Here’s the article that recently appeared in Toronto Life on an injured worker who became homeless after turning 65.
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.
Click on the following link:
This is the same guy that came from BC whose track record in BC was to
assist in denying legitimate claims. Click on the following link:
Questionably is where they get these people from. Grace Thostenson who I
knew when I was a member of IBEW Local 348 was recently appointed the
Chair of the WCB Board of Directors who hired him apparently did not
check into his background before making a choice to hire him. He comes
with a lot of baggage and this is a guy that is supposed to care about
workers and their families just as Guy Kerr cared about workers and
their families. Donald Duck would have been a better choice as the last
person any one would or should hire is some one who started off as a
Case Manager and has never had a real job other than WCB. How much is
WCB paying him to wreak havoc in the lives of workers resulting in
family breakups, suicides and homicides. Perhaps the Government should
make public how much Kerr received as a golden handshake for assisting
in destroying many workers and their families lives.
Based upon my own research and reading articles like this, it is apparent that the workers compensation system is broken in all States and Provinces. Being that the system in Alberta is beyond repair perhaps it is about time that the Government appoint another Review Panel that is far more knowledgeable of how the system works rather than appoint former bureaucrats that know very little about how the system works and how to fix it. To suggest that the system in Alberta is not corrupt indicates the total ignorance of people like Gray, Ganley and Notley when it can be proven that WCB Legal Services have lied to the courts, lied to the Human Rights Commission. I shall commence in my next e-mail to explain how WCB has deliberately defrauded workers by citing WCAT decisions and Court decisions supporting me.
On Nov. 8 and 9th of 2016 we attended an in person hearing adjudicated by R. Fong who was the Hearing Chair, D. Jossa and J. McKenna who were Commissioners. On July 6, 2017, they presented a partial decision but as of this time ( 15 months later) we are still waiting for a full decision. Oddly enough, workers compensation according to the Supreme court of Canada, one of the fundamental principles of workers compensation is that compensation is paid to injured workers quickly, yet one of the claims goes back to 1973 and the other one to 1988. Also it is odd that the WCA provides statute of limitations for doctors, workers and employers but there is no statute of limitations on decisions made by a Case Manager, DRDRB or the Appeals Commission. A worker or employer could wait for decades to receive a decision from a Case Manager, DRDRB and the Appeals Commission which questions the SCC as to their belief that compensation is paid quickly.
In the claim at hand, the problem the Appeals Commission are having is attempting to explain why WCB and themselves were equating directly an impairment rating to a disability rating or loss of earnings without incriminating WCB, DRDRB and themselves. WCB, DRDRB and the Appeals Commission have known for decades that impairment ratings do not directly equate to a disability or loss of earnings, yet this was what all three of these bodies were doing despite the Alberta Court of Appeals decision (the Penny decision) that the WCA is specific to determining a disability or loss of earnings, not an impairment. This is explained at the beginning of the WCA Section 1(1)(u) which states in part; “pension” means a periodic payment to a worker in respect of whom a permanent disability has been assessed”. It does not state that a pension means a periodic payment to a worker in respect of whom a permanent clinical impairment has been assessed. This was not a mistake, rather it is criminal fraud and a Calgary City Police Commercial Crimes Unit made this decision. The Crown refused to lay charges more than likely at the direction of the Justice Minister who was of the opinion that this would most likely destroy the Alberta WCB if criminal charges were laid.
For convenience of understanding, I have attached in part a page from the AMA Guides to better understand the reference that is used in determining impairment. I attended a recent IME performed by Dr. Rocheleau (Physiatrist) on behalf of WCB. He was dumbfounded that a PCI rating for erectile dysfunction could result in up to a 15% PCI rating which WCB illegally equates to a disability rating and doing this results in a life time pension in the hundreds of thousands of dollars to workers despite a worker not having any loss of earnings. This is what would be like winning the lottery.
When referencing Table 1-2 only a moron would provide a life time pension to a worker who has no loss of earnings but has difficulty getting an erection, orgasm, ejaculation, lubrication, combing their hair, urinating, defecating to name a few difficulties in Table 1-2 which has got nothing to do with work or loss of earnings.
Not wanting to admit they had made a mistake and have to re-adjudicate thousands of claims, WCB, DRDRB and the Appeals Commission in collusion with the WCB Board of Directors decided to continue defrauding workers and employers and went to a dual awards system separating impairment with disability. Rather than use Section 56 of the WCA as they did prior to Jan 1, 1995 by illegally using impairment ratings and equating the impairment ratings to disability ratings, they separated impairment ratings and disability ratings with impairment ratings now coming under Section 69 of the WCA.
I have no idea when the Appeals Commission will address this issue of if they will continue to insist that an impairment, disability and loss of earnings can be used interchangeably despite the Alberta Court of Appeals decision that using impairment ratings a s a direct method of rating disability is not in compliance with the WCA and we will then have to take this to a Judicial Review based on an error in law. Obviously on Judicial Review, the Court of Queens Bench have no jurisdiction to over ride the decision of the Alberta Court of Appeals in the Penny case and any decision by the C of QB will be in our favor. Unfortunately, I cannot represent the worker due to the Legal Professions Act and the worker who has a grade 8 education will have to represent himself.
If the the Government provided workers though the proposed Fair Practices Office the right to represent workers, workers would not be forced to represent themselves and especially when most injured or disabled workers are blue collar workers who have no idea how to represent themselves before the courts or have any idea what the issues are and how these issues fit into the WCA, WCB policies and workers compensation regulations.
Section 69 of the WCA which is specific to impairment makes the award discretionary. Who gave WCB the right to change the historic agreement which was based on compensation for loss of earnings, not for impairments. Are employers aware that they are paying out millions of dollars to workers who do not have any loss of earnings but have difficulty getting erections, urinating, defecating, reaching an orgasm, combing their hair, brushing their teeth. I may get myself into trouble by suggesting that any award for an impairment should be stopped and employers be reimbursed unless they agreed to WCB providing millions of dollars in life time pension and lump sum payments for an impairment.
Upon review of WCB policy, there is nothing in policy that suggests that impairment ratings can or should be used s a direct method of rating a disability. At first I believed that the problem evolved from the WCB BoD who according to the WCA enact policies but further review resulted in the fact that WCB policy specific to the use of impairment ratings indicated that impairment ratings were to be used as a starting point as suggested by Mr. Carr, WCB legal counsel in the Penny case and agreed to by the Alberta Court of Appeal in assessing a disability. The AMA Guides stress this as being a very crucial point by stating that impairment ratings are a pre-cursor to a disability, not a final assessment of a disability. This is explained under WCB Policy 04-04 Part II Application 5 Question 1 which states in part and read correctly specifies that the first step is to assess an impairment and the second step is to assume whether there is an earning loss. If there is no assumed earning loss a worker receives nothing other than medical care if necessary. If there is an assumed loss of earnings, the assumed loss of earnings is based on each individuals unique circumstances which considers their age, education and prior work experience. The determination of a disability is usually determined by a certified member of the Fellow of the American Academy of Disability Evaluating Physicians who are trained experts in determining disability.
Policies & Information
All rights reserved
1. What is a Permanent Disability Award, and who is eligible for it?
A permanent disability award is a pension which includes
compensation for permanent clinical impairment “and”
assumed permanent loss of earning capacity resulting from
the clinical impairment.
The pension is based on a medical determination of the
extent of the compensable clinical impairment. WCB uses
the WCB-approved rating schedule (see Appendix D) as a
guide to determine the extent to which the compensable
clinical impairment impairs or may impair earning capacity,
and expresses that impairment as a percentage of disability.
WCB policy 04-04 Part II Application 2 Question 6 states in part;
6. How does WCB calculate the Non-Economic Loss Payment?
As the Non-Economic Loss Payment is not intended to
compensate the worker for lost earnings, the payment base
is the same for all workers, regardless of earnings. The
payment is paid as a lump sum, and is based on the degree
of permanent clinical impairment resulting from the
Any one with any intelligence would ask, how could a PCI rating equate to a disability and loss of earnings one second before midnight of Dec. 31, 1994 and then one second after midnight on Jan 1, 1995, a PCI rating equates to NELP which is not intended to compensate the worker for loss earnings. Little wonder no one understands the “Act”, WCB policy and WCB regulations when WCB themselves have no idea of how to interpret their own policies.
Using impairment ratings as a direct method of rating disability results in further complications to the WCA specifically Section 42 of the WCA which presumes total disability with the loss of both feet at or above the ankle. Using logic, if A is equal to B, then B has to be equal to A. Using impairment and disability in place of A and B, if impairment is equal to disability, then disability must be equal to impairment. That being the case,, if a worker is totally disabled, then they have a total impairment.If you have a total impairment, then you are dead as death occurs when all bodily functions cease. A worker with a loss of both feet at or above the ankle is obviously not dead, so it is obvious that they are not totally disabled. Loss of both feet at or above the ankle is assessed 25% PCI rating for each lower extremity equaling a 50% PCI rating. When multiplied by 90% of net, a worker would receive a 50% permanent partial disability and yet according to the section 42 of the WCA the worker is totally disabled which means the worker has a 100% PPD, not a 50% PPD.
This is precisely what happened in the Yukon when the worker (Robbie King) suffered an injury to the head and was determined by WCB as being totally disabled and instead of paying compensation for permanent total disability, the “Board” paid him 70% PPD based on a 70% PCI. The Yukon SCC overturned the decision of the “Board” to pay him a 70% PPD and directed they pay him a total disability rather than a 70% disability pension.
With all of this evidence supporting the fact that a PCI rating does not equate to a disability rating, then why is the Government not directing that WCB comply with the WCA and legal precedence? It also would be fair to question why WCB Medical Services and WCB Legal Services are complicit in defrauding workers who clearly know that you cannot equate an impairment to a disability. WCB medical Services should have all their doctors licenses terminated and as well, WCB Legal Services should have all their lawyers licenses terminated.
There is no other body or individual that are allowed to make a mistake. If any body or individual makes a mistake, we are told that ignorance of the law is not a defense, yet WCB. DRDRB ad the Appeals Commission are allowed by the Government to make a mistake and not be held accountable. If I or any one else, gets drunk and kill or injure some one, we are not allowed to plead that we made a mistake. When workers are given the benefit of doubt in all cases, it is impossible to make a mistake as a person always errors on the side of the individual who is given the benefit of doubt.
Case Managers, DRDRB and the Appeals Commission are supposed to be experts according to the Courts. Experts don’t make mistakes and if a person who is supposed to be an expert makes a mistake, they clearly are not experts. In order to adjudicate a claim, a Case manger has to be an expert in law and medicine, the same for the DRDRB and the Appeals Commission.There are no Case Managers, DRDRB or Appeals Commissioners who are experts in law and medicine and it is far too easy for these people to deny a claim or benefits knowing that workers do not have the knowledge and financial capability to hire a person who is knowledgeable in law and medicine. In the Penny case, the Alberta Court of Appeals stated” Presumably the Appeals Commission have expertise in medicine, because most of the questions before it have a large medical component, and in other fields related to the assessment and valuation of claims”
The problem with the whole system is that no one including WCB, DRDRB or the Appeals Commission have any expertise in medicine and as well as law, the largest component in all claims involves the field of medicine. Because Case Managers, DRDRB and the Appeals Commission have no expertise in medicine, they in turn consult Medical Advisors who are not experts in medicine with many of them not even practicing medicine for decades and still provide medical opinions that date back to their early days of medicine and have since been corrected in medical journals which these doctors have never read.
The courts are not presided over by mechanics, painters, plumbers, brick layers so why would lay people with no expertise in law or medicine be allowed to preside over claims within the workers compensation system. None of this makes any sense at all but the Government continues to place band aids on fixing a system that is terminally ill.
The correct way of fixing the system is to consult with employers and workers and renegotiate a sick system and get back to the original system where workers receive medical care and lifetime earning loss pensions if necessary. If permanently disabled workers cannot return to their former job, train them to perform some meaningful job not simply provide assistance in how to write a resume, make phone calls etc. which is not cost effective at all as being able to write a resume or use proper telephone techniques will not result in a disabled worker getting a job over some one who is not disabled, has the experience and employers could care less whether some one can write up a better resume than another person. Studies in Ontario confirms that their approach in this manner was a waste of time and money.
Click on the following links; https://www.thestar.com/news/g
Little doubt that this is going to cost the Ontario WSIB billions of dollars to rehear long standing claims and then provide compensation to the thousands of workers whose claims and benefits were illegally denied. The ripple effect of this also will affect workers in Alberta and as well as other provincial governments whose claims and benefits were denied based on pre-existing conditions. Of note is that the issue is specific to the NEL (non economic loss) in Ontario and a NELP (non economic loss payment) in Alberta which is a separate discretionary award based on impairment ratings.
While the problem and subsequent blame involving apportionment is being blamed on Dr. Chris Brigham who is a friend of mine (Dr. Brigham was the Senior Editing Chair of the AMA Guides 6th Edition) who was basically doing what the “Guides” direct. Apportionment is used when there is a pre-existing condition and a compensable condition when the pre-existing condition is subtracted from the compensable condition to reach a whole person impairment. Being that workers compensation is based on a medicolegal scenario, by law using the thin skull rule, workers should not have their impairments apportioned as opposed to in the field of medicine, there must be apportionment.
The former Conservative Government after the review by Doerkson and Friedman reports enacted Section 157 .1 of the WCA to hear long standing claims which due to lobbying by the Alberta Chamber of Commerce suggesting that the decisions made by the long standing Review Panels would not change appreciably which I beg to differ. If all long standing claims were reheard by competent Review Panel members such as I, over 90% of the claims and benefits that were denied would be overturned. According to the Alberta Chamber of Commerce, the cost to review long outstanding claims would be approximately 4 million dollars which I also disagree with. The cost would most likely result in hundreds of millions dollars or billions of dollars going to workers who have been cheated from receiving benefits by WCB and the Appeals Commission and the latest news from Ontario would certain support my estimate of the cost. Unfortunately in Alberta we have no lawyers, worker advocates who are experts in worker compensation law and medicine so we have to wait for lawyers in other provinces to establish precedence.Lawyers and worker advocates in Alberta take advantage of desperate workers who use much needed money for food, lodging and care of workers children and make these workers believe that they are experts in law and medicine, take their money and then leave the worker and their families destitute. The blame for all of this is the provincial governments who aid and abet criminal fraud against the most vulnerable people, workers who put their lives on the line every day of the year trying to earn an honest dollar. These are the real heroes in our society, not just first responders who get all of the limelight.
I believe that it is deplorable what has happened to this couple who were only attempting to help farm workers. What they accomplished is admirable and as long as farm worker’s injuries are short term acute injuries that result in total recovery, workers compensation is a good system for all workers, however if any worker’s injuries or disease is determined to have an unknown cause or the injury does not result in total recovery, farm workers will realize just like every other worker
that the system does not work and that there is a culture of denial. Farm workers like every other worker will be faced with poverty, marital breakdowns, suicide and homicidal ideations when legitimate claims are turned down or farm workers are deemed to be able to perform some imaginary job and paid in imaginary earnings and then have their claim terminated.