Jan 312019
 

By Gerald

Both the Senate and House of Representatives in Hawaii are now 
considering identical bills that would require workers compensation 
payers to reimburse patients who are prescribed medical marijuana under 
state law permitting them to use cannabis.,,Nine of the 25 state 
senators are backing S.B. 1523, introduced Thursday, the same day Rep. 
Dee Morikawa, D-Lihue, unveiled H.B. 1524.,,Both measures follow the 
state’s study on issues surrounding medical marijuana, legalized in 
Hawaii in 2000, according to identical text accompanying both bills, 
which would add marijuana to the language in the state’s workers comp 
law pertaining to prescriptions for injured workers.,,Both bills would 
subject payers to a fee schedule and require an injured worker to obtain 
a physician’s certification that he or she is eligible for enrollment in 
the state’s program governing medical marijuana, and that cannabis “may 
be reasonable and necessary medical treatment only where an authorized 
health care provider certifies that the potential benefits of the 
medical use… would likely outweigh the health risks.”,,Included in the 
language in both bills are provisions against paying for drug 
“paraphernalia” and growing and cultivating of one’s own medical 
cannabis, which must come from a licensed producer. Both the Senate and House of Representatives in Hawaii are now considering identical bills 
that would require workers compensation payers to reimburse patients who are prescribed medical marijuana under state law permitting them to use cannabis.,,Nine of the 25 state senators are backing S.B. 1523, 
introduced Thursday, the same day Rep. Dee Morikawa, D-Lihue, unveiled 
H.B. 1524.,,Both measures follow the state’s study on issues surrounding 
medical marijuana, legalized in Hawaii in 2000, according to identical 
text accompanying both bills, which would add marijuana to the language 
in the state’s workers comp law pertaining to prescriptions for injured 
workers.,,Both bills would subject payers to a fee schedule and require 
an injured worker to obtain a physician’s certification that he or she 
is eligible for enrollment in the state’s program governing medical 
marijuana, and that cannabis “may be reasonable and necessary medical 
treatment only where an authorized health care provider certifies that 
the potential benefits of the medical use… would likely outweigh the 
health risks.”,,Included in the language in both bills are provisions 
against paying for drug “paraphernalia” and growing and cultivating of 
one’s own medical cannabis, which must come from a licensed producer.>

Question is why the Alberta Government does not enact legislation 
forcing WCB to pay for medical marijuana. WCB has a duty of care to have 
their doctors support a worker’s doctor if they prescribe medical 
marijuana. Questionably if a worker commits suicide because they are 
forced by WCB to continue using opioids that are paid for by WCB rather 
than to pay for a proven and scientifically supported pain killer would 
the family of the deceased worker be able to sue WCB.

Questionably is why some worker’s medical marijuana is paid for by WCB 
and other worker’s medical marijuana is not paid for which can be 
verified by going to Canlii and reading Appeals Commission decisions. 
Treating disabled workers differently is a human rights violation as you 
cannot pay for medical marijuana for one or more workers worker and not 
then pay for medical marijuana for others. That is discrimination.

Jan 302019
 

By Gerald

I have been diligently working on two long standing claims, one ten years old and the other 46 years old that resulted in denied claims and benefits that now have been reviewed and benefits that should have been paid 46 years ago are now being paid on the most minimal method WCB can think of. Most if not all long standing claims if reviewed by competent persons like myself would be overturned because of major, most likely blatant denials and not simple mistakes by all three levels of appeals and the only thing standing in the way was the Klein government and now the Notley government  who for whatever illogical reason are or were convinced that the same decision made previously by any of the three levels of incompetence would not change. I beg to differ as the devil is in the details and the proof is that any one with any expertise in workers compensation would have very little trouble in having most if not all the past denied claims and benefit decisions over turned, just as I have began to do.  

First and foremost is that workers by law do not have to appeal a claim thus eliminating any statute of limitations as there is no statute of limitations based on new evidence. Those workers who have filed appeals have placed themselves into a quagmire of uncertainties by appealing a decision of a Case Manager to the DRDRB who more than likely will uphold the decision of the Case Manager even when the evidence does not support a denial. Appealing a decision of the DRDRB to the Appeals Commission is one of the most foolish things I have ever done and in hindsight, I would advise no one to appeal anything because as long as the claim remains at the Customer Service level and new evidence becomes available, there is a better chance of having the new evidence used to have the initial denial over turned. 

I have put a great deal of thought into this and I must apologize for the lengthy e-mail but once I get going, everything that is wrong with the system comes to the fore and in my opinion there is nothing good about the system. I was recently requested to assist a worker whose claim goes back 28 years and I have never seen a claim so convoluted, so disgusting in my entire life. The worker in question came to Canada as an immigrant chasing the Canadian dream. A well educated man, former member of the Polish Navy and emigrated via Germany. He worked very hard when he arrived and very shortly become an apprentice electrician and several months into the job, he injured his back in a work related incident. He was accepted on workers compensation and endured two subsequent back surgeries that resulted in failed back surgery leaving him a broken man with his hopes and ambitions of fulfilling the Canadian dream totally out of the question. Still convinced that even after failed back surgery, he requested WCB pay for upgrading his education which they refused.He paid his own university expenses (University of New Brunswick) on borrowed money and received his degree. All the jobs he had were interrupted by problems with his failed back surgery. WCB treated this young ambitious man with contempt, disrespect, lying to him as to what he was entitled to, cheating him of what he was entitled to and made his life a living hell which he is still enduring.

Not being able to express himself fluently in the English language he was insulted by WCB personnel and also by the Appeals Commission. Not knowing the WCB system he was forced to pay for WCB Advocates like Thomas Lukaszuk who took his retainer fee and left him high and dry. This was followed by our illustrious Justice Minister, Ganley who took his money posing as an expert in workers compensation law. He went to the Courts on Judicial Review and to the Alberta Court of Appeal but unfortunately there are very few Judges who are experts in administrative law that is specific to workers compensation and the advice he was given by the Court was to give up. Like many other workers he heard of me and requested my assistance. I was utterly flabbergasted by him referring to an Appeals Commission Decision 2018-0311 https://www.canlii.org/en/ab/abwcac/doc/2018/2018canlii67014/2018canlii67014.html?autocompleteStr=2018-0311&autocompletePos=1

Reading though this should be a convincing argument that the worst thing that a worker can do is to file appeals. The claim is so convoluted that the Appeals Commission have no idea who has jurisdiction, them, the DRDRB or Customer Services. Despite my expertise, I also have no idea who has jurisdiction to hear new evidence, appeal to who and the worker himself is confused by appealing or requesting a reconsideration for claims he made that were accepted. As well he was diagnosed with drop foot, bilateral metatarsalgia, left ankle equinus, bilateral functional hallux limitus  which are all compensable conditions, high blood pressure, major depressive disorder as a result of his disability and unable to work and support his family and did not receive any compensation for any of these conditions. Being that WCB uses PCI ratings as a direct method of rating a disability which was found to be illegal by the Alberta Court of Queens Bench and upheld by the Alberta Court of Appeals, he received a PCI rating of 20% which they did not convert to a disability rating to determine a loss of  earnings. He received no PCI or PPD (loss of earnings) for any of his lower extremity diagnosed conditions and as well for his psychiatric assessment diagnosed as major depressive disorder which a psychiatrist attributed to his treatment by WCB. Again, no PCI ratng for the major depressive disorder caused by WCB. Unfortunately for him, all of this was denied and not knowing the system and how WCB and the Appeals Commission use manipulative methods for much of the illegal methods used by WCB, many of his appeals and requests for reconsideration were subject to the statute of limitations and the worker cannot proceed despite the fact that he was entitled to receive an  increased earning loss based on total disability. 

Because he kept appealing and requesting reconsiderations he was subject to the statute of limitations whereas if he simply gathered more evidence and not appealed, his claim would have never have gone through the appeals process. 

The worst case scenario is appealing a claim to the Appeals Commission and having the claim turned down based on falsified documentary evidence provided by WCB Medical Consultants who despite a worker requests to subpoena the doctors,the Appeals Commission refuse, thus allowing doctors of having no responsibility in defending their opinions. The Appeals Commission have rules of procedure that makes it impossible to present new evidence and is why it is far better to not appeal and when new evidence becomes available a worker presents the new evidence to WCB who have very little reasons to deny any new evidence. 

It is clear to me that the Government in 1988 believed another level of appeal would be beneficial to workers which clearly is a mistake as prior to 1988, an appeal could be made to the WCB BoD and they were far better at reviewing claims than the Appeals Commission. The WCB BoD were comprised of equal representation of workers, employers and the general public as opposed to the Appeals Commission who are made up with most likely political appointments with no worker representation at all which leads to a reasonable apprehension of bias when adjudicating claims. Further to this when there is a Judicial Review, both the Appeals Commission and WCB join forces using money out of the accident fund to fight a worker who is forced to represent themselves leading to procedural unfairness or in the words of Justice Maclean, not a level playing field. Fortunately for some workers, the NDP Government did rescind legislation that would allow the Appeals Commission to not being able to review or adjudicate claims prior to Nov. 1988 but neglect to enact legislation as to who has jurisdiction to reconsider claims prior to this date.

The present Government brought in the Fair Practices Office which based on one workers experience is as useless as the Appeals Commission as some workers are now finding out. According to a letter sent to a particular worker who e-mailed me the letter, the Fair Practice Office is simply another name for the Office of the Appeals Advisor but now under the Minister who is as dense as they are. The worker in question believed that the Fair Practice Office would assist him and in a letter he received which he sent me a copy, they refused to assist him and recommended that he contact some one else to assist him. This is the copy of the letter that he sent to me from the worker that he received from the FPO.

I am writing in response to the Worker’s Authorization form you recently submitted to the Worker Appeals
Branch of the Fair Practices Office (FPO).

The Worker Appeals Advisor Branch was formally the Office of the Appeals Advisor (OAA) department at the
WCB. The department transitioned to the FPO on December 1,2018.

I reviewed the numerous correspondence sent to you over the years from the Office of the Appeals Advisor
which confirmed that the office was unable to provide any assistance to you regarding ongoing appeal issues.
The most recent letter was sent by Janet Welch, Manager of the OAA, on June 1-, 2018. In that letter, it was
confirmed that we were once again unable to provide any assistance to you.

I have reviewed your claim file and your most recent correspondence to the WCB and to the Appeals
Commission and I am in agreement that we are unable to assist you with any current appeal matters.
However, you are able to obtain alternate representation or to continue representing yourself.

Perhaps Ms. Notley and Ms. Gray could explain why the FPO have refused to assist him and then recommending that he represent himself or pay thousands of dollars to people like Ganley and Lukaszuk for a  retainer to have some one else represent him. According to Section 3(1)(e) of the Fair Practices Office Regulation it says per verbatim; The Commissioner shall establish procedures respecting the following: “the assistance of workers, workers dependants,or employers in navigating the workers compensation system, including procedures respecting the direction of workers, workers dependants or employers to an appropriate resource, person or organization for assistance”.  

What does navigating the workers compensation system mean and what assistance do they give as evidently they did in fact refuse to offer any assistance to the worker. The worker compensation system also includes Judicial Reviews which can be very costly. Rather than have workers left with having to represent themselves through the system, why not simply get rid of the FPO and bring in legislation allowing workers to utilize the accident fund to hire some one to represent them throughout the process including legal representation in Judicial Reviews, thus creating a level playing field if in fact a worker is able to find a lawyer who is an expert on workers compensation systems which at this time, there are no lawyers in Alberta who are experts in workers compensation. 

Workers through being forced into a system that does not work not only cannot sue the employer, they cannot sue WCB, DRDRB, FPO, Appeals Commission, Medical Panels, they cannot subpoena witnesses and have lost all their rights under the Charter simply because they were forced by Governments to give up their rights to in exchange for the insecurity of having claims and benefits accepted, burden of proof placed on them illegally and forced onto Social Assistance. On top of all of this workers were forced into an administrative system rather than have their day in court, go through a fair trial and adjudicated by a real judge rather than the morons who have never been trained in administrative law that is specific to WCB systems, deciding medical issues without any training in medicine. This is the historic agreement that workers were forced into by Governments who through legislation provided absolute power to adjudicators without any checks or balances provided by Government. A letter from Gray to a worker explained that the Government has no control over WCB or the Appeals Commission. That being the case, who does have control. If I may, the people who do have control over WCB, DRDRB, BoD and the Appeals Commission is the Government who have the power to enact legislation that would force WCB, DRDRB,BoD and the Appeals Commission to comply with the legislation but choose not to protect workers from the corruptible and blatant abuse of power that the Government has given them. For example: no one knows who has the burden of proof, for and against. Under the Charter, can the Appeals Commission deny the attendance of witnesses despite all the evidence in all workers claims being based on documentary hearsay and without the right to have witnesses subpoenaed and cross examined, the Appeals Commission make their decisions on documentary hearsay. Should workers not be entitled to be represented by legal counsel and have this paid out of the accident fund. In the workers compensation system specific to causation, if the cause is unknown, why is the benefit of doubt not given to the worker. Legislation could remedy all the inhumane decisions made by all three levels of adjudication but even when the SCC determines that chronic non discernible pain must be compensated for, the Alberta Government does not enforce the decisions of the SCC. WCB and the Appeals Commission deny paying for medical marijuana as the archaic legislation in the WCA allows WCB discretion to pay for medical marijuana which legislation could force WCB to pay for any medical assistance that is prescribed by the workers doctor. Numerous states in the U.S. are enacting legislation to force WCB insurance companies to pay for medical marijuana which has been scientifically proven to assist chronic pain rather than opiates which are addictive, have serious side effects and is a major contributing factor in suicides.

Administrative law is not the same from one body to the other and how a decision is made has no real consequences in any other administrative functions unlike workers compensation decisions that can and does result in suicides and homicides because of grossly illogical decisions made by incompetent or blatant denial of claims or benefits. It is crucial that no mistakes be made to prevent unnecessary deaths. There should never be any mistakes especially when a claim is in doubt which in many cases it is, the benefit of doubt must go to the worker. There are numerous administrative bodies that work quite well. There are administrative bodies that are appointed to determine how many chickens that a poultry producer can send to market, how much milk to send to market, labor board etc. A farmer does not commit suicide or kill his family because the egg marketing board cut back on the amount of eggs the farmer can send to market. Another good example is human rights which is an administrative system based on an adversarial principle but a complainant need not pay to have some one represent them as once a complaint has been accepted, Legal Counsel for the Director takes over the complaint and the complainant receives legal representation at no cost.  

Appeals could be drastically reduced or eliminated entirely if at the Customer Service level, witnesses such as doctors were subpoenaed and cross examined under oath. Cross examination of witnesses in all legal systems is a corner stone of the justice system but for some grossly illogical reason most if not all claims go on for years because of in most cases doctors knowingly or ignorantly providing false medical evidence that becomes a part of the documentary file that cannot be cross examined as you cannot cross examine a piece of paper. An example that I experienced first hand is when I filed a claim on behalf of a worker for post polio syndrome caused by trauma. A WCB Medical Advisor (Dr. Grieve) falsely claimed that post polio syndrome was not caused by trauma. I contacted two of the world’s leading experts in post polio syndrome (Dr. Richard Bruno and Dr. Lauro Halstead) and both verified that post polio syndrome can be caused by trauma, either through a physical or mental cause. The Appeals Commission questioned the qualifications of the two worlds leading experts and found the opinion of an unknown and incompetent General Practitioner more compelling and accepted the opinion of the WCB Medical Advisor by the name of Dr. Grieve who incidentally also provided false evidence on behalf of WCB and the Appeals Commission who denied a claim based on her evidence. This claim went to Judicial Review cited as Boyd v. Alberta (Workers Compensation Board) where the Court of Queens Bench overturned the decision of the Appeals Commission, the DRDRB and the Case Manager determining that Dr. Grieve did not provide a valid or compelling medical opinion which made the schmucks that denied the claim look like fools. In the 46 year old claim that I was involved with, WCB in the meantime, had arranged for a Physiatrist  who had experience in PPS and he supported trauma as being he cause of the worker’s PPS thus forcing WCB to provide benefits ($92,000.00) that obviously will be appealed as the amount of money is far less than what he is entitled to as he received more money from Social Assistance in 46 years than what he is getting from WCB that in reality is only $2000.00 a year. As usual there was no interest added or COLA increases.   

Unfortunately for all workers, even though an injury may have occurred 40 years or more ago, WCB according to policy do not have to provide a loss of earnings going back to when the injury occurred. Policy 04-04 Part II Application 5 Question 7  allows WCB to select a half way point between when the injury first occurred and the date of the examination that confirmed the injury. For example in the case of a worker I represented it was noted by the surgeon performing back surgery that the worker did not have a claw foot at that time but when examined several months later, he noted the worker had developed a claw foot as a result of his back injury that severed his sciatic nerve which never did grow back. It took over 40 years for WCB to acknowledge the claim for a claw foot and then they took the half way point which was 1974 and the date of the examination by a doctor in 20015 that confirmed that the claw foot developed in 1974 but the worker received half of what he was entitled to. To suggest that this is not corruption would suggest that Clifford Olson was a good honorable man even though he raped and killed numerous children. Obviously Gray and Notley are aware that the system is broken and has been for decades and still persist in ignoring the obvious. 

Another example of outright lying was when a Case Manager lied about an employer offering modified work when both the employer and the worker denied that modified work was offered. Despite the evidence from both the worker and the employer, both the DRDRB and the Appeals Commission accepted the documentary report of the Case Manager who blatantly lied to receive her bonus after terminating his claim when she wrote in her report that the employer offered modified work and the worker refused the offer resulting in the DRDRB and the Appeals Commission denying his claim. Despite my request to subpoena the Case Manager and the employer, my request was denied by the Appeals Commission and documentary evidence provided by the Case Manager which cannot be cross examined was used to deny the claim. I have reason to believe that the decision to deny subpoenaing the Case Manager and the employer was done deliberately by the Appeals Commission to ensure that the DRDRB and the Appeals Commission were not made to look like fools. These are but two of the many instances where I have requested subpoenaing of witnesses and been denied because under cross examination any witness will eventually fold especially when their evidence provided by documentation becomes subject to cross examination. I have had the Appeals Commission question the qualifications of world recognized medical experts supporting me in other situations and then denying the claim based on local doctors who provided falsified documentary evidence that cannot be cross examined. Although we have what is referred to as an Inquiry based system in Canada, the appeals process does not use this model as the appeals process is conducted on an adversarial model but adjudicated on a documentary basis leading to a culture of denial. In the U.S. adjudication is based on a adversarial model but adjudication is based on having the litigants (worker and employer) along with witnesses, generally doctors, appear in court, heard by an ALJ, (Administrative Law Judge) not some ignorant Case Manager, DRDRB or an Appeals Commissioner. An ALJ who has extensive training in workers compensation law listens to the evidence and makes a decision based on the evidence that is provided and cross examined by lawyers on both sides. Because of the expertise of worker’s lawyers versus the expertise of employers lawyers, it is rare that a worker’s lawyer ever loses. Worker’s lawyers because of their expertise and track record of winning represent workers on a contingency basis with many of them earning very lucrative earnings. 

Despite the WCA in Alberta giving Case Managers and the DRDRB the same powers as the Court of Queens Bench, they can in all claims, conduct an in person hearing, subpoena witnesses, hear the evidence under cross examination which they argue they do not have the power to do that. My argument is that if they have the same powers as a Judge, they do have the power to conduct an in person hearing, subpoena witnesses and cross examine the witnesses under oath which if done, would save millions of dollars in added costs by reducing or eliminating the hundreds or thousands of claims going to the DRDRB and the Appeals Commission on documentary evidence that cannot be cross examined. 

Researching the people involved in the WCB system, they all have a a common link based on their curriculum vitae. In the case cited as Boyd v. Alberta Workers Compensation Board, the Appeals Commission Legal Counsel was Dale Wispinski who was arguing against Mr. Boyd who is now the Chief Appeals Commissioner. In my opinion this would be a reasonable apprehension of bias when the Chief Appeals Commissioner is a former opponent of a worker.  The recently appointed Chair of the WCB BoD who was supposed to represent workers when she served as a member of the WCB BoD assisted in enacting Policy 04-04 Part II Application 5 Question 7  that allows WCB to pay only half of what a worker is entitled to. When looking at the Appeals Commissioner’s CV they all share a common thread, that being former members of WCB (New President of WCB is a a former WCB executive) and as you go down the list of Appeals Commissioner’s all or most are former Government employees, lawyers, managers, and employers with no blue collar workers selected by the Government to serve as Appeals Commissioners. The only person who would be considered to be a genuine blue collar worker is Stephan Dussault who was selected by the Government on May 8, 2018 and when looking on Canlii he has been involved in only 4 decisions and supported the worker in 3 of the four decisions. Questionably when reviewing the fourth decision he was involved in which is obviously in error as you cannot use the Alberta Guides in conjunction with the AMA Guides. The reason being is that impairment ratings taken from the AMA Guides are based on difficulty performing simple basic activities of daily living as opposed to the Alberta Guides that assess impairment ratings based on how an impairment rating may impact the workers life outside of the workplace which includes personal and social activities resulting in different reference points. On top of that, WCB by law cannot use the AMA Guides because the doctors who provided the impairment ratings are American doctors who are not licensed to practice the healing arts in Alberta, thus negating any impairment ratings provided by American doctors. Please read the WCA that makes it illegal to use foreign doctors assessment of impairment rating. Along with this, the AMA Guides do not use ROM in determining impairment and began using DRE (Diagnosed Related Estimates) in the 5th Edition and carried over to the 6th Edition. ROM assessment were found to be inaccurate as range of motion assessment and found to be subjective (under the control of the patient) which led to false assessments when a patient was malingering.  A person does not have to be a rocket scientist to be an Appeals Commissioner as blue collar workers with a junior high school education could adjudicate claims and make the same mistakes as the people selected. 

Questionably is why there is only one blue collar worker on the Appeals Commission when there are more blue collar workers injured or killed on a yearly basis. The overall makeup of the Appeals Commission are white collar workers who have more than likely have never done a heavy manual job in their life. Generally in law when being judged, you have the right to be judged by your peers, not people who have no understanding of what it is like to be forced to live in poverty , work hard to make a living in many cases in inclement weather as opposed to desk jockeys that have no idea what it is to perform blue collar work. Obviously the Government has this idea that blue collar workers are not intelligent enough to adjudicate claims and based on my experience any dummy could adjudicate claims as there is nothing difficult about studying the WCA, WCB policy or WCB regulations. When people are given jobs and allowed to make numerous mistakes and not beheld accountable, you could appoint Mickey Mouse and Donald Duck, feed them bird seed and not have to pay the excessive wages to the Appeals Commission.  

The worker in question along with hundreds or thousands of other workers would benefit from having his long standing claim reheard by competent, knowledgeable people like myself rather than the scum bags that are adjudicating claims at present. While I have continuously stated that the whole system is corrupt which it is and can be proven beyond a reasonable doubt. When a worker files a claim, a Case Manager will usually deny the claim, knowing that a large percentage of workers will not appeal. If they do appeal to the DRDRB, the DRDRB will deliberately deny a claim knowing that a large number of workers will not appeal to the Appeals Commission. The Appeals Commission will deliberately deny a claim knowing that most workers do not have the financial capability to hire a lawyer to go to Judicial Review and despite the fact that I am considered an expert, I cannot represent a worker in the court because the Government has enacted the Legal Professions Act to stop me from representing workers in court even though I was legally entitled to represent workers before Adjudicators who had the same powers as the Court of Queens Bench which is grossly illogical. If I had the expertise to represent workers in the system, then on Judicial Review, I should have the right to represent workers in a private Chambers setting before a Judge who has less power than the Appeals Commission as a Judge cannot overturn the decision of the Appeals Commission, by law all he can do is to send the claim back to the same body who denied the claim and they have the legal right to deny the claim again sending it back to the same body who denied the claim which is a violation of the Rules of Natural Justice. The same body cannot judge their own case but in the sick system, the Rules of Natural Justice are kicked to the curb. Any  worker who files for a Judicial Review without an expert to represent them is a damn fool and are made to look like a fool by WCB and Appeals Commission Legal Counsel who can lie to a Judge and have lied to a Judge simply because most Judges do not have a clue how the system works, are unfamiliar with the WCA, WCB policies and WCB regulations. 

Workers are not advised by Case Mangers what thy are entitled to despite workers being described by WCB as being clients, instead they are treated with contempt, rude and unacceptable behavior when they question their claim. Many workers are totally ignorant as to what they are entitled to such as personal care allowances, house keeping allowances, home maintenance allowances, interim relief allowances, PCI ratings due to every imaginable medical condition that range from sleep disorders, erectile difficulties, dry mouth, constipation, high blood pressure, liver disorders, stomach disorders, difficulty urinating, difficulty defecating, obesity, gait, chronic pain, sensory deficits, loss of muscle strength, any side effects of prescription medications, etc. which would include anything that makes it difficult to perform simple basic activities of daily living or the impact an impairment would have on activities outside the workplace such as riding a bike, dancing, playing ball, soccer, golf which are all social or personal activities that a worker may have difficulty with.  

I have no idea why the Government provided regulations giving WCB the right to not having to pay interest on claims that were illegally or blatantly denied and then after years of fighting for acceptance of the claim and benefits,there is no interest on the monies that WCB pays out. According to the B.C Supreme Court in a class action Judicial Review cited as Johnson v. Workers Compensation Board, Madam Gray determined that WCB has to pay interest from the  effective policy date and also retroactively. She provided a common sense explanation. The class action became totally convoluted when WCB and WCAT appealed the decision to the B.C. Court of Appeal. The B.C Court of Appeal determined that she had made an error in law and determined that she did not have jurisdiction on the retroactive issue and directed she rule on the WCB BoD new policy providing interest only if it could be proven that the decision to deny was blatant. On a rehearing, it was determined that the WCB BoD have by legislation the right to do anything they wanted as long as it was not patently unreasonable. The interesting part of the Johnson case was that the argument that was presented as being the reason for not paying interest was to protect the accident fund which is what I and many others have claimed was the primary reason for the way WCB adjudicates claims and not to ensure that  workers do not become a charge on family, friends and society which was supposed to be the primary purpose of the system. The whole system had evolved from what was intended by Meredith to nothing more than protecting an employer from litigation and protecting the accident fund which questions why the NDP bothered to put in the preamble of the WCA what is pure and simple bullshit by stating; “whereas the purpose of the workers compensation system is to provide appropriate compensation to workers who suffer workplace-related injuries and illnesses, whereas the central focus of the workers compensation system is the health and well-being of workers. This sounds good in theory but in practice the whole purpose of the system is to protect employers form litigation and to protect the accident fund to keep premiums lower than other provinces to entice employers to stay in a location or have other employers in other provinces re-locate. Why would Government pass legislation empowering WCB to avoid paying interest on a debt owed to workers unless they are complicit in defrauding workers. That being the case, no one should have to pay interest on any outstanding debts to protect their savings accounts. There is very little doubt that claims are blatantly denied, knowing that if at some time in the future if they are forced to accept a claim or benefits, they do not have to pay interest on the accrued benefits which in essence encourages the denial of claims and benefits. Workers cannot sue WCB for making a mistake, they cannot collect interest on monies owed leaving workers who have lost their homes, broken marriages, children growing up in poverty and the Government sits back and does nothing. Little wonder workers turn to violence when the Government fails to protect them from a body like WCB who in many peoples minds are nothing more than organized crime or racketeering.

Prior to Jan 1, 1995, WCB used PCI ratings as a direct method of rating a disability which was found by the Court of Queens Bench and the Alberta Court of Appeal to be illegal which it always was illegal but the morons with high paying jobs never realized that there was no correlation between an impairment and a disability which WCB defines as a loss of earnings which resulted in workers receiving life time pensions when they received an impairment rating when they did not have a loss of earnings. Using impairment ratings a s a direct method of rating a disability also provides inadequate pensions for those workers who may be totally disabled from working at any gainful employment and receive an inadequate pension based on an impairment rating that has nothing to do with the ability to work or to determine a loss of earnings from pre-injury to post-injury. Workers or more likely their representatives who clued into this fact began filing claims for every imaginable impairment rating to increase their life time pensions despite the fact they may never had a loss of earnings. The high paid morons at WCB finally decided that after the Alberta courts determined that impairment ratings used as a direct method of rating impairment was illegal and separated the impairment rating from an earning loss by now using impairment ratings for a NELP and an earning loss as an ELP. 

Jan 232019
 

By Gerald

Unfortunately for workers in Alberta the WCA (Section 80(1) allows WCB to deny any payment for necessary medical treatment that has been determined to be a necessity by medical experts. The blame for this repressive attitude lies entirely with the Government who refuse to peruse the WCA to delete oppressive powers that have been provided by the Government leaving workers at the mercy of unqualified WCB Medical Consultants who do not have a clue what they are doing which is followed by case managers who do not have a clue what they are doing, DRDRB who don’t have a clue and the Appeals commission who also don’t have a clue what they re doing. Prompt and necessary medical care is required to eliminate or reduce the medical complications of a work injury to prevent workers from becoming totally disabled or god forbid dying because certain medical procedures were denied. The whole system is a total disaster and has been for decades with no improvement seen even after reviews by Doerkson, Friedman and the latest by Norrie, Carpenter et al who probably meant well but dd not have a clue how to improve the system. 

Our courts in Alberta would most likely refer to Section 80(1) of the WCA and comply with the WCA rather than uphold the principles of the right to appropriate medical care under the Charter based on security of the person. 

Jan 222019
 

By Gerald

Gray (Minister of Labour)

Hoffman (Minister of Health)

Sabir (Minister of Community and Social Services

As a tax payer and  stake holder in workers compensation in Alberta, I 
question why Alberta Health Services and Social Services are providing 
services to workers for work related compensable injuries or diseases 
that have been accepted by WCB as being work related but WCB are not 
providing any health benefits or earning losses for disabled workers. As 
Ministers who are in charge of these services, you are responsible to 
the tax payers of Alberta to ensure that what we pay in taxes is spent 
responsibly for programs such as health care and affordable housing to 
ensure that there are no homeless people, better access to health care 
etc. rather than squander our tax money in assisting WCB to defraud tax 
payers which include workers and employers. This is not hearsay as I can 
publicly name these people as these people have graciously provided 
their claim files to me. If you are familiar with the Meredith 
Principles, the whole idea of workers compensation was to provide 
benefits to workers so they would not become a charge on family, friends 
and society. That being so, why is the Minister in charge of WCB dumping 
these people unto Alberta Health Services and Social Services and why is 
the Minister in charge of Alberta Health Services and the Minister in 
charge of Social Services accepting disabled workers on tax payer funded 
services. Why should tax payers (workers and employers) be burdened with increasing health care costs, long waiting lists for MRI examinations 
and providing social assistance to disabled workers whose claims have 
been accepted but workers compensation not paying for these services 
such as personal care allowances, house keeping allowances, home 
maintenance allowances and earning replacements. This being the case, 
why not simply abolish the whole system, eliminate premiums for 
employers and have workers simply apply for services from Alberta Health 
Services and Social Assistance as that is what is happening now. The 
Government performs audits on every thing else but fails to perform any 
audits as to how many disabled workers are on Social Services and 
medical care by Alberta Health Services.

I do realize that the Conservative Government who ruled this province 
for 44 years did nothing to address this problem and you did inherit a 
total mess but the role of Governments is to correct the mess,not to 
perpetuate the mess.I commend you on attempting to fix the mess left by 
the former Conservative Government but doing things half assed is not 
the solution. Anything worth doing is worth doing right. Workers are the 
back bone of our society as without workers our economy would crash, so 
why is it that workers in Alberta are treated with contempt and inhumane 
treatment by a body such as WCB when the whole intent was or is to treat 
workers with compassion, fairness and respect and not dump them onto a 
scrap heap for tax payers to look after.

Jan 152019
 

By Gerald

Click on the following link:
https://www.therecord.com/news-story/9123231-rubber-workers-should-be-allowed-to-sue-miners-advocate-says/

Just because the WCA protects employers from civil litigation, there is 
nothing in the “Act” that protects WCB from civil litigation. 
Questionably is why the burden of proof is placed on workers when the 
burden of proof is and always has been on the “Board”.  Not only is the 
burden of proof on the “Board” to prove causation, they also have the 
burden of proof to provide evidence of an alternate cause. If not, the 
claim remains in a neutral state and the benefit of doubt goes to the 
worker.

Determining causation according to the SCC does not depend on medical 
certainty as this is too high a standard and all that is needed is to 
determine that the work environment was a contributing factor, even a 
trivial contributing factor. Workers compensation systems are 
prehistoric remedies that a hundred years ago may have had some 
significance but in today’s world, there are better systems that 
guarantee acceptance of claims without spending decades fighting for 
compensation when a mandatory system that does not depend on causation could be brought in which would more than likely result in getting rid of a lot of deadwood at WCB and forcing doctors to get real jobs rather than providing medical opinions that are based on nothing but their 
opinions.

I have in the last several years assisted two workers, one whose claim 
goes back to 1973 and another to 2009, both long standing claims which 
are now under investigation by WCB due to obvious errors by the WCB, 
DRDRB and the Appeals Commission. I suspect that the decisions were 
deliberate but I cannot prove malice or deliberate denial of the claims, 
therefore I have no choice but to call them errors. As well a Judicial 
Review is coming up on Feb. 20, 2019 specifically on how impairment 
ratings have been illegally used as a direct method of rating a 
disability. On top of this I have the Fair Practice Office attempting to 
determine who has the burden of proof and who has the burden of proof of 
an alternate cause which is how the inquiry system is supposed to operate.

The writer also hit the nail on the head when it is a proven fact that 
workers whose claims and benefits have been illegally denied are being 
supported by taxpayers through our health care plan and social 
services. Of course no government wants to admit that this is the way to 
keep premiums low to benefit the economy.

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.