Dec 142018
 

By Gerald

For people who have been around long enough to see the many  investigative commissions appointed by the Government, no commission has found that it was a good system and there have been numerous  recommendations hoping to improve the system. The problem is that no matter how much lipstick you put on a pig, it will still be a pig.

Dec 142018
 

By Gerald

Click on the following link:

 https://www.thepeterboroughexaminer.com/opinion-story/9081455-peterborough-letters-wsib-caught-up-in-culture-of-denial/ 

Where have we heard this before with a reference to a culture of denial. This was the findings of Justice Friedman. As usual, the problem with the system is causation. No system can operate when the deciding factor is causation as in most cases no one knows why an injury or disease developed other than to provide opinions that will not and have not stood up in the Supreme Court of Canada. The SCC makes a decision and workers compensation systems in Canada ignore the findings of the SCC and carry on as they did before. In Alberta we have a Justice Minister that also ignores the findings of the SCC and allows the Alberta WCB to circumnavigate the law. We have a toothless tiger in charge of WCB and when asked what her responsibilities are by being in charge, there is no answer. The last MLA who was in charge of the WCB, Iris Evans when asked the same question replied that she is not in charge of the WCB, she is responsible only for the WCA which then leaves the question, “who is in charge of WCB”?  

It is about time that a task force be appointed to determine if the system is working. Problem with a question like this is that it is working but only for those workers who suffer an acute injury that after a short healing period, the worker makes a full recovery. The major costs of the system are those 20% of injuries or diseases where the worker never does recover, their claim is terminated and all of these workers apply for Social Services and becomes the responsibility of tax payers. No one has or will ever deny that WCB does in fact deny claims and benefits when a causal relation cannot be determined and the benefit of doubt then goes to employers whose premium are kept artificially low by not having to accept claims and provide benefits. 

I have said it before and I will say it again, the system should be abolished and disability benefits should be paid without causation which is the provided to public servants, many unionized workers and MLA’s themselves who have dual benefits through workers compensation and private disability insurance through most likely Sun Life. When a public servant is injured, suffers any sickness or disease, they immediately receive benefits with out having to fight WCB for 40, 50 or more years. There have been numerous comparisons to the two systems and private insurance is far better than anything that is offered by WCB. It is rare to hear of a worker committing  suicide, attempting suicide or threatening to kill any one who is providing disability insurance privately. When Meredith proposed some sort of disability insurance for workers, there were no private insurers that offered this type of insurance so this was better than nothing and in today’s workers compensation system, nothing is what workers get.

Dec 142018
 

By Gerald

Questionably is why workers are forced into a system that is totally corrupt. Just when a person thinks it could not get worse, it does. It all revolves around causation which is what workers compensation systems thrive on as it employs hundreds or thousands of people, mainly doctors who pretend to know what causes diseases. If these doctors knew what caused any disease, no one would be dying from these diseases. The State of Washington passed legislation to provide presumptive status for workers exposed to nuclear radiation and the U.S. Federal government is suing the State of Washington to overturn the presumptive legislation as the workers employed at the site were workers living in Washington but employed by the Federal Government. This was the headline;

DOJ files suit over Hanford nuclear site presumption bill

The U.S. Department of Justice sued the state of Washington on Monday over a presumption law passed earlier this year that cleared red tape in the workers compensation system for people suffering from cancer and other ailments after working at the 75-year-old Hanford nuclear site.

Dec 122018
 

By Gerald

The following story supports my argument that you cannot provide 
presumptive status to some occupations and not to others. Click on the 
following link: https://www.cbc.ca/news/canada/sick-worker-groundbreaking-case-wsib-benzene-1.4649680


It is obscenely illogical to provide presumptive status to firefighters 
when other occupations have a greater risk than fire fighters. Truth be 
told, there need not be any occupational disease that requires evidence 
based on medical certainty which the Supreme Court has determined is too 
high a standard meaning that no one has to provide epidemiological 
evidence to support causation. Causation in the workers compensation 
system is any contributing factor which consists of a very broad base 
from a trivial cause to a probable cause. It need not be more probable 
than not which is the civil legal standard,not the legal standard in 
workers compensation systems according to the Supreme Court. There are 
no complex cases that are filed with WCB as in all claims the benefit of 
doubt is supposed to go to a worker meaning that if a cause is unknown 
and WCB cannot determine an alternate cause, the claim remains in a 
neutral state where the benefit of doubt goes to a worker. In the past 
and at present, if a cause is unknown, the claim is denied with no one 
questioning if the cause is unknown and WCB cannot provide an alternate 
cause, why is the claim denied as the benefit of doubt is by law 
supposed to go to the worker.

No occupation should be treated differently than any other occupation 
but unfortunately the Alberta Human Rights legislation in the preamble 
it states that all persons are equal in dignity, rights and 
responsibilities and then states in the same paragraph, that these 
rights are only extended to the so named protected classes and if a 
person does not fit in the so named classes, according to the AHRC there 
is no equal rights protection. You would think that instead of enacting 
laws that treat all persons equally rather than naming the classes that 
are protected would be the intelligent way to enact legislation. It 
makes no sense at all to keep adding specific classes rather than to 
simply enact legislation whereby all persons are treated equally.

I did file a human rights complaint when the presumption legislation was 
passed and the complaint was denied because occupations were not a 
protected class which means that the Government can pass laws providing 
differential treatment for any occupation that they feel should be 
provided differential treatment. If they felt that all MLA’s should not 
have to pay provincial taxes, could drink and drive, possess and use 
heroin, crack cocaine etc and no other occupation could do like wise, 
they could do so under the Human Rights Act. I do believe that under the 
Charter, Section 15.1, that presumptive status for any occupation 
according to a large consensus of lawyer would be struck down. Studies 
have shown that other occupations have far more of a risk for certain 
cancers than firefighters and a recent study has determined that 
firefighters risk of cancer is due to a genetic factor which predisposes 
them to cancers and in the U.S. some States are rescinding legislation 
because studies have determined that the only firefighters to get any 
cancer have a genetic link to cancer which predispose some firefighters 
to cancers while other firefighters without the genetic link have no 
more of a risk than any one else. By testing firefighters for this 
genetic link prior to employment, those candidates with the genetic link 
would not be hired thereby reducing or eliminating any risk.

When this bill was presented by Richard Magnus who I knew quite well 
from his days as my Alderman in Calgary, I told him that in Canada 
adjudication is based on an inquiry system which means that all persons, 
whether firefighters or not firefighters have presumptive status simply 
because when there is any doubt on any claim, and if there is no 
evidence to support an alternate cause a claim is considered to be in a 
neutral position, this establishes presumption. I explained to him that 
in the U.S., because adjudication is based on an adversarial model, the 
burden of proof was on workers which made it impossible for any worker 
to prove causation, thus because of their high profile and a feel good 
feeling for elected officials to gain favor with the electorate, 
presumption for firefighters was enacted. Mr. Magnus had no idea of the 
difference between an inquiry system and an adversarial system and was 
under the impression like many of his colleagues that when a worker 
filed a claim, they were the ones bringing forth an action and 
considered to be plaintiffs in the case and had the burden of proof.

Dec 102018
 

By Gerald

According to the historic agreement, adjudication within the workers compensation system is supposed to be based on an inquiry system, not an adversarial system. At some time in the past, this all changed from an inquiry system to an adversarial system. Rather than a worker being a claimant, they are considered to be the person bringing forth an action as a plaintiff. No one including Notley, Gray, Ganley or the former Conservative Government would explain or define what an inquiry system is based on.

I have had over the last several years, had to argue that the burden of proof is on the Board with Case Managers, DRDRB and the Appeals Commission who are adjudicating claims based on civil law which is clearly the incorrect legal standard in workers compensation.  Yesterday, I talked to a Case Manager who in a case I am representing a worker argued that the burden of proof is on a worker, not the Board. I attempted to explain to her how an inquiry system is supposed to work and she said that has has no idea what an inquiry system is and that all her colleagues place the burden of proof on the worker despite the WCA and WCB policy that clearly places the burden of proof on the Board. I have had that same argument  presented to me by a senior member of the Appeals Commission during a heated discussion at an in person hearing, who is a lawyer and oddly enough makes over $175,000.00 a year as a hearing chair. Her argument was quashed at a Judicial Review by a Court of Queens Bench Judge who had to explain this to the Appeals Commission’s and WCB’s legal counsel how an inquiry system works and how it differs from civil law. 

A number of years ago, I had a letter from a former Minister in charge of WCB who told me that WCB rarely if ever performs any investigations involving a claim because it was to time consuming and expensive thus resulting in numerous claims being denied because WCB did not do their due diligence to perform any investigations and when the claim was illegally denied, the blame for not providing the evidence was placed on the worker who they claim has the burden of proof, not WCB. 

Oddly enough, the Appeals Commission when a worker requests to subpoena a witness or witnesses, the Appeals Commission refers to the Alberta Rules of Court which are rules for civil procedure where a plaintiff who brings an action has to pay for the attendance of witnesses which they should. Why should workers have to pay for the attendance of witnesses when WCB can have witnesses subpoenaed and have the witnesses conduct fees paid out of the accident fund. Questionably is why  WCB Medical Advisors who are the worst offenders when knowingly providing false medical evidence do not have to sign an affidavit to swear that the evidence they are submitting is true and when it is proven to be false, they should be charged and imprisoned.Section 151.1(1) does make it illegal for any one to provide false or misleading information to the Board and that would include their own employees. According to Section 152(1) of the WCA a person can be fined up to a maximum of $25,000.00, a further fine of $10,000.00 a day if the offense continues or in lieu of a fine be imprisoned for a period not exceeding 6 months. Problem is that we have a Justice Minister that would not allow charges against any one in the system, thus negating the WCA. What is the point of enacting laws if these laws are not used to punish people for contravening the law. 

While it cannot be disputed that WCB places the burden of proof on workers, the Appeals Commission also places the burden of proof on the worker. This fact is presented in their rules specific to reconsideration where they do in fact undeniably place the burden of proof on a worker. This is proven by the Appeals Commission stating that “with due diligence, the evidence could have been presented at the previous in person hearing. What evidence could be presented when WCB has exclusive jurisdiction to gather the facts and their own policy directs that they perform a thorough investigation to gather the facts. A good example of this is in a case where a Case Manager lied about the employer offering modified work and the employer and worker both presented evidence that there was no offer of modified work. WCB and the Appeals Commission acknowledged that modified work was never offered but refused to pay the worker the loss of earnings he was entitled to and had been directed by the Court of Queens Bench to pay the worker $9000.00 in earning loss. This was refused by the Appeals Commission who should have complied with the Judge, sent the claim back to WCB and direct that this sum be paid. Instead, Wispinski, the now head of the Appeals Commission represented the Appeals Commission which questions her ethics and sense of decency to represent a body who would defraud a worker from what he was entitled to and his entitlement had been determined by a Judge. The second incident I was involved in and still am is specific to concurrent earnings.  The worker at the time of her injury had two sources of income and WCB did not investigate contrary to the WCA and their own policy. and using only the one income to determine an ELP. Once this was brought to their attention, they denied the second concurrent earnings because they believed that the worker had the burden of proof to provide this evidence. Most, if not all workers have no idea what concurrent earnings are and would not have the knowledge to question WCB as to why only their earnings from the accident was used to determine a loss of earnings. Gathering this evidence is the sole responsibility of WCB, not the worker. These are fundamental questions that WCB must ask a worker during the course of their investigation.  

In reviewing the revised WCA, it appears in the preamble that the purpose of the workers compensation system is to provide appropriate compensation to workers and the central focus of the workers compensation system is the health and well being of workers, this is a lie and is proven to be a lie based on my own personal experience in the workers compensation system. The central focus of all workers compensation system is to protect the accident fund to maintain low premiums for employers to encourage or maintain employment. Accepting claims and benefits destroys jobs and the economy as opposed to denying claims and benefits that increases employment and the economic benefits of low premiums. What was considered the “grand bargain”is not and has not been a grand bargain for workers but has been a grand bargain for employers who cannot be sued and have their premiums subsidized by tax payers who pay taxes and these taxes are used to provide income support for disabled workers through social assistance. As well, Alberta Health Care provides medical care and benefits for disabled workers. No one can deny that this is not true. If it was not true, then then why are there so many disabled workers on social assistance. If a person can name one, one is too many and when naming one, some one else could name other disabled workers who are on social assistance. Why is the Government so secretive about this. Perhaps this would be a request submitted to FOIP. Obviously, the Government knows when a person applies for social services what medical condition they have that is considered to be prolonged and severe and whether the injury or disease is work related or not work related..

If in fact, the Fair Practice Office does determine that the Board has the burden of proof in an inquiry system, the only remedy is to re-adjudicate all long standing claims on the correct legal standard and in compliance with Section 157.1 rather than to continue to believe that the Government and the courts should provide deference to the Appeals Commission when they have been adjudicating claims on the wrong legal standard. While it is not surprising that Case Managers and the DRDRB  would not be expected to understand the difference between an adversarial system and an inquiry system, Appeals Commissioners who earn close to two hundred thousand dollars a year should not be pleading that they were making honest mistakes by using the incorrect legal standard when adjudicating claims.

WCB is sending a message to workers who have long standing claims that to have their claim accepted or to receive any benefits, that a worker must commit suicide, threaten to commit suicide, attempt to commit suicide or threaten to kill WCB employees or Appeals Commissioners. Gregory Jacks committed suicide and WCB apologized to his family and provided compensation to his widow. Another fellow set himself on fire and received compensation. Patrick Clayton threatened to kill WCB employees and was sentenced to prison. When he got out, he received compensation for his work related injuries which indicates that had WCB provided him with compensation he was entitled to, he would have not of had to threaten to kill WCB employees and then be sentenced to prison. I have a copy of one of his checks for fifteen thousand dollars presumably for a NELP as WCB did not explain what the fifteen thousand dollars was for with several hundred thousand dollars still coming in for an ELP. Obviously this should indicate to workers that to receive their entitlements, they have to either commit suicide, threaten to commit suicide, attempt to commit suicide or get a shot gun, take hostages and threaten to kill WCB employees. 

Rather than continue beating my head against a wall arguing with Case Managers, DRDRB and the Appeals Commission, I sent the following letter to the Fair Practice Office who now have to explain what an inquiry system is and who has the burden of proof in an inquiry system.

Fair Practices Office

Braithwaite Boyle Building

602 1701 Centre Street NW

Calgary, Alberta

T2E 7Y2

Dec. 3, 2018

This is a question that needs answering. Workers compensation in Canada is based on an inquiry model, not an adversarial model. There is no one who disagrees that workers compensation is based on an inquiry model, yet there is a reluctance by WCB, DRDRB, Appeals Commission or the Alberta Government to explain how an inquiry system works. The question that seems to be evasive is “who has the burden of proof in an inquiry based system”.

The gold standard for adjudicating claims in Canada is found in Dr. Terrence Ison’s book Workers Compensation in Canada 2nd Edition. According to Dr. Ison who was Canada’s foremost expert on workers compensation systems who is now deceased, he states in his book, “The Acts provide for an inquiry system, not an adversarial system. There is, therefore no burden of proof on any one except the Board. In common law litigation, it is normal to place the burden of proof upon the plaintiff and in medical science, the negative is commonly assumed from the absence of positive data. Neither of these approaches is appropriate to a workers compensation system operating in an inquiry model. The worker, the employer and the attending physician are responsible for supplying information to the Board which is within their power to provide. With regard to any other information that may be required, the obligation rests with the Board to make the necessary inquiries. The absence of any evidence on any point leaves the adjudicator in a neutral position that calls for further inquiry. It is not a ground for any particular conclusion. Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternate cause and evidence that the employment was not contributory”

In the workers compensation system in Canada, adjudication by WCB, DRDRB and the Appeals Commission is therefore not based on the correct legal standard as the burden of proof has been placed on the worker as evidenced by numerous decisions of the Appeals Commission. As noted by the SCC adjudication in workers compensation systems is based on a lesser standard than civil standards, which ranges from a trivial contributory factor to a balance of probabilities. If a claim remains in the neutral state, the benefit of doubt is supposed to go to the worker. Many claims submitted to WCB have unknown etiologies which should result in a neutral state but the claim is denied despite no evidence to the contrary. If in fact it cannot be determined whether an injury or disease arose out of and occurred in the course of employment, WCB must provide an alternate cause as the negative cannot be assumed from the absence of positive evidence.

On Judicial Review where I was allowed to represent a worker, Justice Bruce Millar had to explain to the Appeals Commission Legal Counsel and WCB Legal Counsel that in an inquiry based system the burden of proof is on the Board and not on a worker. This decision is not on Canlli but I have the transcript of the action and Justice Millar’s explanation. This question was also asked to the Office of the Ombudsman and the Ombudsman also verified that in an inquiry system the burden of proof is on the Board.

Section 17(1) of the WCA provides exclusive jurisdiction to the Board to examine, inquire into, hear and determine all matters and questions arising under this Act. Read correctly, only the Board has jurisdiction to gather evidence and it would be contrary to the Act for a worker to gather any evidence which thus would prohibit a worker or an employer from having any burden of proof. Section 17(4.1) also provides direction to adjudicators that when a claim remains in a neutral state, the benefit of doubt goes to the worker. Section 20 of the WCA also gives WCB all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act. Questionably then with absolute and exclusive jurisdiction to gather evidence, how then could the burden of proof be put on a worker or an employer.

Adding to this is WCB Policy 02-01 Part I, it states in part, “When WCB is notified of an accident, it initiates inquiries to obtain all relevant evidence and adjudicates the eligibility of the claim based on the weight of that evidence” Interpretation 4 of the same policy then states “if the information received on the required reports is not sufficient to adjudicate the claim, WCB is responsible for gathering additional evidence relevant to the claim”This then is contradicted in WCB policy 01-03 Interpretation I where they state “A worker is not required to prove beyond any reasonable doubt in support of a claim for compensation” This would indicate that the worker is required to bear the burden of proof which in essence is typical of an adversarial system and not an inquiry system where the burden of proof is on the Board.

Going into this further, it is apparent that the “but for” test and “material contribution” test that is used in civil law is being applied in the lesser standard of proof in the workers compensation system. This can be found in WCB policy 02-01 Part II Application 7. Curiously, when reading this policy, WCB places the civil standard on themselves as having the burden of proof, yet when adjudicating a claim, they place the burden of proof on workers. Even in civil law, the burden of proof is shifted from the plaintiff to the defendant if the defendant is more knowledgeable then the plaintiff. Refer to the SCC decision cited as Snell v. Farrell. This case was also based on precedence cited by McGhee v National Coal Board. Clearly, WCB is the knowledgeable party, has exclusive jurisdiction to gather the facts and yet places the burden of proof on workers with no burden of proof on employers questioning what system are adjudicators using, an inquiry system and a lesser standard of proof, an adversarial civil standard where workers filing a claim are considered plaintiffs without any defendants as employers rarely bother to get involved resulting in WCB representing employers as the defendants. This being said, how then would workers have the burden of proof. This is an extremely important question that has to be answered as the Fair Practice Office has a responsibility to ensure the correct legal standard is being used when adjudicating claims.

Dec 102018
 

By Gerald

Click on the following link: 
https://www.thestar.com/news/gta/2018/12/09/wsib-staffers-decry-chaos-caused-by-broken-system-thats-putting-injured-workers-at-risk.html

Sadly  enough, the system in Alberta has been broken for years and 
questions why the system is not simply abolished as it serves no useful purpose other than to create jobs for doctors who evidently have taken over the system and has become a total disaster. Questionably whether any system can work when the medical profession gets involved and the 
whole adjudication process is based on medical opinions as to causation, work restrictions, impairment ratings, compensation, psychological evaluations.etc. Any body, organization or system that is based on doctors opinions are doomed for failure.  Workers lives are turned upside down by doctors, especially WCB doctors who provide opinions that are totally false and any one with any access to real medical experts or reliable internet medical information can provide a better medical opinion than WCB Medical Advisors who clearly are not medical experts. I have yet to come across a complex claim and I have reviewed hundreds or thousands of claims.

Why ask doctors anything when the Supreme court of Canada has determined that in the workers compensation system, claims should be based on common sense and logic rather than waiting for decades to determine a claim on medical certainty which in the workers compensation system is not required. No one has to spend millions of dollars on medical studies when the Supreme Court of Canada has determined that in all workers compensation systems there only needs to be a trivial probability of a work related cause.

A much better system could be provided by removing causation from the system and simply going to a system where workers are provided compensation without the need for doctors opinions as to what caused the injury or disease. Who cares other than doctors whose livelihoods are maintained through medical piss fights with each other with the worker caught in the middle. Rather than having employers fund the system which is a lie as employers do not have the financial capability of funding the system so the Government subsidizes the system through our tax dollars by having taxpayers provide income support through Social Assistance and Alberta Health Care. To deny this, a person would have to deny motherhood. A much better system could be put into place where 
employers and employees share the cost of premiums with the same agreement where a worker cannot sue the employer or other workers, causation is no longer the deciding factor and every one could get on with their lives with doctors having to work for a living rather than to prey on workers and fill the heads of ignorant Case Managers, DRDRB deadheads and worse yet the apathetic deadhead Appeals Commission who have been given absolute power to destroy peoples lives whose decisions cannot be overturned by the Minister in charge of these retards who in reality are in charge of the Minister.

We elect governments to be innovative, not to carry on with a dead horse that has long been dead but every one is attempting to resuscitate a horse that has been dead so long that all of the body cavities are filled with rot and maggots. We have had numerous investigations over the last 40 to 50 years and none of these investigations have found anything good about the system and attempting to fix the system has been a dismal failure.

Dec 032018
 

#WorkersCompIsARight December Week Of Action

Join us for a province-wide week of action from December 10th to the 14th, and take a stand for fairness for injured workers! We’re kicking the week off in Toronto with a rally on Monday December 10 at 11:30am outside the Ministry of Labour.

This year, the conservative government and WSIB have been the Grinch trying to steal workers’ compensation. They’ve teamed up to give employers a $1.5 billion gift, in the form of a massive reduction to their premium rates – that’s the money that’s needed to provide compensation for people who need it. Meanwhile, injured workers are struggling with poverty and homelessness.

Doug Ford’s promise of being “for the little guy” rings hollow in the face of this reality. And as we’ve seen from the government attacks on workers across the board, the “Ontario open for business” slogan really means they want to open workers to exploitation.

Well, we won’t stand for that. We’ve got a province-wide week of action to say “Workers’ Comp Is A Right”, and “injured workers need Real Healthcare!”

See details below for events in Barrie, Hamilton, Niagara, Thunder Bay, Toronto, and Windsor, and stay tuned to our Facebook Event Page for info on actions elsewhere in Ontario as they crop up, and join the one nearest you!

For more information, or to organize your own activity, please contact workerscompisaright@gmail.com.

Barrie
Action December 10 at 10am at the Service Ontario office – 34 Simcoe St
Contact barriedistrictiwg@yahoo.ca for more info

Hamilton
Action Wednesday December 12 at 11am at the WSIB office – Bay & King (outside Jackson Square)
Contact hamiltoninjuredworkers@hdiwg.net for more info

Niagara
Action December 11 at noon at the WSIB office – 301 St. Paul St
Contact niagara.injured.worker.group@gmail.com for more info

Thunder Bay
Rally December 10 at 12:00pm at the WSIB office – 113 Jade Ct
For more info, contact tbiwsg@gmail.com

Toronto
Rally December 10 at 11:30am at the Ministry of Labour – 400 University Ave
For more info, contact workerscompisaright@gmail.com

Windsor
Action December 11 at 4pm at the WSIB office – 2485 Ouellette Ave
Event page: https://www.facebook.com/events/580982822337018/

Together we will win this,

#WorkersCompIsARight

Nov 252018
 

From Injured Workers Online:

Workers’ compensation: morality versus the business case

The experience of being injured at work and claiming workers’ compensation can greatly influence injured workers’ possibilities for rehabilitation and successful return to work. A new study examines why some claims are prolonged, conflicted and frequently associated with confrontational interactions between Ontario workers and others in the compensation system including employers and workplace Safety and Insurance Board (WCB/WSIB) staff. A doctoral thesis  by Dana Howse – Injured Workers’ Moral Engagement in the Compensation System: The Social Production of Problematic Claiming Experience (University of Toronto, Nov. 2017) – examines claiming from the perspective of injured workers in Ontario who have experienced difficult claims.

Her study points to radically different views of our workers’ compensation system. Based on interviews with injured workers, advocates and health care providers, she found that these injured workers experienced and understood the workers’ compensation system in moral terms: they see workers’ compensation as part of our justice system and evaluate experiences in terms of what is just and unjust, fair and unfair. However, the WSIB’s texts and practices reflected a neo-liberal view of the system where the goals are administrative and financial cost efficiency and policies and procedures are created or changed to achieve them. To move forward and  improve circumstances for injured workers with difficult claims, Dr. Howse suggests the WSIB reconsider its practices and the way its understanding of workers’ compensation is seen by injured workers…  [read ONIWG commentary and Plain language summary and full thesis]

  • Presentation Dec. 7, 10 a.m. EST:  Dr Howse will be discussing her study Friday December 7th  – sign in to the live stream at ONIWG’s Facebook 
    (If you don’t see the streaming video when you arrive at the page, wait a few minutes and try refreshing the page)
Nov 112018
 

Additional note from Donna: Check out the background of the Appeals Commission panel. The deck could be stacked – for example, ex case managers, lawyers that just work for Appeals Commission. How could a worker get justice? Many of them were appointed politically years and years ago. Could they be biased?

By Gerald

Click on the following link;
https://globalnews.ca/news/4645307/nb-workers-compensation-rates/

In New Brunswick, they give absolute power to the Appeals Commission and
when the Appeals Commission are doing their due diligence, the
Government and employers want to legislate changes to take away their
power. New Brunswick  has the highest rate of overturning WCB decisions
as opposed to the Alberta Appeals Commission who have the lowest rate of
overturning WCB decisions and is why New Brunswick employers pay more
than double than employers in Alberta, thus supporting Justice Friedman
that the Alberta appeals process is seriously flawed resulting in a
culture of denial.

If employers want their premiums reduced, the answer is very simple.
Introduce safe work practices so that when workers go to work in perfect
health, they should return home in perfect health. If not, then instead
of fining employers put them in jail, not give some Mickey Mouse fine. I
can assure any one if employers were incarcerated for any work injuries,
there would be very few accidents and premiums would be reduced.
Encouraging employers to create unsafe work environments by not coming
down on them severely create jobs for WCB personnel which is much like
our justice system, the more crime that occurs, the more jobs that are
created and maintained. Eliminate crime and there would be thousands of
unemployed lawyers, judges,police, etc.

Nov 042018
 

By Gerald

There is no denying that the burden of proof in the workers compensation
system is entirely on the “Board” but our Justice Minister like her
predecessors does not want to admit that the adjudication by Case
Managers, DRDRB and the Appeals Commission have been and continuing to
use the wrong legal standard by using civil law or tort law in
adjudicating claims. This was the decision of Justice Bruce Millar who
determined that workers compensation systems in Canada are by law
required to adjudicate claims based on an Inquiry model, not an
Adversarial model which is the the standard used in civil law. Justice
Millar’s decision should have sent a message to WCB and the Appeals
Commission, and set a precedent resulting in all long standing claims
being reheard.

In Justice Millar’s decision, he directed that the Appeals Commission
contact the employer to obtain facts that WCB had failed to investigate
and had led to having to file a Judicial Review. The Appeals Commission
refused to comply and denied the claim for the second time, forcing us
to file for another Judicial Review which was heard by Justice Yamauchi.
Justice Yamauchi should  have upheld the decision of Justice Millar
based on the legal principles of res judicata and issue estoppel as
another Judge cannot by law hear the same case. Questionably is why
Justice Yamauchi did not do what is required in cases that have been
determined already. Notably is that Justice Yamauchi was one of the
Judges who were under review and found by the Alberta Appeals Court to
be lacking in judgement in a sexual assault case, thereby questioning
his decision that led to us  losing a case that we had already won.
Click on the following link:
https://www.cbc.ca/news/canada/calgary/alberta-judges-sex-assault-trials-myths-1.3765959.

Oddly enough is that Justice Millar’s decision was not posted on Canlli
with the most logical reason that his decision would have been a damning
condemnation of the appeals process. I suspect that WCB and the Appeals
Commission requested through the Justice Minister’s office that Justice
Millar’s decision not be posted on Canlii. I have the transcripts of the
action we filed and Justice Millar’s decision that went against the
Appeals Commission and WCB. What other reason would there be for not
posting on Canlii.

The corruption surrounding WCB and the Appeals Commission is aided and
abetted by the Alberta Government through not allowing the public to
read decisions that are extremely important to cover up the abuse of
power in a public office.

For clarification as to who has the burden of proof in workers
compensation systems in Canada,I am enclosing Dr. Terence Ison’s
explanation. Dr Ison before his death was a law professor who
specialized in workers compensation law and was recognized as being
Canada’s leading expert in workers compensation.  Click on the following
link and go to page 814 for clarification.

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.ca/&httpsredir=1&article=1620&context=ohljbut
.