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.

Jul 292019
 

Dear Mr. Copping;

Congratulations on your election win and selection as labor minister by Mr. Kenny. From your biography I see that you have impressive credentials as the new labor minister. Better yet, some of your studies were from Osgoode Hall where I assume you must have met Dr. Terence Ison who is acknowledged as Canada’s foremost expert on administrative law as it pertains to workers compensation. 

We have a perplexing problem in Alberta that has been around for decades and that is who has the burden of proof both for and against in the workers compensation system. According to Dr. Ison neither the worker or the employer has any burden of proof. Dr. Ison suggests that in the workers compensation system in Canada, the “Board” is the only one who has the burden of proof, both for and against in what he refers to as an Inquiry system. This was noted by Justice Bruce Millar of the Alberta Court of Queens Bench when I was involved in a Judicial Review which resulted in the Appeals Commission and WCB Legal Counsel being advised by Justice Millar that my client under an Inquiry system had no burden of proof whatsoever, yet both WCB and the Appeals Commission persist in placing the burden of proof on workers. It is rare that an employer ever appeals any decision and rarely if ever attends an in person appeals hearing when WCB, DRDRB and the Appeals Commission assume the role of the employer to contradict a worker who is left on their own to argue their claim.

If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where 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:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj   Scroll down to page 814 third paragraph where Dr. Ison 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.

In Albertathe burden of proof is put on the worker which is typical of an adversarial system which was never the intention of Meredith specifically because workers do not have the resources or financial ability to pay medical costs, legal costs to fight WCB, DRDRB and the Appeals Commission. Workers also do not by statute have the right to investigate, do not have the same powers as a the Court of queens Bench as does WCB, they also do not have any powers of investigation as does WCB under the Public Inquiries Act. 

My question to you is the same question I have asked previous Ministers in charge of the WCB. Who has the burden of proof in the workers compensation system in Alberta or is Alberta the only province in Canada that adjudication of claims is based on an adversarial system. 

It seems no one wants to answer this very simple question which after one hundred years, the people adjudicating claims should know whether Alberta operates on a strict civil law standard where workers are regarded as plaintiffs rather than claimants. I would appreciate a response although I don’t expect you or any one else would have the intestinal fortitude to upset the sacred cow.  

Adding to this is that we have laws in Canada and in the province of Alberta which we as citizens are expected to obey. That being the case why is it that WCB and the Appeals Commission are not held to that standard and if they are not, then why should any one obey the law. Our courts, including the Supreme Court of Canada find that WCB and the Appeals Commission are not in compliance with the law and WCB and the Appeals Commission continue to ignore the law and if they are sued, claim an honest mistake. When is the Alberta Government going to either fix the system to comply with the Meredith Principles or simply get rid of the whole system and the scumbags that are placed in positions where they are allowed to abuse workers and their families. By the way I am not an injured worker, have never filed a claim but I would be amiss if I did not assist and care for the less fortunate in our society which is more than the Government can say as in my opinion, the Government does not give a rat’s ass as to what happens to injured and disabled workers.

  • Gerry Miller
Jul 232019
 

Note from Gerald: This study should not surprise any one when one of the most corrupt organization is allowed by Governments to have absolute control over the acceptance of claims and benefits. What was supposed to be a safety net for workers when they suffer workplace injuries and diseases becomes a living hell. 

Referenced from https://www.workerscompensation.com/news_read.php?id=33174

Boston, MA (WorkersCompensation.com) – Does being out of work for more than one week put a worker at an increased risk of suicide? Apparently it does, at least in New Mexico. Researchers out of Boston University and elsewhere looked at data for more than 100,000 workers injured between 1994 and 2000 and linked it with earnings and mortality data through 2013 to determine if there was a connection between increased suicide rates and drug overdoses among injured workers.

“There was almost a 3 fold increase in combined drug related and suicide mortality hazard among women and a substantial increase among men,” the researchers reported in the American Journal of Industrial Medicine. “Circulatory disease mortality hazard was elevated for men.”

Incidents of drug overdoses and suicides have been on the increase for nearly two decades, contributing to a decline in life expectancy in the U.S. The researchers speculated that increased rates of depression and opioid use among injured workers might be one of the drivers.

“Depression is among the most well documented long term health consequences of workplace injury,” they wrote. “Work related injuries, when compared with injuries outside of work, are more strongly associated with depression. The impact on depression from work related injuries may be due to a combination of the financial burden of the injury, the difficulty involved with pursuing workers’ compensation claims, chronic pain, and occupational injuries typically being more severe and involving longer recovery than non-occupational injuries.”

Additionally, they noted that injured workers may tend to use prescription pain medicines, possibly for an extended period of time and with increased doses. “This may increase the opportunity for misuse of drugs such as opioids and potential for accidental or intentional overdose,” they said.

“Lost time injuries were associated with mortality related to drugs and suicide,” they reported.” Among women, lost time injuries were associated with a near tripling in the hazard of drug related deaths and a 92% increase in mortality hazard due to suicide. For men, the lost time injury was associated with a 72% increased hazard of suicide and a 29% increase in drug?related mortality hazard, although the increase in drug related mortality was not statistically significant.”

The researchers said improved workplace conditions, better treatments for pain and substance use disorders, and post-injury depression treatment could have a significant impact.

“Although confounding may account for our findings, we hypothesize that hazardous working conditions are one aspect of the structural causes of high mortality rates from drugs and suicide,” the researchers said. “Though not conclusive, our analysis suggests that reducing occupational injury rates may affect subsequent mortality from specific causes. It, therefore, seems prudent that public health policies should focus on both preventing workplace injuries and improving health care for injured workers.”

May 232019
 

By Gerald

Your response as to who has the burden of proof

(Read the response: Page One Page Two)

Dear Mr. Robinson;

While I appreciate the response from you as to who has the burden of proof in the workers compensation system, I question your response. As you know or should know, I believe in total transparency in any of my communications as there is nothing confidential nor should there be with any correspondence specific to WCB issues so I will send your response to all of my many e-mail contacts. From the FPO website your CV states, https://fpoalberta.ca/about-us/fair-practices-commissioner/ 

it would appear that you are somewhat qualified in administrative law but have no experience or background in administrative law that is specific to workers compensation administrative law that is vastly different than other administrative laws. As you know or should know, adjudication of claims is based on an inquiry system, not an adversarial system and therefore the burden of proof both for and against is on the “Board”.  Unfortunately for workers, adjudication is and has been based on an adversarial system rather than an inquiry system which is and always has been illegal. Your reply that the FPO does not provide legal advice is concerning as if the FPO is to assist workers and employers, then it is your responsibility to ensure that the correct method is used and understood by workers and employers who must be aware of who has the burden of proof both for and against in an inquiry based system unless you are concerned that if this was common knowledge that the FPO would be redundant and you all would lose your jobs. Is it thus better for you to keep workers and employers in the dark than to enlighten them with what should be common knowledge. 

Alberta’s workers compensation system is over 110 years old and from the time that the system first began, every one filing a claim should have known who has the burden of proof. In criminal law, every one knows that the burden of proof is on the Crown. In civil law the burden of proof is usually on the plaintiff although in some civil claims the burden of proof can be shifted from the plaintiff to the defendant according to the Supreme Court of Canada. It is grossly illogical to have a system that has been in existence for 110 years and you, WCB, DRDRB and the Appeals Commission do not know who has the burden of proof when the most important question in any legal system is who has the burden of proof.

Unquestionably, the determination of who has the burden of proof both for and against is the most crucial or one of the most important part of the adjudication process. Had this issue been determined decades ago, there would have never been any need for presumptive status for first responders. In every claim, as long as a claim remains in a neutral status, presumption takes effect and the benefit of doubt is historically always to have gone to the worker which is the way it was supposed to happen but because adjudication some how over the years took on an adversarial standard where the worker had to prove a work related injury or disease,  the benefit of doubt went to the “Board”. 

If a person reviews WCB policy 01-03 Part I Int. 3, the policy states that a worker does not have to provide any proof beyond a reasonable doubt. In an inquiry based system a worker is not required to provide any proof, that is the sole domain of WCB according to the WCA Section 17 (1). Policy 01-08 Part I specific to new evidence. What new evidence? If the burden of proof is solely on WCB and they have performed a thorough investigation, there should not be any new evidence and any new evidence should result in disciplinary action against an adjudicator who was not responsible for gathering the evidence. Taking this further, in the Appeals Commissions Practice Guidelines #5 Content J specific to new evidence that is presented to the Appeals Commission for reconsideration of an original Appeals Commission decision. What new evidence are they  referring to as if the system is supposed to be working according to plan and WCB has done their due diligence by investigating and gathering the facts, at no time should there be any new evidence. It is grossly illogical for the Appeals Commission to deny a reconsideration based on their belief that the worker has the burden of proof and with due diligence the evidence that a worker has provided now could have been presented at the earlier Appeals Commission hearing. Being that gathering of the facts is exclusive to WCB, it is illegal for a worker or an employer to gather the facts.

As you know or should know, the legislature has through legislation enacted the WCA that provides “exclusive jurisdiction” (Refer to Section 17(1) of the WCA) whereby only WCB is legally entitled to investigate and gather the facts and this is explained in WCB policy also by referring to WCB Policy (02-01 Part I) which I request that you read. For your information, the Ombudsman has already determined this issue and so did the Court of Queens Bench. The only problem is that WCB, DRDRB and the Appeals Commission are not complying with the WCA and WCB Policy which it is your responsibility to advise the Ombudsman or the Justice Minister to direct that WCB, DRDRB and the AC comply with the WCA and WCB Policy by placing the burden of proof both for and against solely on the Board. Of course no one makes these shysters and gangsters do anything as witnessed by the fact that despite the fact that the Supreme Court of Canada determined that chronic pain must be recognized and workers diagnosed with chronic pain must receive the same compensation benefits as workers who do not have chronic pain but receive compensation benefits which almost 20 years later they are still not in compliance.

As a public body that is set up to assist workers and employers, in order to assist and represent them, it is your duty to ensure that all workers and employers are aware that neither the worker or the employer has any burden of proof in an inquiry based system rather than passing the buck to the Ombudsman or the members of the legislature. If necessary, when the FPO is aware that WCB, DRDRB and the Appeals Commission are not in compliance with the law, that you contact the Justice Minister and have the Justice Minister direct that WCB, DRDRB and the Appeals Commission to comply with the law. Other than that, the FPO is another useless body created by Government. Have a nice day!

Mar 252019
 

By Gerald

The following reason is why the Alberta Human Rights Commission are dismissing complaints without investigating the legitimacy of the complaint. As well, any prima facie evidenced complaints specific to WCB are dismissed most likely on the direction of the Justice Minster and Minister in charge of the WCB;

The Alberta Human Rights Commission has put in place the Case Inventory Resolution Program in an effort to reduce a massive backlog of cases. For the past seven years the number of complaints received by the Commission has exceeded the Commission’s capacity to process them. Those unresolved complaints are carried forward into the next year resulting in a growing backlog of complaints. As a result, it can take up to 2 years for a complaint to reach the conciliation stage and approximately 4 years for a complaint to reach the investigation stage.

The Chief of the Commission, Michael Gottheil spoke on March 11, 2019 to the Canadian Bar Association Labour & Employment south section about the new program for addressing the backlog of cases at the Alberta Human Rights Commission.

The Case Inventory Resolution Program

As part of the change all complaints filed before January 1, 2019 will be placed in the Case Inventory Resolution Program, which will consist of an investigation team and a conciliation team.

  1. Investigation Team

There are currently 300 complaints in the investigation queue that have been through conciliation but were not successful in reaching a resolution and are now waiting for a Human Rights Officer to investigate.

The investigation team has been assigned to address the cases in the investigation queue. The team will consist of 4 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 5 cases per week and the entire team will meet weekly to review the files.

The Human Rights Officers will review each case, gather additional information from the parties and may request specific information and submissions on whether the case should be dismissed or not. The parties will have 30 days to respond to the request.

Once all the material has been gathered, the Human Rights Officer will review the file and the parties submissions and discuss with the team. The Director will make a decision on whether the case should be dismissed or not.

The Chief of the Commission anticipates the 300 cases will be assessed within 4-6 months.

  1. Conciliation Team

There are currently 1200 to 1300 complaints waiting to be assigned to a conciliator to conduct conciliation.

The conciliation team has been assigned to address the cases in the conciliation queue. The team will consist of 6 Human Rights Officers, the Director and a Project Lead. The Human Rights Officers will be assigned 4 cases per week.

Initially, the Human Rights Officers will contact parties who have cases in this queue to inform them of the process, gather background information and schedule an in-person conciliation meeting 6-8 weeks down the road. Prior to the meeting the Human Rights Officer may contact the parties by phone and gather any additional evidence.

At the meeting, the conciliator will assist the parties in coming up with a resolution. If a resolution is reached, parties will sign a Memorandum of Agreement and Release. If no resolution is reached at the meeting, the conciliator will write a case summary with a recommendation to the Director. If the recommendation is to proceed to Tribunal, the conciliator will be encouraged to make a non-binding settlement recommendation.

The Director will then decide whether the case is dismissed or sent to Tribunal.

The Respondent will also be encouraged to make a settlement offer at this stage. The Respondent can request that the Director exercise their discretion under section 22 of the Alberta Human Rights Act to discontinue if the Complainant does not accept the offer.

The Chief of the Commission anticipates the 1200 – 1300 cases will be dealt with in 12-18 months and the conciliation team will likely start in May.

More information on the Alberta Human Rights Commission’s Case Inventory Resolution Program can be found here.

Mar 142019
 

By Gerald

Interesting that the Alberta Human Rights Commission would defer to any decision made by WCB or the Appeals Commission!

In Kebede v. SGS Canada Inc., 2019 AHRC 3the Alberta Human Rights Tribunal (the “Tribunal”) recently dismissed a portion of a human rights complaint on the grounds that the issue was already decided by the Alberta Workers’ Compensation Board (“WCB”).

The Complainant filed a human rights complaint asserting, among other things, that he suffered racially-based harassment and discrimination during the course of his employment with SGS Canada Inc. (“SGS”).

The Complainant sought compensation under the Workers’ Compensation Act for psychological injury that he alleged he suffered as a result of the same alleged racially motivated harassment and discrimination. The Complainant’s claim for compensation was denied by the WCB as it found no objective confirmation of work-related events or stressors that supported the Complainant suffering from “a chronic onset psychological injury arising out of and occurring during the course of employment.”

SGS sought the dismissal of the human rights complaint on the basis of the WCB’s denial of the Complainant’s WCB claim.

The Tribunal found that it could exercise its discretion to dismiss a portion of the complaint on the basis of issue estoppel as it found that:

  1. the same question was decided by the WCB;
  2. WCB’s decision was final; and
  3. the parties to the WCB’s decision were the same as in the human rights complaint.

The Tribunal exercised its discretion to dismiss the racially-based harassment and discrimination portion of the complaint as the Tribunal found that dismissing that portion of the complaint would not create unfairness. Specifically, the Tribunal noted that there was no new evidence or evidence of unfairness in the adjudication of the WCB claim.

This decision serves as a useful reminder of the Alberta Human Rights Commission’s powers under s.22 of the Alberta Human Rights Act to, at any time, refuse to accept a complaint on the basis that the complaint is one that: (i) could or should more appropriately be dealt with; (ii) has already been dealt with; or (iii) is scheduled to be heard; in another forum or under another Act.

This provision of the Alberta Human Rights Act may be particularly helpful to employers given the current delay in Alberta human rights matters proceeding to a hearing and the likelihood that another forum will issue a decision well in advance of an adjudication of the human rights matter. Further, dual proceedings may become more frequent given the increasing overlap between WCB and human rights matters, the increase in harassment related concerns in the workplace, and the added jurisdiction of Alberta Occupational Health and Safety over harassment in the workplace.

Mar 102019
 

By Gerald

This is an article written by Peter Rousmaniere who is a well known journalist and expert on workers compensation. I attended a webinar on Thursday March 7, 2019 at 10:00 AM hosted by experts in the area of workers compensation. The subject of using impairment ratings as a direct method of rating disability was discussed and the conclusion was that it has caused major financial problems for workers when determining disability which is why I went to court as this is a violation of a workers right to be compensated for a loss of earnings, not for the difficulty a worker would have performing basic activities of daily living which has got nothing to do with a loss of earnings.

Basically, the blame for all of this as determined by the Court of Queens Bench and supported by legal counsel on Feb. 20, 2019 was the fault of the WCB BOD who enacted the policy equating an impairment to a disability, thereby defrauding workers from receiving the loss of earnings they were entitled to. After the Penny decision, the Conservative Government should have directed that all claims prior to Jan 1, 1995 be re-adjudicated and workers life time pensions that were determined based on impairment ratings be re-calculated. It is obvious that the Conservative Government aided and abetted the Alberta WCB to defraud workers by failing to comply with the WCA as determined by the Alberta Court of Queens Bench and the Alberta Court of Appeal in the Penny case.  Rather than to re-adjudicate all claims prior to Jan 1, 1995, the Alberta WCB BOD simply changed their policy to enact a dual awards policy that separated an impairment rating from a disability rating by using impairment ratings to determine a NELP and an ELP to determine an earning loss.

It will be worthwhile for people to see how the Office of the Ombudsman will handle my complaint in regard to this matter. Will they sacrifice or kill the sacred cow or will they recommend that the Government re-adjudicate all claims prior to Jan 1, 1995 and pay workers what they are entitled to or will the Office of the Ombudsman simply attempt to coverall of this up just as the Conservative Government did after the Penny decision. None of this was an honest mistake as the Government and the WCB BOD knew what they done was wrong as witnessed by the fact that after the Penny decision, they separated impairment ratings from loss of earnings and went to a dual award system but failed to pay workers what they were entitled to prior to Jan 1, 1995.

Click on the following link:

https://www.workerscompensation.com/news_read.php?id=31849

Mar 072019
 

By Gerald

Interesting law suit going on across the border specific to presumption. In the U.S. all State workers compensation systems determine claims based on an adversarial system meaning the burden of proof is on the worker, yet most States enacted laws providing presumptive status for firefighters and extended presumptive status to other first responders, prison guards and nurses. Obviously this is discrimination when certain individuals are treat differently than other individuals and the Federal Government is now fighting the State Government. Presumptive status has opened up a can of worms all throughout North America. Question is, how can a State provide presumptive status to firefighters, first responders, prison guards and nurses and not provide presumptive status for workers employed at a nuclear weapons facility who would have far higher the risk of cancers than any firefighter. 

In Canada, we are supposed to adjudicate claims based on an inquiry system where the burden of proof is on the “Board”. The “Board” must not only determine if there were hazards in the work place, they must also prove that a worker was exposed to a hazard outside of the workplace and the time and place that the worker was exposed to the hazard. Because a worker always receives the benefit of doubt and if WCB cannot prove contrary, the claim must be accepted.  

Rather than providing special treatment for firefighters, first responders and continuing to add mote workers to the list of preferential treatment, why not simply enact legislation giving all workers presumptive status and force the “Board” to prove an injury or disease happened outside of the workplace which would make more sense than to having workers having the burden of proof without the medical and financial ability to provide evidence to support their claims. 

Gerry Miller  

DOL Files Suit Against Benefits For Ill Hanford Workers; State Considers Amending Law



Hanford, WA (WorkersCompensation.com) – The federal government is worried that a new law in Washington state would give workers at the Hanford nuclear reservation easier access to workers’ compensation than other employees in that state. Meanwhile, state legislators are contemplating an amendment to the law that could increase the number of workers eligible for benefits.

Last week, the Department of Justice laid out its case against the new state law, claiming that the 100,000 past and current workers at the nuclear weapons facility would have an easier time getting workers’ compensation, at a much greater cost to tax payers.

As previously reported in WorkersCompensation.com, the law, passed last year, makes the presumption that exposure to chemicals at Hanford caused illnesses in the employees there, up to and including cancer.

Hanford is considered one of the “most radioactive waste sites” in America covering 200 square miles of contaminated groundwater and including 53 million gallons of liquid waste, 25 million cubic feet of solid waste. The site was a facility for enriching plutonium during World War II and the Cold War, and is where more than 60,000 nuclear warheads were made. The facility closed in 1987.

The Department of Energy, which is responsible for the country’s nuclear facilities, is a self-insured entity and has contracts to cover six current contractors and seven subcontractors that employ workers at Hanford, as well as 61 former Hanford contractors and subcontractors, with workers’ compensation benefits.

The new law would increase the illnesses covered and could be so loosely defined that workers could be compensated for common illnesses, according to the federal government’s documents. The new law could be interpreted to cover illnesses like asthma, chronic bronchitis, Parkinson‘s disease, Alzheimer’s disease and strokes, the DOJ said.

For other workers in the state, a clear link between the illness and their work would have to be shown. Under the new law, work at the nuclear facility would be presumed to be the cause.

Also, the new law allows for claims that had been denied to be reviewed under the new and easier requirements.

The government did not object as the state legislature debated the law which went into effect in June 2018. But in December, the federal government asked a judge to overturn the law as a violation of the Supremacy Clause of the US Constitution – which prohibits states from regulating the federal government.

In its initial suit, the federal government also said the law puts the burden on the federal government to prove that the workers’ illnesses were NOT caused by their work at Hanford, and that the law discriminates against the federal government.

In filings on Friday, March 1, the federal government asked Judge Stanley Bastian to rule on the case prior to its going to trial. The state of Washington is expected to answer the suit and ask that the federal government’s claim be dismissed by March 22.

According to the lawsuit, prior to the law taking effect, the DOE received 5 or fewer claims per year for cancer, court documents said. Since the law took effect, the DOE has received 50 claims for cancer. The department said that 92 claims had been filed under the new law, and most of them would have been denied prior to the new law.

Penser North America, the administrator for the DOE’s workers’ compensation program, said it had referred 41 claims to the state’s Department of Labor and Industries. Of those, 31 were recommended for approval, while 10 were not. Of those 10, eight were approved by the DLI, Penser said in the court filings.

While the DOE can object to those cases, the level of proof to deny them was high, Penser said in court documents.

“DOE must obtain expert witnesses at a significant cost, and must search for, review and organize large volumes of medical documentation,” it said.

Advocates for nuclear workers said the government’s case may not apply

“The suggestion that the supremacy clause of the constitution should prevent the implementation of this program is certainly suspect as the federal government has chosen to employ private contractors at these facilities,” said R. Hugh Stephens, an attorney who specializes in workers’ compensation for former federal employees who worked at nuclear facilities. “These are not typically federal employees and federal employees are not qualified for this compensation, if I am not mistaken, but must apply for federal workers compensation through the US Department of Labor (DOL).”

Stephens also told WorkersCompensation.com he objected to the government’s burden of proof.

“While the government would suggest that its burden is too great, it is useful to remember that many of these workers were exposed to radiation and other hazardous substances without their knowledge or consent,” he said. “This is an ultra-hazardous activity to which different rules should apply. Most of these workers did not become injured after lifting a heavy box or lose their hearing because they were posted near a loud machine. These workers cannot breath because of exposure to beryllium (a dangerous metal), or have cancer caused by exposure to radiation, and those with hearing loss suffer from nerve damage due to exposure to toxic solvents. The shoe is certainly now on the other foot as workers used to struggle to prove their claims in the face of records lost by the DOE or its contractors.”

According to the DOE, if the judge ruled in its favor, sick workers and their survivors would be covered by the Energy Employees Occupational Illness Compensation Act (EEOICA) program administered by the US Department of Labor.

Stephens, whose clients fight sometimes years to get compensation through the program, said the government’s record should discourage a judge from ruling in the DOE’s favor.

“There is a long history of the DOE opposing rightful claims by hard working residents of Washington State. These issues are described at length in the EEOICA. While the Washington State legislature appears to have the upper hand in this dispute with Washington, DC, the federal government and its history of poor treatment of these workers severely undermine its position in this dispute.”

Amendment Considered

Legislation being considered in the state legislature would modify the law. “The presumption established for cancer is amended to also apply to any active or former USDOE Hanford site worker who has cancer that develops or manifests itself and who was not given a qualifying medical examination because a qualifying medical examination was not required,” stated an analysis of HB 1490. The bill was passed in the state House and is now before the Senate Labor & Commerce Committee.