hearing adjudicated by R. Fong who was the Hearing Chair, D. Jossa and J. McKenna who were Commissioners. On July 6, 2017, they presented a partial decision but as of this time ( 15 months later) we are still waiting for a full decision. Oddly enough, workers compensation according to the Supreme court of Canada, one of the fundamental principles of workers compensation is that compensation is paid to injured workers quickly, yet one of the claims goes back to 1973 and the other one to 1988. Also it is odd that the WCA provides statute of limitations for doctors, workers and employers but there is no statute of limitations on decisions made by a Case Manager, DRDRB or the Appeals Commission. A worker or employer could wait for decades to receive a decision from a Case Manager, DRDRB and the Appeals Commission which questions the SCC as to their belief that compensation is paid quickly.

In the claim at hand, the problem the Appeals Commission are having is attempting to explain why WCB and themselves were equating directly an impairment rating to a disability rating or loss of earnings without incriminating WCB, DRDRB and themselves. WCB, DRDRB and the Appeals Commission have known for decades that impairment ratings do not directly equate to a disability or loss of earnings, yet this was what all three of these bodies were doing despite the Alberta Court of Appeals decision (the Penny decision) that the WCA is specific to determining a disability or loss of earnings, not an impairment. This is explained at the beginning of the WCA Section 1(1)(u) which states in part; “pension” means a periodic payment to a worker in respect of whom a permanent disability has been assessed”It does not state that a pension means a periodic payment to a worker in respect of whom a permanent clinical impairment has been assessed. This was not a mistake, rather it is criminal fraud and a Calgary City Police Commercial Crimes Unit made this decision. The Crown refused to lay charges more than likely at the direction of the Justice Minister who was of the opinion that this would most likely destroy the Alberta WCB if criminal charges were laid.

For convenience of understanding, I have attached in part a page from the AMA Guides to better understand the reference that is used in determining impairment. I attended a recent IME performed by Dr. Rocheleau (Physiatrist) on behalf of WCB. He was dumbfounded that a PCI rating for erectile dysfunction could result in up to a 15% PCI rating which WCB illegally equates to a disability rating and doing this results in a life time pension in the hundreds of thousands of dollars to workers despite a worker not having any loss of earnings. This is what would be like winning the lottery.

When referencing Table 1-2 only a moron would provide a life time pension to a worker who has no loss of earnings but has difficulty getting an erection, orgasm, ejaculation, lubrication, combing their hair, urinating, defecating to name a few difficulties in Table 1-2 which has got nothing to do with work or loss of earnings.

Not wanting to admit they had made a mistake and have to re-adjudicate thousands of claims, WCB, DRDRB and the Appeals Commission in collusion with the WCB Board of Directors decided to continue defrauding workers and employers and went to a dual awards system separating impairment with disability. Rather than use Section 56 of the WCA as they did prior to Jan 1, 1995 by illegally using impairment ratings and equating the impairment ratings to disability ratings, they  separated impairment ratings and disability ratings with impairment ratings now coming under Section 69 of the WCA.

I have no idea when the Appeals Commission will address this issue of if they will continue to insist that an impairment, disability and loss of earnings can be used interchangeably despite the Alberta Court of Appeals decision that using impairment ratings a s a direct method of rating disability is not in compliance with the WCA and we will then have to take this to a Judicial Review based on an error in law. Obviously on Judicial Review, the Court of Queens Bench have no jurisdiction to over ride the decision of the Alberta Court of Appeals in the Penny case and any decision by the C of QB will be in our favor. Unfortunately,  I cannot represent the worker due to the Legal Professions Act and the worker who has a grade 8 education will have to represent himself.

If the the Government provided workers though the proposed Fair Practices Office the right to represent workers, workers would not be forced to represent themselves and especially when most injured or disabled workers are blue collar workers who have no idea how to represent themselves before the courts or have any idea what the issues are and how these issues fit into the WCA, WCB policies and workers compensation regulations.

Section 69 of the WCA which is specific to impairment makes the award discretionary. Who gave WCB the right to change the historic agreement which was based on compensation for loss of earnings, not for impairments. Are employers aware that they are paying out millions of dollars to workers who do not have any loss of earnings but have difficulty getting erections, urinating, defecating, reaching an orgasm, combing their hair, brushing their teeth. I may get myself into trouble by suggesting that any award for an impairment should be stopped and employers be reimbursed unless they agreed to WCB providing millions of dollars in life time pension and lump sum payments for an impairment.

Upon review of WCB policy, there is nothing in policy that suggests that impairment ratings can or should be used s a direct method of rating a disability. At first I believed that the problem evolved from the WCB BoD who according to the WCA enact policies but further review resulted in the fact that WCB policy specific to the use of impairment ratings indicated that impairment ratings were to be used as a starting point as suggested by Mr. Carr, WCB legal counsel in the Penny case and agreed to by the Alberta Court of Appeal in assessing a disability. The AMA Guides stress this as being a very crucial point by stating that impairment ratings are a pre-cursor to a disability, not a final assessment of a disability. This is explained under WCB Policy 04-04 Part II Application 5 Question 1 which states in part and read correctly specifies that the first step is to assess an impairment and the second step is to assume whether there is an earning loss. If there is no assumed earning loss a worker receives nothing other than medical care if necessary. If there is an assumed loss of earnings, the assumed loss of earnings is based on each individuals unique circumstances which considers their age, education and prior work experience. The determination of a disability is usually determined by a certified member of the Fellow of the American Academy of Disability Evaluating Physicians who are trained experts in determining disability.

Policies & Information

Copyright 2017


All rights reserved

1. What is a Permanent Disability Award, and who is eligible for it?

        A permanent disability award is a pension which includes

        compensation for permanent clinical impairment “and”

        assumed permanent loss of earning capacity resulting from

        the clinical impairment.

        The pension is based on a medical determination of the

        extent of the compensable clinical impairment. WCB uses

        the WCB-approved rating schedule (see Appendix D) as a

        guide to determine the extent to which the compensable

        clinical impairment impairs or may impair earning capacity,

        and expresses that impairment as a percentage of disability.

WCB policy 04-04 Part II Application 2 Question 6 states in part;

6. How does WCB calculate the Non-Economic Loss Payment?

        As the Non-Economic Loss Payment is not intended to

        compensate the worker for lost earnings, the payment base

        is the same for all workers, regardless of earnings. The

        payment is paid as a lump sum, and is based on the degree

        of permanent clinical impairment resulting from the

        compensable injury.

Any one with any intelligence would ask, how could a PCI rating equate to a disability and loss of earnings one second before midnight of Dec. 31, 1994 and then one second after midnight on Jan 1, 1995, a PCI rating equates to NELP which is not intended to compensate the worker for loss earnings. Little wonder no one understands the “Act”, WCB policy and WCB regulations when WCB themselves have no idea of how to interpret their own policies.

Using impairment ratings as a direct method of rating disability results in further complications to the WCA specifically Section 42 of the WCA which presumes total disability with the loss of both feet at or above the ankle. Using logic, if A is equal to B, then B has to be equal to A. Using impairment and disability in place of A and B, if impairment is equal to disability, then disability must be equal to impairment. That being the case,, if a worker is totally disabled, then they have a total impairment.If you have a total impairment, then you are dead as death occurs when all bodily functions cease. A worker with a loss of both feet at or above the ankle is obviously not dead, so it is obvious that they are not totally disabled. Loss of both feet at or above the ankle is assessed 25% PCI rating for each lower extremity equaling a 50% PCI rating. When multiplied by 90% of net, a worker would receive a 50% permanent partial disability and yet according to the section 42 of the WCA the worker is totally disabled which means the worker has a 100% PPD, not a 50% PPD.

This is precisely what happened in the Yukon when the worker (Robbie King) suffered an injury to the head and was determined by WCB as being totally disabled and instead of paying compensation for permanent total disability, the “Board” paid him 70% PPD based on a 70% PCI. The Yukon SCC overturned the decision of the “Board” to pay him a 70% PPD and directed they pay him a total disability rather than a 70% disability pension.

With all of this evidence supporting the fact that a PCI rating does not equate to a disability rating, then why is the Government not directing that WCB comply with the WCA and legal precedence? It also would be fair to question why WCB Medical Services and WCB Legal Services are complicit in defrauding workers who clearly know that you cannot equate an impairment to a disability. WCB medical Services should have all their doctors licenses terminated and as well, WCB Legal Services should have all their lawyers licenses terminated.

There is no other body or individual that are allowed to make a mistake. If any body or individual makes a mistake, we are told that ignorance of the law is not a defense, yet WCB. DRDRB ad the Appeals Commission are allowed by the Government to make a mistake and not be held accountable. If I or any one else, gets drunk and kill or injure some one, we are not allowed to plead that we made a mistake. When workers are given the benefit of doubt in all cases, it is impossible to make a mistake as a person always errors on the side of the individual who is given the benefit of doubt.

Case Managers, DRDRB and the Appeals Commission are supposed to be experts according to the Courts. Experts don’t make mistakes and if a person who is supposed to be an expert makes a mistake, they clearly are not experts. In order to adjudicate a claim, a Case manger has to be an expert in law and medicine, the same for the DRDRB and the Appeals Commission.There are no Case Managers, DRDRB or Appeals Commissioners who are experts in law and medicine and it is far too easy for these people to deny a claim or benefits knowing that workers do not have the knowledge and financial capability to hire a person who is knowledgeable in law and medicine.  In the Penny case, the Alberta Court of Appeals stated” Presumably the Appeals Commission have expertise in medicine, because most of the questions before it have a large medical component, and in other fields related to the assessment and valuation of claims” 

The problem with the whole system is that no one including WCB, DRDRB or the Appeals Commission have any expertise in medicine and as well as law, the largest component in all claims involves the field of medicine. Because Case Managers, DRDRB  and the Appeals Commission have no expertise in medicine, they in turn consult Medical Advisors who are not experts in medicine with many of them not even practicing medicine for decades and still provide medical opinions that date back to their early days of medicine and have since been corrected in medical journals which these doctors have never read.

The courts are not presided over by mechanics, painters, plumbers, brick layers so why would lay people with no expertise in law or medicine be allowed to preside over claims within the workers compensation system.  None of this makes any sense at all but the Government continues to place band aids on fixing a system that is terminally ill.

The correct way of fixing the system is to consult with employers and workers and renegotiate a sick system and get back to the original system where workers receive medical care and lifetime earning loss pensions if necessary. If permanently disabled workers cannot return to their former job, train them to perform some meaningful job not simply provide assistance in how to write a resume, make phone calls etc. which is not cost effective at all as being able to write a resume or use proper telephone techniques will not result in a disabled worker getting a job over some one who is not disabled, has the experience and employers could care less whether some one can write up a better resume than another person. Studies in Ontario confirms that their approach in this manner was a waste of time and money.

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.