Jan 192017
 

By Gerald

An interesting e-mail crossed my desk from a worker that shows how convoluted the system is. According to the worker pain and suffering does not come under the WCA and stated that WCB Legal Services admitted during Judicial Revue that pain and suffering does not fall under the WCA. This is not true and WCB Legal Services should not be suggesting that pain and suffering are not covered under the WCA. When assessing impairment and using impairment ratings does factor in pain and suffering when assessing impairments. Providing compensation for an impairment is subject to the discretion of the WCB BoD under Section 69 of the WCA.

Prior to Jan 1, 1965 all workers received a lifetime pension for an impairment by multiplying an impairment rating by net earnings which factors in pain and suffering. After Jan 1, 1995, workers received a lump sum payment when assessed an impairment by multiplying an impairment rating by MIE. Curiously and thinking that all people are stupid, prior to the stroke of midnight an impairment rating was defined and used to determine an economic loss and after the stroke of midnight an impairment rating become a non economic loss. How can a word have two interpretations. Obviously, there is no correlation between an impairment and a disability and impairments are supposed to be used as a starting point or precursor in determining a disability so why then would WCB use impairment ratings as a direct method of rating a disability This sounds more like a fairy tale (Cinderella)  when mice turned into horses and at the stroke of midnight the horses turned into mice. Policy 03-01 Application 7 also includes chronic pain ( non discernible chronic pain) in assessing compensation but only provides medical aid but no loss of earnings, vocational rehab. or a PCI rating. Policy 03-01 Application 7 also provides compensation for non discernible chronic pain syndrome but does not assess any PCI rating for chronic pain syndrome. The SCC Martin/Laseur) also determined that chronic pain be recognized and compensation be paid although WCB has not and is not in compliance with the SCC decision and continue to not provide an impairment rating for chronic pain in itself without any objective findings which is illegal and contrary to the decision of the SCC. At one time pain was believed to be subjective and associated with malingering but over the last ten years with improved brain imaging a patient complaining of pain without objective findings could have brain imaging to determine if pain was evident. Of course even if brain imaging did indicate pain response many patients continue to have pain even after an injury heals. An example would be phantom pain in the case of an amputated limb. Of course the Government in Alberta turns a blind eye to everything WCB does or does not do as no one wants to disturb or annoy the sacred cow that was created by Government without any checks and balances.

Jun 192012
 

 

Click on the following link: Re-thinking Workers’ Compensation-The Human Rights Perspective

Re-thinking Workers’ Compensation-The Human Rights Perspective, the June 2012 special open-access issue of the American Journal of Industrial Medicine, is now available online. These articles emerged from background papers prepared for the national meeting, “Rethinking Workers’ Compensation: Developing Strategies to Protect Injured/Ill Workers’ Basic Human Rights” convened by NESRI in 2010. Authors include Emily Spieler, John Burton, Jeffrey Hilgert, Katherine Lippel, Rebecca Smith and Martha McCluskey.

In the journal commentary, guest editor Les Boden writes, “The articles in this special issue propose an alternate framework and analysis, a human rights approach that values the dignity and economic security of injured workers and their families.” Mainstream debates around workers’ compensation are very technical, market-driven and cost oriented. The focus is rarely on meeting the needs of injured/ ill workers. This discourse ignores the plight of the injured/ill workers and their grave suffering as they navigate workers’ compensation systems that often function poorly on multiple levels. A human rights framework mandates that those most directly and negatively impacted by a system, in this case injured/ill workers, be at the center of any discussion concerning system reform. Contributors to the AJIM special issue accordingly highlight the many failures of workers’ compensation and explore pro-worker strategies, solutions and alternatives that are grounded in the experiences of injured/ill workers and designed to advance their rights. For a brief overview of the journal articles, click here. To access the articles directly, click here.

Many of you who receive my e-mails may recognize the name of Dr. Emily Spieler who I have had the privilege of corresponding with and being supported by her during my 7 year fight with the American Medical Association and the Alberta WCB. With her assistance and the co-operation of Dr. Brigham (Editing Chair of the AMA Guides 6th Edition), the AMA Guides were changed to reflect my criticism of the previous “Guides” prior to the release of the AMA Guides 6th Edition which changed significantly from the 5th to the 6th Edition. Many of you also know that the Alberta WCB were forced to admit that they were wrong as to their understanding of how to assess impairment when using the AMA Guides and rather than assess an impairment rating using the AMA Guides as directed by Dr. Talmage (AMA Medical Consultant) reverted to the use of the Alberta Guides which were the old meat charts used by all workers compensation systems in Canada who have abandoned the use of those antiquated earlier guides put together by Dr. Bell in 1960 which are still being used by the Alberta WCB. The Alberta Guides do not recognize chronic pain in any of their impairment ratings whereas the AMA Guides do. Legally, based on the Martin decision, the Alberta WCB is not in compliance with the Supreme court’s decision to recognize chronic pain as being a compensable condition. The Alberta WCB recognizes chronic pain only if it results in an earning loss but does not assess an impairment rating for a discernible diagnosed medical condition. The Alberta WCB must provide an impairment rating for chronic pain just as the Nova Scotia WCB had to and noticeably also is that the BC workers compensation board amongst others provide an impairment rating for chronic pain. A chronic pain rating must also be assessed for conventional impairment ratings and must be added to or combined with other assessed impairment ratings. Not doing this is a human rights violation or a violation of Section 15.1 of the Charter.

Dr. Spieler and her colleagues continue to be a thorn in the sides of workers compensation systems and as well as the Government’s involvement in creating legislation that strips workers of their rights and loss of dignity after suffering a work related injury. The system was and is not meant to be adversarial and was the reason why the system went to an administrative system instead of having claims heard before the courts. As it stands now, the system as it stands now was better 100 years ago then what it is today because of legislation brought in by Governments over the years to protect the “Boards” at the detriment of workers.

I would suggest that you click on all the links within the article to read the full versions of the studies and comments of the authors of the studies.

 

Gerry Miller