Feb 202018
 

By Gerald 

The rally on Feb. 29, 2012 although it was blacked out by the media did get the attention of Albertans who were concerned enough to write in regarding their concerns with the deliberate refusal of the Alberta government too address the issues of the mistreatment of workers by WCB. This should be the primary election issue as any other issue is secondary to the deliberate mistreatment of any person, worker or non worker. Health care issues involving wait times at emergency rooms is irrelevant, access to doctors is irrelevant, the economy is irrelevant when compared to how workers in Alberta and the rest of Canada are treated by workers compensation systems.
 
Gerry Miller

Labour in crisis 

BY MARILYN GAA, EDMONTON JOURNAL MARCH 5, 2012

Albertans think our well-being rests on the economic thrust of the oil and construction industries. But look again – the most important resource that Alberta can claim is its strong and expert labour force.

With the economy on the upswing, Canadians and foreign workers who are streaming in to do the work should know that our labour force is in crisis.

When our valuable workers are injured on the job, their lives are thrown into turmoil as a result of the Workers’ Compensation Board’s standard operating procedures. Designated doctors contradict expert specialist diagnoses and minimize treatment and compensation, leaving injured workers with no support. Appeals lead to harassment, threats and despair.

Injured workers from Alberta and neighbouring provinces came to Edmonton last week to tell their heart-wrenching stories on the front lawn of Augustana Lutheran Church, across from the WCB offices.

As a member of the public, my first reaction was disbelief. I was shocked to hear that Alberta has lax worker safety standards and lenient enforcement. Employers pay the smallest percentage to the WCB to cover worker injuries and more than a billion un-spent dollars was rebated to those same employers this year, we heard.

Many who stayed away from the gatherings are too afraid of retribution for publicly speaking their stories of hardship at the hands of the WCB.

It is the responsibility of all Albertans to protect this vital resource: our workers. Every family is affected by the possibility of a work-related injury and the disastrous results of inadequate compensation. As an election is near, we must ask every candidate about this crisis.

Marilyn Gaa, Edmonton

Feb 202018
 

Written by Gerald

Ms. Gray, Notley and Ganley

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

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

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

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

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

Feb 152018
 

By Gerald

When reviewing WCB chronic pain policy 03-01 part II app. 7, it is little wonder that the people who enact policy are a few bricks short of a load. Policy 03-01 part II app. 7 in part states;

APPLICATION 7:  CHRONIC PAIN/CHRONIC PAIN SYNDROME

 Issue Date:  August 26, 2015 Part II  App. 7   page 1 of 3  Supersedes:  January 1, 2004   
Alberta WCB Policies & Information 
 
Copyright 2015 All rights reserved 
1. When does WCB apply the provisions of this application? 
This application applies only to chronic pain and chronic pain syndrome when pain and pain behaviour is inconsistent with organic findings (see Questions 2 and 3). It does not apply to cases of persistent, lingering pain due to discernible organic diagnosis or a psychiatric condition. Such cases are considered for entitlement under WCB’s policies relevant to the specific diagnosis or condition. 
 
2. When does WCB consider sponsoring treatment for chronic pain? 
WCB may consider treatment for chronic pain when the chronic pain has the following characteristics: 
 
• pain and related symptoms develop as a consequence of a compensable injury or condition,

• the pain persists beyond the usual healing time for the injury, 

• complaints of pain and pain behaviour are inconsistent with organic findings, and 

• pain impairs earning capacity. 

Note that this policy only applies to workers diagnosed with non discernible organic pain. It does not apply to workers who have discernible chronic pain. Note also that WCB only provides treatment for chronic pain but only  if there is a loss of earnings. If there is no loss of earnings a worker is not entitled to treatment, no earning loss or vocational rehabilitation despite there having to be an earning loss to receive treatment. WCB will not provide a PCI rating or a loss of earnings benefit even if a worker meets all of the criteria for chronic pain. As they have stated in their policy, they will provide only treatment for chronic pain. The difference between chronic pain and chronic pain syndrome is that if a worker is diagnosed with chronic pain, they receive no compensation other than treatment. A worker diagnosed with chronic pain syndrome which has to include MLD will receive compensation (earning loss, treatment and vocational rehabilitation) 

Obviously, a worker who has an earning loss and only receives treatment is being discriminated against. Workers who do not have chronic pain are provided with full compensation(PCI rating, earning losses and vocational rehabilitation) which is contrary to the SCC decision in the Martin/Laseur case that chronic pain be recognized. Although the WCB WCB does recognize chronic pain in policy 03-01 part II App. 7, they do not provide equal benefits as a worker who does not have chronic pain which is contrary to human rights legislation and section 15.1 of the charter.

I advise all workers who have been diagnosed with chronic pain to file a human rights complaint if in fact, you have not received full compensation benefits for the diagnosis of non discernible chronic pain. 

Feb 152018
 

By Gerald

Click on the following link: http://iavgo.org/supreme-court-of-canada-confirms-that-workers-compensations-boards-must-defend-workers-human-rights/

This is a very important decision for all workers in Canada. This decision also is a decision that has come back to bite the Appeals Commission, WCB and the Court of Queens Bench in the ass. This decision puts WCB, DRDRB and the Appeals Commission having to apply that an employer has a duty to accommodate a disabled worker. Question is, how are they going to proceed when they do not have appropriate legislation or policy in place which has already created a problem for a worker I represent.

Based on my own experience when I represented a worker and I can produce the documentary evidence to support me, the worker was injured on Feb. 7, 2007 and had his claim accepted. Based on an IME from a WCB Medical Advisor, the doctor determined that the worker would make a full recovery by May 31, 2017. I did not disagree. Problem was is that the Case Manager cut the worker off of TTD by lying about the employer offering modified work. I appealed the decision of the Case Manager to the DRDRB who determined that the employer had offered modified work based on the Case Manager lying about modified work being offered and the worker had not accepted the work which was a lie and verified by the employer that they had never offered modified work and had no intention of offering modified work once they found out that the worker had previous work related injuries and he had lied to them. They found out that he was on CPP disability as well as AISH, had permanent work restrictions provided by WCB and that a WCB Case Manager had advised the worker to lie as without lying no one would hire him. 

The DRDRB denied a request to be paid TTD up to the end of May because they believed that the employer had provided an offer of modified work and the worker refused. We appealed and this went before the Appeals Commission and they denied the claim for TTD up until the end of May with reasoning that the employer had offered modified work but the worker refused. Both the worker and the employer denied that no such agreement was ever offered or refused. The Appeals Commission and the DRDRB were under the impression that the Case Manager would not lie and that both the employer and the worker were liars despite that there was no written offer of modified work by the employer or a letter to the employer from the worker refusing an offer of modified work.

I filed the paper work for a Judicial Review/Appeal and this was heard by Justice Bruce Millar. The Appeals Commission and WCB were represented by two senior lawyers, Hermiston and Gupta with Hermiston telling me that she had never lost a case. Unfortunately as she and Gupta found out, I was no slouch when it came to WCB issues and Justice Millar  ruled in our favor with costs against WCB and the Appeals Commission. Justice Millar also directed the Appeals Commission contact the employer to determine if there was a written offer of modified work. Obviously, a written offer of modified work is a contractual agreement between a worker and employer and must be provided in a written form which is how contractual law is normally binding on both parties. Justice Millar also advised both Hermiston and Gupta that under the workers compensation system, it is an Inquiry system when both Hermiston and Gupta argued that it was up to the worker to investigate and gather the facts, not WCB which Justice Millar did not agree with based on the WCA and WCB Policy which directs that the Board has the burden of proof.

Rather than comply with Justice Millar, the Appeals Commission refused to contact the employer and finally agreed that the employer did not offer modified work but disagreed with Justice Millar that there need to be a written offer of modified work because WCB policy does not mandate that a written offer of modified work be provided, thus resulting in situations such as this when a Case Manager lies to get her bonus and both the employer and worker are then accused of being liars. After reconsidering Justice Millar’s directive, the Appeals Commission again denied TTD to the end of May with their reasoning that the system was not based on an Inquiry system and that it was the worker who must investigate and gather the facts and present these facts at the first Appeals Commission hearing.

Again we had to request Judicial/Review and went before a different Judge (Yamauchi) who disagreed with Justice Millar that the “board” by law must investigate and gather the facts resulting in Yamauchi upholding the Appeals Commission decision and the the worker losing the Judicial Review/Appeal. Unfortunately when the claim went before Yamauchi, I was not allowed to represent the worker and the Appeals Commission’s Legal Counsel told Yamauchi that if he allowed me to represent the worker she would appeal the decision to the Alberta Court of Appeals if she lost on a question of law (Legal profession Act) as she knew that if I represented the worker, she would lose, just as Hermiston and Gupta lost. The worker did the best he could but with only a grade 8 education, it was apparent that he did not have a clue how to argue the case.

The decision of the SCC is a good decision, however the issue of a “written”offer of modified work or any work now becomes very important. If an employer or worker has no proof that modified work or an offer of accommodation was presented by the employer, how then could it be proven that an employer did or did not not offer modified work to a worker and whether the worker accepted or refused the offer unless there was a written offer by the employer and a written response from the worker accepting or refusing the offer. Questionably is how stupid are these people that they would suggest that a written offer of modified work is not required and a written response from the worker is also not required.  

Based on Justice Millar’s decision that there be a written offer of modified work and the refusal of the Appeals Commission to comply, I wrote a letter to the WCB BoD and my letter was intercepted by WCB and never did go to the WCB BoD. I received a letter from WCB stating that they did not feel a need to have a written offer of modified work mandatory, signed by both the employer and the worker which is totally stupid but is something stupid people would do. According to the letter from WCB, they do recommend this be done but it is up to the discretion of the Case Manager.  

I have been criticized for calling people derogatory names and advised I should use politically correct words to gain favor from people like Gray and Notley. If a person is stupid, an asshole, a clown or any other term which I include myself as being at times, political correctness is not gong to get me any where and if people don’t like it they can kiss my royal Canadian ass. Do I call Clifford Olson a gentleman rather than the monster he was. I rest my case!

At present, I read today that the Montana State Government are contemplating terminating the States workers compensation system which may be the right thing to do as it serves no useful purpose.

Feb 052018
 

by Gerald

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jan 312018
 

By Gerald

Yesterday I sent out an e-mail specific to the Appeals Commission denying requests to subpoena doctors and payment of conduct money. Interesting enough the Court of Queens Bench determined that the Appeals Commission cannot simply deny the request and especially when there is a difference of medical opinion and cross examination is required https://www.canlii.org/en/ab/abqb/doc/2010/2010abqb393/2010abqb393.html?searchUrlHash=AAAAAQAHam9obnNvbgAAAAAB&resultIndex=8 

The Appeals Commission appealed the decision of the Court of Queens Bench to the Alberta Court of Appeals who upheld the decision of the Court of Queens Bench https://www.canlii.org/en/ab/abca/doc/2011/2011abca345/2011abca345.html?searchUrlHash=AAAAAQAHam9obnNvbgAAAAAB&resultIndex=24

Question is what makes these pathetic people believe that they can make their own rules that contradict and disregard decisions of Alberta’s highest court. One of the reasons why subpoenaing of doctors is necessary is that the system runs entirely on documentary evidence which for the most part is based on false and misleading medical opinions which are then reviewed by lay people with no expertise in medicine. Without any expertise in medicine and without cross examination how then can any Adjudicator determine which doctor or doctors are correct. This is impossible. Whether it is civil law or criminal law, without cross examination, the whole system would fail if documentary evidence was the only method used.

The next question if in fact the Appeals commission does subpoena doctors, who pays their conduct money. The conduct money must be paid out of the accident fund to ensure that all workers are given a fair hearing. The Alberta Rules of Court do not apply as I have explained before as an in person hearing is not a trial, it is a hearing as the rules of civil procedure do not apply in administrative law.

According to the WCA, WCB provides insurance but do not fall under the Insurance Act which means that WCB is the only unregulated business in the province of Alberta who can do as they want as without regulation they have absolute power to do whatever they want. Unfortunately, the Minster in charge of the system is not in charge of anything but collects her extra pay because she is a Minister who is in charge of nothing.

Despite the decision of the SCC in the Martin case, the Alberta WCB still remains one of the few provinces that do not recognize chronic pain. The Government has not enacted regulations to provide PCI ratings for chronic pain, thus denying workers from benefits that are based on chronic pain.

A class action lawsuit in Ontario against WSIB based on misfeasance in public office was settled out of court. The specifics of the class action based on misfeasance in public office was that WSIB were subtracting PCI ratings assessed on pre-existing conditions from a whole person PCI rating resulting in a reduced PCI rating. This is referred to as apportioning. This involved ignoring the thin skull rule of law which means that worker is taken or hired as the employer finds them. The Alberta WCB uses Policy 03-02 Part II Application 1 Question 5 to illegally apportion PCI ratings to reduce a PCI rating resulting in reduced pensions and benefits. Surely, they cannot say this is an honest mistake as any fool knows that the thin skull rule applies in law.

Question is why would the NDP government select and pay three people ( WCB Review Panel)to investigate and make recommendations when they were not qualified. The CIWAA along with long term claim workers would have done this for nothing and in a matter of a few weeks that would have resulted in meaningful changes to the WCA, WCB Policies and WC Regulations.

When I was an Advisor to Justice Friedman, one of my recommendations was to make Appeals Commission decisions totally transparent. My reasoning was that I could track doctors, Case Managers, DRDRB on Canlii simply by inputting their names in the document box and every claim involving these people would come up which is a very valuable tool to determine which doctors were providing contrary medical evidence.which DRDRB members were biased, which Case managers were biased. Questionably if in fact that because of FOIP, as I was told they  could not do this. That being the case then why is it allowed in the courts when researching Canlii, the courts name the worker, the doctors which allows me to check out the doctors as to their medical opinions.I also can if the name of the worker was placed on Canlii, I could contact them if in fact I felt that the Appeals Commission had made an error in law, error on fact, error in jurisdiction etc and explain to a worker how to appeal, request a reconsideration or file for a Judicial Review/Appeal. Being that the names of the Appeals Commissioners can be found on Canlii, I can determine which Appeals Commissioners are biased, are clueless and which are not. The system cannot continue to operate in a vacuum and must meet the public’s expectation of a totally transparent system with nothing to hide.

For example: I can look up Dr. Addington (Psychiatrist) to determine his dossier. Dr. Addington was hired by WCB to conduct a psychiatric evaluation of a worker I represented. From his report specific to the worker I represented and comparing his track record in the courts, I can conclude that he is a good honest doctor. Another doctor who a person can look up is Dr. Louw whose name comes up in Canlii which may interest some people. In fact a case cited as Louw v. Hamelin-Chandler found on Canlii is very interesting. Dr. Louw was a doctor who provided a false and misleading IME on a worker that was contradicted by other doctors. Another doctor that may be of interest is Dr. Darlington who if you enter his name in the document text will provide information. Dr. Plageman can also be found who was one of the defendants who was involved in a lawsuit by the Munros.

While the NDP Government continue to ignore the requests of workers who have long standing claims that have never been resolved even though the evidence suggests that the decisions made by Adjudicators was incorrect, resulting in claims and benefits being illegally denied and some workers committing suicide, having psychiatric problems causing marital and family breakups, tossed onto the garbage pile where they spend the rest of their life. I do not blame the NDP Government as they inherited the problems the former Conservative Government created. To show Albertan’s that the NDP have a conscience, they should honor the Conservative Governments promise to open up long standing claims by complying with Section 157.1 of the WCA regardless of the costs to rehear claims.

Jan 312018
 

By Gerald

Click on the following link:  https://www.appealscommission.ab.ca/Website%20Documents/03.%20Practice%20Guideline%202A-Notice%20to%20Attend%20or%20Notice%20to%20Produce%20Documents_Feb-15-2017%20(20170215).pdf 

This is another good reason why the system does not work when workers request to have witnesses attend such as their own primary care treating doctors or specialists who support the worker and the worker does not have the money to pay for conduct money. It is extremely rare that doctors agree on anything which is complicated by the fact that everything in a workers claim is based on documentary evidence,with much of the documentary evidence provided by either doctors who are not experts or the doctors provide false and misleading documentary medical evidence. Medical Review Panels are not experts but are nothing more than more doctors with opinions that are not accepted by their peers or medical literature. Further to this is decisions made by Appeals Commissioners who themselves have no expertise in medicine determining  which doctor’s opinion they are going to base their decision on. Without the right to cross examine the dissenting doctors in the presence of better qualified doctors who support the worker, the administration of justice obviously results in disrespect.

Questionably is why the Appeals Commission use the Alberta Rules of Court for guidance as to who pays conduct money when the Alberta Rules of Court are in fact Alberta Rules of Civil Procedure. Administrative Law is not based on civil law, it is based on administrative law and subject to the Meredith Principles where workers claims were taken out of the civil justice system and administered under administrative rules that apply only to workers compensation systems. Workers are not plaintiffs, they are claimants who by agreement under an administrative system all costs specific to their claims were to be borne by WCB and taken out of the accident fund.

Oddly enough, if a worker was financially capable of paying conduct money, WCB will pay the conduct money of their Medical Advisors to attend, paid for out of the accident fund. Seems a little one sided when WCB can use the accident fund for their purposes and workers are forced to pay the conduct money out of their own pocket and if they can’t, they are up shit creek without a paddle. This is the fair and great system that exists in this province and condoned by the Government. If the Government would provide unlimited finances and absolute power to the Fair Practice Office who would represent workers at an in person Appeals Commission hearing and also have legal representation if a Judicial Review/Appeal was filed, this would allow a level playing field for workers rather than the shit show they are exposed to now.

 
Jan 222018
 

By Gerald

Click on the following link: https://www.alberta.ca/release.cfm?xID=522899A395324-C302-107C-BCF199961973BE25

While I have nothing against presumptive status for all workers, question is whether it is legal to provide presumptive status to one occupation and not to all other occupations. Unfortunately, under Alberta Human Rights Legislation as is other provincial and federal legislation it is legal to discriminate based on a person’s occupation as a person’s occupation is not within the protected grounds or group characteristics that are protected. In other words if a person or group is not within the protected grounds under provincial legislation or federal legislation, then equality does not apply, however under the charter, section 15.1 of the Charter, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. 

The Alberta Human Rights Act is like any other poorly written legislation. In the introduction, the “Act” states that it is a fundamental principle and a matter of public policy that all persons are equal in: dignity, rights and responsibilities. The “Act” then contradicts itself then by excluding equal protection for every one other than the individuals or groups that fit into the protected categories. Occupation is not included in the protected category. Oddly enough, nor was gender identity, gender expression, or sexual orientation which was added, yet the Government would not add occupation. I did file a human rights complaint after presumptive status was enacted in legislation for firefighters and although the Alberta Human Rights Commission agreed that the legislation resulted in differential treatment, by law they did not have jurisdiction to include occupation in the “Act”. My complaint was dismissed which in all fairness was a good decision. I was advised to file a complaint with the Office of the Ombudsman which I did. They also agreed that the legislation did result in differential treatment and they could not change legislation. It was recommended that I contact the Minister of Justice Jonathon Denis whose office responded but suggested that there was nothing they could do which in reality was that they would not do anything because if they did add occupations to the protected category, the Government and the opposition who had voted in favor of the Magnus “Bill” would look like a bunch of morons 

The introduction of presumptive status for firefighters was first introduced in Canada by  the Manitoba government by copying the introduction of presumptive status for firefighters by their neighbor, Minnesota. Problem with this is, in Canada adjudication in all provinces is supposed to be based on an Inquiry system not an Adversarial system which is used in the U.S. where the burden of proof is on the worker and the employer. In Canada, in an Inquiry system, the burden of proof both for and against is on the “Board” Some how, the system in Canada has gone from an Inquiry system to an Adversarial system and the burden of proof has been illegally placed on the worker.

Firefighters by law, should have never had to prove causation and employers did not have to prove contrary which is the way an Inquiry system works. Because the benefit of doubt has to always go to the worker, all workers have presumptive status when the claim remains in the neutral position.  Because no one knows what causes cancer, all claims would remain in the neutral state. If in fact we knew what causes cancer, we would have come up with a cure by now. Providing presumption status only for fire fighters  for myocardial infarction is another gross injustice to other workers when workers such as office workers are more at risk than a firefighter due to the sedentary nature of their job. The same goes for PTSD which can happen to anyone even when diagnosed with a terminal illness such as cancer. Further to this is in proving causation, adjudication is supposed to be based on a balance of probability and not on medical probability which is far higher than the legal standard. It does not have to be proven that any occupational group has to prove that they are double the general population risk, triple or 20 times the risk. In fact, if epidemiological studies would perform a risk analysis on most occupational groups and compare the risk to the general population, it would be determined that there is a higher risk. For example: workers performing repetitive work over prolonged periods of time have 20 times the risk of cumulative trauma disorders such as carpal tunnel syndrome, tendinitis, pulled ligaments or any other injury to the upper extremities.  As well, these same workers have a much higher risk of vascular disturbances to the upper extremities ( Schedule B Section 8) when blood flow to vital parts of the upper extremities is reduced resulting in abnormal bone formation during the bone remodeling process that is subject to stress fractures that would not affect normal bone. This results in sever medical conditions such as avascular necrosis of the scaphoids (Preisers disease) or avascular necrosis of the lunate (Kienbocks disease) which are recognized by experts as being work related but never accepted by WCB, DRDRB and the Appeals Commission who do not have any medical expertise and wouldn’t know Preiser’s disease from hemorrhoids. Section 24(6) of the WCA deems that “all” workers employed in an industry within the last 12 months are deemed by the regulations to have caused that accident and thus is not discriminatory questioning why the Government provided presumption status only to firefighters and first responders which is discriminatory. Epidemiological studies have also determined that workers in occupations where they are exposed to harmful carcinogens on a daily basis have a much higher risk than firefighters. That being the case then why is the government not enacting presumptive status for workers in these occupations. Would the Government bring in presumptive legislation for firefighters and first responders in the criminal justice system where only firefighters and first responders would be presumed innocent until proven guilty and all other individuals would be considered guilty and have to prove their innocence.

The presumption for firefighters was introduced by Richard Magnus who I knew quite well as he was my Alderman in Calgary. We argued over his introduction of the “Bill” as in my opinion, under an Inquiry system, firefighters did not have to prove causation and furthermore the “Bill” was illegal under the Charter. Richard, not being a lawyer or having any knowledge of the historic agreement specific to an Inquiry system and burden of proof  had no idea what I was talking about and went ahead and sponsored the “Bill” which was enacted by the Conservative Government when Clint Dunford was the Minister in charge of WCB. I also argued with him and he also had no idea what I was talking about. The issue specific to how long a firefighter must work in their occupation before presumptive status begins has gone to the courts in several states as being unconstitutional or discriminatory. A firefighter was diagnosed with cancer after two years of employment and the required time was ten years. The court determined that length of exposure was discrimination ion and overturned the denial of his claim. 

As far as burden of proof goes, workers do not have any powers of investigation, so why would any one put the burden of proof on some one who by law and policy makes it illegal to gather evidence. This is supported by the WCA Section 17(1) that gives WCB “exclusive” jurisdiction to examine, inquire into, hear and determine all matters. Surely, the Government knows that the word exclusive jurisdiction excludes everyone including workers from gathering evidence, yet the Government sits back and do nothing when WCB, DRDRB and the Appeals Commission places the burden of proof on workers.

If in fact any worker whose claim was turned down would take the issue of presumptive legislation to the courts contrary to Section 15.1 of the Charter which provides presumptive status to an identifiable occupational group and not providing presumptive status to all occupational groups according to numerous lawyers, the worker would win.

Jan 102018
 

By Gerald

Click on the following link: https://www.wcb.ab.ca/assets/pdfs/public/policy/Interim_Relief.pdf

Contrary to what WCB suggests as a new policy, interim relief has been directed by the Courts (Patrus) and the Appeals Commission. WCB through legislation also has discretion to provide interim relief while a medical investigation is being conducted. Section 38 (4) of the WCA and have never done so. To leave interim relief up to a Case Manager who is not an expert on law, policies or medicine would be a disaster. What would a Case Manager know about whether a claim had a reasonable chance of success?

What would be the point of going through the appeals process, not be provided interim relief and then having the Appeals Commission or the Courts overturn the decision of the Case Manager which could take at least three or more years and in the meantime during the appeals process a worker is left destitute. In my humble opinion, interim relief has to be made mandatory beginning from the time a claim is filed to the time  worker has went through the appeals process. It is far better to error on the side of a worker than it is to deny interim relief and then have the decision of the Case Manager overturned by the Appeals Commission or the Courts.

Jan 092018
 

By Gerald

Click on the following link: https://globenewswire.com/news-release/2018/01/08/1284967/0/en/WSIB-is-using-the-minimum-wage-to-cut-injured-worker-benefits-Government-must-step-in-to-prevent-disaster.html

Questionable is whether Bill 30 will address this. At present it is the Government who enacted the WCA (Section 63 of the WCA) that allowed WCB to provide an imaginary job with imaginary earnings. The blame cannot be placed on the WCB as they are simply doing what the Government has allowed them to do. Any one who is familiar with the WCA will find that workers are blaming the wrong people as WCB simply follows the WCA based on their interpretation of the “Act” which in many cases is the incorrect interpretation of the “Act” . Even when WCB or the Appeals Commission know that the interpretation of the “Act” is incorrect, they will continue to use their interpretation until the Court on a question of law, makes a correction. For example: WCB knows that the burden of proof is on the “Board” yet force workers to prove their claim. WCB knows that chronic pain is not provided a PCI rating but do not provide a PCI rating for chronic pain in itself. WCB knows that an impairment rating does not equate to a disability rating, yet they continue to use impairment ratings as a direct method of rating an earning loss. unless a worker has the ability and knowledge to represent themselves in court or has the financial ability to hire an experienced lawyer to represent them, WCB and the Appeals Commission will continue to contravene the law.