Jun 142020
 

WHY we advertise other provinces’ media write-ups  in support of Injured Workers . 

In Alberta information is not reported on the plight of Alberta injured workers through the media . If Alberta Injured Workers are lucky a story may be printed once or twice a year. Other provinces throughout Canada steadily have the support of the media which in turn garners the support of the public to outcry for justice. Although injured workers in Alberta suffer the same ongoing problems and maybe worse than  other provinces, the public and Government is not informed . 

Injured workers of Alberta need public and government  support when the WCB Alberta and the Appeals Commission working for the WCB Alberta refuse to comply with the Workers Compensation Act, The Alberta Court of Appeal, the Supreme Court of Canada or Human Rights. 

Out of sight of public scrutiny can allow those in power to abuse their power and ignore the laws and policies that are put in place to protect the disabled from work injuries that left them without any earnings , medical treatment and personal care. 

Like this lucky fellow below, many injured workers in Alberta have had their claim accepted and meet all laws in Alberta and Canada but WCB Alberta and the AC  still refuse to comply . The AC and WCB have made decisions against Alberta Injured Workers knowing they never had jurisdiction to overrule law. Injured Worker ‘s  in Alberta cannot get justice without any public scrutiny Alberta Injured workers are ignored  and cannot advocate alone.

Injured worker gets back pay, apology after WCB ignores ruling

ONTARIO VS. ALBERTA

ONTARIO

Tribunal adjudicators perform judicial functions. They must interpret legislation, weigh evidence and make legal and factual findings just as judges do. These tribunals are therefore properly understood to be judicial tribunals and the process for appointing and re-appointing adjudicators to judicial tribunals must be as principled as the process for appointing judges. At a minimum, decisions about re-appointments must be transparent and demonstrably free from any political interference. The process for selecting new appointees must be merit-based and competitive as required by the Adjudicative Tribunals Accountability, Governance and Appointments Act (“the Tribunals Act”).

The system the government inherited

The previous government established a modern tribunal appointment and reappointment system as set out in the Tribunals Act and the Directive on Appointments and Re-appointments. The key features of the system were as follows:

A commitment to a competitive, merit-based process for appointments to tribunals

Qualified candidates were subject to a rigorous application process conducted by thetribunal (e.g. published selection criteria, interviews, writing a sample decision).

The Chair provided the government with a list of the most qualified candidates.Appointments were made only from that list.

With very few exceptions, appointments were for fixed terms, starting with an initial two-year appointment, followed by a three-year re-appointment, and a final five-yearappointment.

The Chair was solely responsible for making re-appointment recommendations. Theserecommendations were routinely accepted by the government. While not perfect, this system had many advantages:

The Tribunal Chair, who is in the best position to know the tribunal’s needs, retained control over who would be appointed and re-appointed.

People could look to tribunal adjudication as a profession with a reasonable expectation of at least 10 years of work subject to good performance. This made the position attractive to mid-career professionals with expertise in the subject matter of the tribunal and often adjudicative experience. Adjudicators were eligible for appointment to a new tribunal at the conclusion of a term, preserving the adjudicative experience for the overall system.

The potential for partisan appointments was significantly reduced.

Tribunals could plan on the basis of having a stable group of meritorious and experienced adjudicators.

What the present government has done

The present government has largely abandoned the system it inherited.

Instead:

Appointment recommendations from Chairs are frequently not accepted. Chairs have been pressured to consider alternate candidates proposed by the government.

Recommendations from Chairs about the re-appointment of existing adjudicators are routinely rejected, with no explanation provided. This is the principle cause of the existing severe shortage of adjudicators.

When re-appointments are made, they are for irregular and unpredictable terms. The length of terms has varied considerably even in the same tribunal, with no explanation for the different terms. Many new appointments have also been for irregular terms.

Most re-appointments have been for short terms, sometimes as short as 6 months. Even Chairs and Associate Chairs have been re-appointed for short terms.

Discussion

Even before the COVID-19 emergency, the circumstances of Ontario’s tribunals were already dire. The tribunals of most relevance to disadvantaged individuals were, in particular, seriously weakened. Experienced adjudicators were let go, large numbers of vacant adjudicator positions were left unfilled, and key tribunal leadership positions were either left vacant or filled with people with responsibilities for too many tribunals. The lack of any predictability about re- appointments, combined with a general demoralization about the deterioration of the sector, has necessarily caused large numbers of adjudicators to leave for less precarious employment, adding to the shortage. The precarious nature of an appointment also makes it difficult for tribunals to attract experienced, professional candidates.

Now, in the midst of a pandemic, the folly of this situation is even more evident. The numbers of the vulnerable have greatly increased, as has their need to be able to claim the protections offered by our laws. Now more than ever tribunals need a full complement of highly qualified adjudicators. Now more than ever they need leaders with the necessary subject matter and adjudicative expertise to effectively deploy resources and adjust processes to ensure procedural protections and deliver high quality outcomes. Now more than ever Tribunals Ontario needs to be led by someone with recognized expertise in tribunal leadership, someone who will be widely recognized as an impartial, non-partisan and independent guarantor of the integrity of this vital part of our administrative justice system.

The tribunals in Tribunals Ontario will play a critical role as we move forward. They will have to change how disputes are resolved and make important decisions about rights and obligations in the continually changing context of the pandemic. To do this, they need to be fully functioning. The mismanagement of Tribunals Ontario over the last two years, leading to a severe reduction in adjudicative capacity and competence, rising backlogs, demoralization of those who are left, and a leadership vacuum, means that these tribunals are nowhere near being able to function fully.

There are three things that need to be done as quickly as possible to rectify this situation.

3

  1. Fill the leadership positions through a credible, competitive and transparent process: The position of Executive Chair of Tribunals Ontario is a critical position and must be filled quickly. However, if the process is not credible, competitive and transparent, the integrity of Tribunals Ontario will be compromised. Parties, the public, and the tribunal adjudicators will lose faith in the ability of tribunals to deliver justice. Appendix B provides a detailed discussion of this issue.
  2. Restore the integrity of the appointment and re-appointment process: Tribunals need to have adequate numbers of experienced, competent adjudicators. The ongoing refusal to re-appoint adjudicators on the recommendation of the tribunal Chair or Associate Chair must stop. New adjudicators must be appointed as quickly as possible and the appointment process must at a minimum be consistent with section 14(1) of the Tribunals Act which states:

14 (1) The selection process for the appointment of members to an adjudicative tribunal shall be a competitive, merit-based process and the criteria to be applied in assessing candidates shall include the following:

1. Experience, knowledge or training in the subject matter and legal issues dealt with by the tribunal.

2. Aptitude for impartial adjudication.

3. Aptitude for applying alternative adjudicative practices and procedures that may be set out in the tribunal’s rules.

3. Appointments and re-appointments must be for fixed terms

The current approach of inconsistent and mostly short terms for appointments and re- appointments will result in a serious erosion of the principle of adjudicative independence, a cornerstone of our justice system.

Those who appear before adjudicative tribunals must have confidence that the adjudicator in front of them has the necessary independence to make decisions on the basis of the law and the evidence, free from any concern that the adjudicator’s continued employment is conditional on the government’s approving the adjudicators decisions. This becomes especially obvious for tribunals where the government is a party.

Articles About WCB, Appeals Commission, and Injured Workers :

Response to the WCB Review: To read the Canadian Injured Workers Association of Alberta Response to the Final Report of the Alberta Workers Compensation Board Review Panel, click here

PLATFORM FOR CHANGE (2004)
As amended by the Thunder Bay & District Injured Workers’ Support Group

Return to Work and Ripple Effects on Family of Precariously Employed
Injured Workers

Workers’ Compensation System a ‘National Disgrace’: United Steelworkers

Spotlight on WCB policies and opioids

Meredith Principles

A. Sim’s Recommendations – Progress Update

Sims Report

WCB Appeal System Legislative Review

Member of the Legislative Assembly Workers’ Compensation Board Service Review Input Committee Final Report – October 2000

WCB Review – Working Together Progress Report

May 202020
 

As we continue to adjust to our ongoing office closure, Injured Workers Community Legal Clinic will begin having online town hall/education events about pressing issues related to Workers Compensation. 

We will kick things off next Wednesday, May 27th at 3pm, with a session titled:

COVID-19 Crisis – Is WSIB there for the injured?
Presented by IWC staff, along with injured workers and allies. 
Coronavirus has created all kinds of new expenses for Injured Workers, but the WSIB isn’t paying for increased grocery costs, safer travel expenses, or PPE. Join us for a town hall-style event to discuss WSIB’s response to the COVID-19 crisis, and what you can do about it.

Interested participants are encouraged to register for the Town Hall here: https://www.crowdcast.io/e/iwc-covid

Joining through CrowdCast will allow people to interact with each other and ask the presenters questions. 

If people are not keen to sign up formally, it will also be streamed on YouTube at:  https://youtu.be/-zw0iqOmXsc

Posters are attached. Thanks! 

Apr 122020
 

By Alvin Finkel

If you have an injury at work but it’s fixable and you can return to work in a relatively short time, the workers’ compensation program will likely work out OK for you.

If your injury is long-term and particularly life-long and a return to work is simply impossible, the Workers’ Compensation Board is set up to eat you alive. If your doctors rule that you have chronic, crippling pain that makes performance of even simple tasks an extreme challenge, the case managers at the WCB who get bonuses for limiting costs to the WCB will claim that they are wrong and that your pain is localized and there are jobs that you can do. They generally have no medical background at all and yet feel competent to ignore what your physicians tell them as simply “biased” because of their “sympathy” for you.

A Supreme Court decision in 2003 ruled that Nova Scotia’s Board had erred in ruling that chronic pain was not a real diagnosis and ordered back pay to all applicants for workers’ compensation who had been denied ongoing aid because of the Board rejecting a diagnosis of chronic pain.

Someone whose case with whom I am very familiar had a work injury ten years ago that has left her in such terrible pain that almost every day it is a struggle to just get out of bed. Her generalized pain has cost her her teeth, her mobility, her ability to sleep properly, and much more. She has been very active in the injured workers’ movement and in her view that has caused the WCB to be particularly vindictive in their treatment of her.

She had four neurologists confirm to the WCB that she is unable to work and has had an unprecedented four medical panels confirm that diagnosis. I’ve read the diagnoses and they are unmistakeable. Somehow though the case managers have just ignored all of that and claimed that she could be working as a parking lot attendant (a job category that doesn’t really exist and, in any case, requires someone who can sit for long periods and who can, when necessary, move heavy objects, criteria that would easily exclude this individual). Over the past 10 years the Board has been on again, off again, about paying her for lost income or paying medical bills, mostly off again.

She wrote me today that she is losing “my nursing care, home care, medication, dental hospital and ambulance service.” That will cost her so much that she “won’t be able to pay housing, forget groceries.”

The WCB is not reformable. WCBs have been captured by the employers who pay into the fund and want to keep their payments small. While many employers are aghast at how their own injured workers have been treated by the Board, they collectively have an interest in maintaining an anti-worker status quo.

It’s not usual to read on Change Alberta that we want a government agency to be shut down (other than the “war room”). We oppose austerity. But this is not about austerity. It’s about social justice, something virtually all WCBs care nothing about.

So what should replace the WCB? I would advocate critical care insurance, which would be incorporated into medicare rather than being part of an employer-dominated agency. It would extend the ambit of insurance for critical injuries beyond the workplace–the individual in question had her life altered by tripping over a misplaced carpet, something that could happen to you in your own home or in a mall. The payouts could be the same as what WCB now pays but eligibility, including how long someone might collect, would be totally in the hands of physicians. The insurance, like all medicare-covered services, would be financed from general revenues. That would remove the unpleasant reality that a WCB has to serve two masters at once: injured workers and dues-paying employers.

Get the WCB clerks out of the picture and put all power in the hands of medical people. The conviction among WCB employees that long-term injured people are just fakers is a rationalization based on no medical evidence. Let’s not have lives put in the hands of people who have prejudices but limited or no medical training. This is really something that needs to be determined by physicians.

Feb 062020
 

Bruce Junker

More: https://www.facebook.com/story.php?story_fbid=3458362990846570&id=100000187088955

Each Year Workers Compensation Corporation “TARGETS” the most Severely Injured Workers for Claim Termination, recent internet websites have identified $Bonus Structure$ comp employees are rewarded with for “Closing Claim Files” – This couldn’t be more serious for severely injured in “Severe Pain” – Physicians prescribe “Handfuls” of Pills” treating symptoms, while “WCB repetitively Denies” physicians requests for specialist appointment + MRI…… to find and treat the source of the pain.

How Dangerous are these medications? https://www.healthline.com/…/how-pain-killers-could-be-hurt… – New research backs up previous studies that showed the potential side effects of painkillers. It also concludes risks start within weeks of taking the drugs.

What makes opioid medications effective for treating pain can also make them dangerous. At lower doses, opioids may make you feel sleepy, but higher doses can slow your breathing and heart rate, which can lead to death.

Instead of diagnostic testing, WCB sends severely injured for “Assessment $2000 (Doctor, Physiotherapist, Chiropractor , Psychologist) WCB “”Modus Operandi”” – (Send Falsified Medical Information to the Assessment Team) to prevent “ANY” medical investigation) if the assessment team makes recommendations, WCB rewrites “Assessment Report” deleting recommendations to protect or help the injured worker. In other cases, WCB writes to “Neurosurgeon” with “Blatant Falsified Information” to have the Neurosurgeon drop any recommendations.

Severely Injured Workers couldn’t be in a worse situation. As WCB begins their “TORTURE” program, “everything possible is used to inflict extreme +10 PAIN. “New Injury” in hopes the injured worker will not attend physiotherapy. (Physicians report of New Injury in Physiotherapy “DENIED” claim acceptance, or medical investigation.) “The “Non-compliant Injured Worker” is then “Terminated” from WCB benefits, and then further attacked, with an “Overpayment”. Over the years WCB has deliberately used this “Overpayment” to destroy injured workers “Credit” – and make injured workers “Give Up” go back to work still injured without diagnosis, treatment.

Last year, Heavily medicated injured “Truck Driver” fell asleep at the wheel on the highway, after being refused medical investigation / treatment of workplace injury, by “Non-medical WCB employee”. Luckily, the semi-truck went into the ditch, came back across the highway, into the other ditch, and back up onto the road, without anyone getting injured or killed.

“Good Luck” winning a Workers Compensation Appeal for denial of requested medical treatment as WCB employees “Deliberately Falsify” appeal information.

Sep 282019
 

By Gerald

Over the course of my 30 years involving workers compensation specific to the “Act”, WCB Policies, WCB Regulations, Federal Human Rights Commission, Provincial  Human Rights Commission Services Canada (CPP disability), Civil litigation, Family Law, Criminal Law, Charter, Judicial Reviews, one of the biggest problems within the workers compensation system is translation of the WCA and WCB Policies.

Most work related injuries involve pain. Most workers recover from their injuries and pain is no longer a factor, however for many workers pain does not go away and becomes chronic without any discernible organic reason. Non discernible chronic pain is compensable which is confusing for Case Managers, DRDRB and the Appeals Commission who are not doctors or lawyers specializing in workers compensation and are thus totally unaware that the Supreme Court of Canada determined that chronic pain must be recognized and compensation be provided as it is for any other physical or mental injury.

WCB Policy 03-01 Part II Application 7 is a two part policy specific to chronic pain and chronic pain syndrome which at first blush seems to provide only medical treatment for chronic pain which is obviously illegal but provides compensation for chronic pain syndrome which would then include compensation (medical treatment, loss of earnings and vocational rehabilitation). Many workers are under the false impression that if they want full compensation, they must be diagnosed with chronic pain syndrome to receive full compensation which is not true as chronic pain in itself is totally compensable and supported by the SCC specific to the Martin/Laseur case based on Section 15.1 of the Charter. In Alberta discrimination is under the jurisdiction of the Alberta Human Rights Commission and a complaint can be filed against WCB under the protected category of “disability” and the area of discrimination would be “services”

According to decisions made by the Appeals Commission when translating Policy 03-01 Part II Application 7, the Appeals Commission most likely because of inexperience and ignorance which is a common trait have not considered that the SCC has determined that chronic pain is “totally” compensable, not just providing medical treatment. WCB and the Appeals Commission incorrectly assume that entitlement of a worker diagnosed with chronic pain consists of medical treatment only without any compensation of an earning loss or vocational rehabilitation which is not in compliance with Section 15.1 of the Charter or Alberta Human Rights Act. A study by Noonan and Wagner determined that Alberta was one of the provinces that had not complied with legal precedence (SCC) and have continued to provide only medical treatment for chronic pain but no compensation for an earning loss or vocational rehabilitation which is illegal. The question is “why has the Appeals Commission not addressed the issue of non compliance as a quasi-judicial body to ensure that all workers are treated equally” leaving workers with no  alternative but to file a complaint with the AHRC who have the authority and jurisdiction to hear the complaint. WCB and the Appeals Commission incorrectly believe that because Section 6 (a) of the WCA provides the WCB BoD to determine policy which if interpreted correctly, policy must comply with the “Act”, the Charter and Human Rights legislation.

The Alberta Government was aware that WCB did not provide full compensation for chronic pain other than medical treatment and along with WCB, DRDRB and the Appeals Commission covered this up rather than enacting chronic pain regulations as was done by the Nova Scotia Government who in order to comply with the Supreme Court of Canada decision specific to chronic pain in the Martin/Laseur case enacted their chronic pain regulations which provided full compensation for chronic pain and not simply medical treatment as was and is the only part of a full compensation package provided by the Alberta WCB which workers are entitled to. The importance of receiving a PCI rating for chronic pain  which WCB does not provide is that without a PCI rating a worker is not entitled to a disability pension prior to Jan, 1, 1995 as WCB illegally has equated a PCI rating to a disability rating and after Jan 1, 1995, without a PCI rating a worker is not eligible for a NELP.

Of course chronic pain is only one of the many human rights complaints that WCB is guilty of but workers do not understand that at any time they have been treated differently from some one else and can prove it on a prima facie basis, they can file a human rights complaint which at present under a new Director and Commissioner is being taken more seriously than before under the old regime.

Sep 172019
 

By Gerald

Click on the following link: https://www.thestar.com/news/canada/2019/09/04/ontario-injured-worker-advocates-take-discrimination-concerns-to-united-nations.html

Like everything that is wrong with workers compensation systems, it’s the Government who could enact legislation to stop deeming. Deeming is allowed according to the WCA and allows workers compensation boards to comply with the law. Why in a democracy should workers have to go outside Canada to attain justice.

Questionably is why workers forced into workers compensation systems are
treated differently than workers outside of the system when it pertains
to determining disability or loss of earnings. In a case cited as
Villani v Canada (Attorney General)
https://www.canlii.org/en/ca/fca/doc/2001/2001fca248/2001fca248.html?searchUrlHash=AAAAAQAHdmlsbGFuaQAAAAAB&resultIndex=1
the Federal Court of Appeal relied on a real world scenario rather than
an imaginary world as used by WCB specific to deeming. WCB by statute
provided by Governments can and does use deeming to determine an earning loss by using imaginary jobs as a reference to deny an earning loss
resulting in most workers applying for AISH and CPP disability benefits.

The Government could rescind this but have chosen not to resulting in
workers having to bring their cases to the United Nations which makes us
look like a third world country rather than a democratic country that
abuses workers.

Aug 202019
 

By Gerald

My further comments regarding the following news article (in italics):

Workers’ Compensation Board

The province’s WCB board of directors has been reduced from 10 to seven members, which the province says will save as much as $56,000 in spending.

“The reduced numbers will help to streamline the work done by the WCB board of directors, providing opportunity for more effective and efficient decision-making,” said the province in a release.

The new chair is Erna Ference, who replaces Grace Thostenson. The province says she has a background in workplace health and safety, the agricultural industry and fiscal management.

While the board boasts smaller numbers, the province says there will still be the same proportion of employer, worker and public representatives.

Workers compensation is an ancient relic from the past and serves no useful purpose in protecting workers. Employers are provided protection from civil litigation but they pay dearly into a system that does not work at all for workers as witnessed by workers when they are injured or suffer an occupational disease. The only thing WCB does is cause marital breakdowns, suicides, homicides, family poverty which the Government seems to be quite content with.

A cost saving of $56,00.00 is drop in the bucket and will do nothing to streamline the system as the culture of denial is so deeply entrenched into the system that the only way of saving money for employers is to get rid of it and replace it with modern day disability insurance where premiums are shared by employers and workers. This could be achieved very easily saving millions of dollars a year for employers while still protecting employers from civil action and getting rid of the horrendous task of proving causation which is next to impossible regardless of who has the burden of proof. Does it really matter whether a person breaks a leg at home or at work and may not be able to work again until they recover. 

Another option is to retain WCB as a disability insurance company exclusively for workers and employers but change WCB so that they provide unconditional insurance without the impossible task of some one whether it be the worker or the “Board” proving causation. Who really cares!

In my humble opinion it is grossly illogical to pay two disability premiums when one would suffice. I pay for one comprehensive home insurance policy and do not pay home replacement costs, one for the roof and one for the remaining structure. I do not pay collision insurance for the front part of my car and another collision insurance for the back part of the car. I do not pay life insurance for death caused by injuries or disease to the upper part of my body and separate life insurance for injuries or diseases to the lower part of my body.  

For those of you who do not know anything about dual disability insurance that public servants and WCB employees receive, it works like this. When a worker with dual disability insurance is injured, suffers any medical condition, they file a claim simultaneously with WCB and the private insurer. The private insurer responds immediately and a worker starts receiving short term disability benefits as opposed to WCB who have to decide whether the accident or medical condition arose out of and occurred in the course of employment. This could take decades. If the private insurer’s Medical Consultants determine that it is a work related injury or disease, they continue to pay disability benefits but have the worker sign documents which if WCB accepts the claim, any money a worker receives goes back to the private insurer. It shouldn’t take a rocket scientist to figure out which disability insurance is better, WCB who offer conditional insurance or a private disability carrier who provide unconditional insurance.

When considering how much money in salary and benefits are paid to WCB Case Managers and upper level management, DRDRB members, Appeals Commissioners, WCB Legal Counsel, WCB Medical Advisors, support staff, office leasing, furniture etc. it would most likely result in more money paid out for these expenditures than workers receive in disability benefits.

Why should taxpayers pay for dual disability insurance for public servants if WCB provides such great insurance for worker protection. If in fact WCB was totally abolished, no one would miss it at all. A much better plan would be to make disability insurance mandatory on a shared cost between workers and employers with legislation that workers could not sue an employer or a fellow employee in the event of an accident. Disability insurance could be provided by a major insurance company like Sun Life that already provides major corporations like Telus, Government employees and as well as WCB systems across Canada with disability insurance. Sun Life disability benefits are not contingent on proving causation and would kick in immediately for as long as a disability lasts unlike WCB disability insurance which can take decades to receive if at all. I am assisting on four claims, one is 46 years old, another is 28 years old, another is 11 years old and five years old. All are legitimate claims that involved reduced benefits or no benefits at all. With no money paid out by WCB for work related accidents, it is tax payers who are supporting these workers through Social Services and CPP disability payments. In all of the four claims the workers were being supported by Social Services or Services Canada (CPP disability). Interesting enough is that a study in the U.S. concluded that over 76% of the work related pensions to workers were being paid for by tax payers through Social Security which in Alberta would most likely also be the case. The person whose claim went back 46 years had been on CPP disability and AISH since 1992 until he turned 65, costing taxpayers approximately well over $300,000.00 for a work related injury that was eventually accepted by WCB several years ago and received  approximately $13,000.00 as a lump sum back payment which clearly is a joke with no payment by WCB to Social Services, Alberta Health Care and Services Canada who provided the disability pensions and medical care for the worker and his family destroying the myth that the employer funds the system. You can fool some of the people some of the time but you cannot fool all of the people all of the time and I am one person who you can not fool at all. 

There is good news and bad news after legislative changes by the NDP Government. Good news is the NDP removed the cap on maximum insurable earnings. They also legislated interim payments to workers while their claim is being dealt with by a Case Manager, DRDRB and the Appeals Commission. The bad news is that there is no statute of limitations as to how long it takes for a Case Manager to make a decision. As well there is no statute of limitations to how long it takes for the DRDRB to make a decision and there also is no statute of limitations on how long it takes for the Appeals Commission to make a decision. This could take years. If a worker receives interim relief, the time it takes to go through the appeals process does not seem to matter as workers are being paid interim relief. The bad news is that interim relief is not based on a workers earnings, it is based on minimum wage which means that a worker whose earnings are at the high end will receive minimum wage which will ultimately result in losing everything they own with a good possibility of a worker committing suicide, killing WCB employees, their families or the politicians who are responsible for forcing them into a system that does not work.

Patrick Clayton who most Albertans recognize took the law into his own hands when it was apparent that local authorities refused to assist him. Question is: when local authorities do not protect a person is it a crime to protect yourself? It was determined by the Court that Mr. Clayton was not justified to take the law into his own hands and sentenced him to a prison term. Curiously when he served his time, WCB paid him what he was entitled to but why did WCB not pay him what he was entitled before he took the law into his own hands. He served his prison time and after getting out, WCB paid him and are still paying him for what he was entitled to. Does this mean that in order to receive the benefits a worker is entitled to, that a worker takes the law into their own hands, serves a prison term and then receives compensation after they get out. The moral of this story is that WCB is telling workers that in order to receive the benefits a worker is entitled to, the worker must get a shot gun, go down to the WCB office and threaten or kill WCB employees and then the worker will receive their benefits. Of course WCB did the same thing with Gregory Jacks who blew his head off with a shotgun and after he  was dead, WCB apologized to his widow and paid her the benefits Mr. Jacks was entitled to.

Having spent my early yeas in the military we were taught to take out the people at the top, not the people at the bottom.Using this philosophy, if Mr. Clayton was smart he would have gone to the legislature building and went after the people responsible for his problems and not after WCB  employees who are simply doing what they are allowed to get away with.

Obviously, by abolishing WCB, it  would open Alberta for business with employers from other provinces most likely relocating to Alberta and employers who are presently in Alberta remaining in the province where employers and workers share the cost of disability insurance without the horrendous task of determining causation.

Last but not least, if WCB is such a great insurance plan, why did the Government bring in regulations to exempt numerous employers and workers from having to be covered by WCB which raises an interesting question. When workers and employers who are exempt from being forced into WCB, if an employer or worker covered under workers compensation is involved in an accident with a worker or an employer that is exempt, they can be sued by an exempt worker or employer in the event of an accident where the worker or employer covered under WCB is at fault. In other words, the “Grand Bargain” envisioned by Meredith is not such a grand bargain at all. Better to mandate that all workers and employers be covered under a non conditional disability insurance to avoid any civil litigation involving workers and employers. Why do something half-assed when there is a better alternative. 

Aug 182019
 

By Gerald

This is good news but this should be only the tip of the ice burg. There are far too many appeals that go to the Appeals Commission resulting in far too many Appeals Commissioners. Clearly there is something wrong with this picture and is very costly. One of the solutions is to have Case Managers arrange in person hearings, subpoena the doctors who are the source of most if not all disagreements who  intentionally provide false and misleading medical opinions or they are not competent in the area of medicine that they are providing an opinion on. I can prove that this happens quite frequently.

For example: the state of Oregon which has approximately the same population as Alberta requires only 4 Adjudicative Law Judges as opposed to Alberta who employ 41 Appeals Commissioners who do not have any medical backgrounds or have any expertise in administrative law specific to WCB and the adjudication of appeals. A better and less expensive method would be to appoint retired Judges to hear appeals and who would subpoena doctors, Case Managers and DRDRB and during trial have adjudicators justify why a workers claim or benefits were denied. All expenses incurred would come out of the accident fund which would eliminate workers having to go into debt to finance their appeal. This would certainly result in expediting claims in a timely fashion rather than to wait for decades to have a claim and benefits accepted and usually after a worker has lost everything which in many cases, they commit suicide or kill their entire family.

There are a number of Boards that were appointed by the NDP that are useless such as the Fair Practice Office, Occupational Disease and Injury Advisory Committee. The DRDRB is another useless body who on most cases rubber stamp Case Manager’s decisions with neither of them having medical expertise or legal expertise. One of the better changes by the NDP was case conferencing (Section 46.4 of the WCA) which is not being utilized by Case Managers DRDRB or the Appeals Commission by referring all medical issues to the Medical Panels Office prior to the appointment of a Medical Panel which in most cases would never be required.  

Questionably is whether WCB is required in the first place as it is virtually impossible for any one to determine whether an injury or disease arose out of and occurred in the course of employment. Proving this or disproving this is extremely expensive and increases the cost of administering a system that entails numerous medical opinions, tests etc.that are inconclusive as medicine is and never will be an exact science. Medicine operates in a grey area where no one can say one way or the other what caused an injury or disease. It would be much more beneficial for workers and employers to mandate employers have disability insurance without proving cause or having a claim denied because of a pre-existing medical condition. Public sector employees have dual disability coverage as opposed to private sector workers who are only covered under workers compensation.Perhaps, the Government could enact legislation where all workers have dual disability coverage rather than having tax payers pay dual disability coverage only for public employees. At present the system does not work and unless changes are made, will never work.

This idea that the WCB BoD determines the “Boards” compensation policy is a blatant lie. WCB through their own Policy Consultation Committee determine the policy they wan enacted and the WCB BoD rubber stamp the proposal. I can prove this as when a person writes to the WCB BoD, the letter is intercepted by WCB and the answer to a question is provided by WCB.  

Aug 072019
 

By Gerald

After decades of studying workers compensation systems in Canada and the U.S., it is apparent to any one who has any  intelligence that a plan that had good intentions has lost it’s usefulness. It is disgusting that the minister in charge of WCB will not respond to a request to explain “who has the burden of proof in the Alberta workers compensation system and yet expects that he has entitlement to being called honorable. Honorable people are willing to go the distance to see that justice is done or seen to be done. It is further disgusting that the Fair Practice Office which is  supposed to assist workers and employers to navigate the system either do not know and refuse to take this issue into the courts. It is disgusting also that the millions of dollars union members pay into unions that this issue would not be taken by unions into the courts. Where are the firefighters, police, paramedics, nurses, public servants etc. when they are required to stand up for themselves against what many refer to as a criminal organization supported by the Government who will not take this matter to the courts. C of QB Justice Millar determined that the burden of proof is on the “Board” The Office of the Ombudsman has determined that initially the burden of proof is on the “Board” and is shifted to the worker on appeal which creates a slippery slope due to the fact that in order to shift the burden of proof, all a Case Manager has to do is to deny the claim. How can any claim be adjudicated if no one knows who has the burden of proof. Everywhere a worker turns, they are confronted with elected or appointed bureaucrats who gather at the public trough and do nothing.  The office of the Ombudsman is a joke as after determining that the “Board” has the burden of proof, the Office of the Ombudsman is supposed to comply with Section 27 of the WCA and refer the matter to the Lieutenant Governor in Council who then determines if an injustice or hardship has resulted to a worker. How much of a hardship or injustice is there when workers are forced to bear the burden of proof. 

Questionably is if in fact the burden of proof is on the worker, who are the litigants. It cannot be the employer as it is rare that an employer will get involved. In reality, the litigants are the worker, WCB, DRDRB and the Appeals Commission. WCB, DRDRB and the Appeals Commission represent the employer who are financed through the accident fund as opposed to a worker who because of the lack of finances are forced to represent themselves or go deeply into debt to hire a lawyer or a worker advocate who who has no legal training in workers compensation law or no back grounds in medicine.  

We have immigrants and refugees coming to this pathetic country and province hoping to start a new life and in order to survive, take jobs that many Albertans are reluctant to take. When these immigrants and refugees suffer a work related injury or disease, no intelligent human being would expect them to have the burden of proof when they have poor language skills, no knowledge of what is expected of them and how the system works. This also would be typical of Albertans who have grade school education. It is of little use to have a Fair Practice Office assist a worker or employer when they themselves do not know how to navigate the system. In every action, whether it is criminal, civil, family, statutory law every one knows or should know who has the burden of proof. How can this be considered a good system for workers whether they are immigrants, refugees or semi-illiterate workers who are born in Canada or Alberta when no one knows who has the burden of proof. I did not serve this country in the military to protect the interests of business owners. politicians who sit on their fat asses and do nothing to change the damage they have done to workers.

Workers compensation should be abolished and employers mandated by law to provide disability insurance that is guaranteed without the need to prove causation or to prove entitlement to benefits. Worker’s primary care doctors would not have to fight to have their patients receive benefits. For example; most if not all workers have pre-existing degenerative disc disease. WCB will not provide benefits other than on a temporary basis as opposed to private disability insurance who will provide benefits for short term and long term disability for DDD. No one should be forced into a system that has been the source of criticism by every royal commission in Canada that has ever been tasked with the evaluation of the system. You can put gobs of lipstick on a pig but at the end of the day it is still a pig and that is typical with WCB.

Clearly, every one must know that private sector workers pay for dual disability benefits for public workers who do not have to fight for disability benefits as if they get sick or have an accident. They can file a disability claim with the private insurer and also with WCB. The private insurer will and does guarantee instant benefits as opposed to WCB who may never pay any benefits and generally never do, especially permanent benefits. Workers in the private sector cannot double dip, so if WCB accepts their claim, all of the compensation paid goes back to the employer. This being the case, why would any moron enact legislation to ensure that only private sector employees such as firefighters, police and paramedics to name a few who are guaranteed disability benefits. The right thing to do is to make it mandatory that all employers in the province provide dual disability benefits to ensure that no worker becomes a charge on family, friends and society. This could be done by a shared cost between workers and employers rather than having tax payers pay via income tax to support workers who have had their claim s and benefits denied illegally by WCB.

The whole system is a convoluted piece of garbage and should be terminated if the present situation is not changed. The whole concept of workers compensation proposed by Meredith was to assure workers that when they are injured, exposed to occupational diseases or killed they would receive compensation and in turn employers would be protected from civil actions. Only one part of the historic compromise has been attained. Employers cannot be sued and workers face unobtainable benefits when they have a work related accident.  

In reference to first responders being provided preferential and differential treatment through legislation specific to presumption, this obviously is discrimination based on provision of services. According to the Charter and provincial human rights legislation, all individuals are to be treated equally so why would a government enact legislation and regulations providing differential treatment to some workers and not to others questions the mentality of the people we elect. Do the people we elect believe that other workers do not get cancer, have heart attacks and have mental issues because of work related factors.

The following e-mails were also sent to the U of A Faculty of Law specifically to professors to explain who has the burden of proof in Alberta workers compensation system. This e-mail was sent to Cameron Hutchinson, Mathew Lewans and Eric Adams at the U of A Faculty of Law who should be able to explain something this simple. 

At times Governments enact legislation and appoint adjudicative bodies to administer a system without providing any direction or interpretation of how to adjudicate the thousands of claims that are adjudicated by lay people. The workers compensation system is a good example of a system that no one knows whether adjudication is based on a strict civil system which is an adversarial system with two litigants, a plaintiff and a defendant consisting of a worker and an employer. A known fact specific to civil law is that in most cases, the burden of proof is on the plaintiff but according to the Supreme Court can be reversed at times as determined in Snell v. Farrel. According Dr. Terence Ison, a well known expert on workers compensation specific to adjudication of claims, adjudication is based on an inquiry system, not an adversarial system typical of civil litigation and the entire burden of proof both for and against is on the respective “Boards” which was proposed by Meredith over a hundred years ago. According to the WCA, the proposal of an inquiry system is supported by statute by providing exclusive jurisdiction to WCB to investigate and gather the facts. The WCA also provides WCB the same powers as the Court of Queens Bench and as well all the powers under the Public Inquiries Act. With what appears to be an easy enough system to understand that there is a big difference between civil law and an inquiry system, adjudication of claims is and has been based on an adversarial system where the burden of proof has been placed most likely illegally on workers who do not have the knowledge, financial ability and legal right to gather evidence, subpoena witnesses to support their claims and entitlement to benefits. On numerous occasions, it has been requested to the Alberta Government to explain how an inquiry system works and if in fact the burden of proof is entirely on the “Board” as suggested by Dr. Ison who is supported by other provincial workers compensation systems or is the burden of proof on workers to prove their case and the burden of proof on employers to rebut any evidence that is provided by a worker. It would be greatly appreciated is you could explain how an inquiry system is supposed to work. Thank you! Respectfully; Gerry Miller 

Needless to say there was no response and more than likely will not respond, just as Mr. Copping has not responded. I came across a lawyer in Ontario, Omar Ha-Redeye who wrote an article on the illegal use use of the but for test and material contribution test in workers compensation systems and the following e-mail was sent to him;

I have read several articles by you and question why many worker compensation systems in Canada place the burden of proof on workers despite the fact that workers compensation is supposed to be based on an inquiry model, not an adversarial model. Worse yet is that the “but for test and material contribution test” is used as a legal standard when workers are forced to bear the burden of proof. After reading your article http://www.slaw.ca/2016/11/20/modified-causation-in-workers-compensation/ it would be fair to suggest that placing the burden of proof on workers is not in compliance with the legal standards that separate civil law from administrative law that defines workers compensation systems. Curiously is that the Manitoba Workers Compensation Board https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf places the entire burden of proof both for and against on the “Board” whereas in Alberta, the impossible burden of proof is on the worker. Dr. Terence Ison who was recognized as Canada’s foremost expert on workers compensation is quoted in many of his articles stating that there is no burden of proof on workers or employers and that in an inquiry model, the entire burden of proof both for and against is on the “Board”. Dr. Ison also states in his numerous articles that adjudication is not based on the civil standard which in your article, you are in agreement with. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj In your opinion who has the burden of proof in workers compensation and why has the burden of proof shifted to workers who do not have the knowledge, financial ability and legal right to gather evidence due to the exclusive right of the “Board” to gather evidence. 
Respectfully; 

Gerry Miller 

Delving further into who has the burden of proof in workers compensation I found that British Columbia has shifted the burden of proof from workers to the Board in 1968. When reviewing Meredith and leading up to acceptance of the Meredith Principles, he was of the belief that adjudication of claims should not be based on an adversarial principle which in my opinion should have then never resulted in adjudication being based on civil law which is specific to an adversarial model. This raises the question as to what is defined as an inquiry system. Is an inquiry system an adversarial system where a worker has the burden of proof. If this is so, the Dr. Ison is incorrect in his interpretation of who has the burden of proof.

According to the Alberta Court of Queens Bench in the case of Allsop v Alberta Appeals Commission, Justice Clackson determined that the Appeals Commission were of the opinion that workers had the burden of proof, thus making adjudication of claims an adversarial process by referring to Policy 01-03 where the B of D enacted policy placing the burden of proof on workers. Questionably is if the WCB B of D can enact policy placing the burden of proof on workers when historically the burden of proof according to the Meredith principles was on the Board. Justice Clackson was extremely critical of the use of lay people to hear claims as opposed to having workers having the right to have their claims heard by real judges, subpoenaing of witnesses and the right of cross examination. Justice Clackson does suggest that it is silly to have a court review some of the irrational decisions of Administrative Tribunals based on reasonableness and then hold your nose when it is apparent that the lay people who are adjudicating claims have no legal training or medical training and yet a Judge is forced to give deference to a bunch of morons. After having gone through numerous Judicial Reviews, it is my opinion that a Judge should be able to direct that the claim be reheard in the courts with full disclosure and the subpoenaing of the people who made the decisions along with the doctors who provided the opinions that adjudicators used to deny a claim or benefits. Putting the lives of people into the hands of morons is not the way the justice system is supposed to operate. It is well worth the time to read Justice Clackson’s evaluation of administrative law and recommends a procedure that is identical to the U.S. where claims are heard by real Judges in the courts and not morons appointed by Government.  Notably in the U.S. is that 67% of the claims denied by insurance companies are overturned by Judges with increased costs to the insurance companies of 59% paid to lawyers for costs and disbursements when representing a worker.