Oct 172019
 

Source: http://rankandfile.ca/occupy-ford-no-more-workplace-deaths/

By Anna Bianca Roach (@annabiancaroach)

Today, Oct. 17, at 14:45, a group of  40 activists gathered in front of Ontario Premier Ford’s office in Etobicoke. By the time they had arrived, ten people had already entered Ford’s office to occupy it. They were there to demand that the government take responsibility for the five deaths at Fiera Foods, one of North America’s most important food suppliers. 

In Early October Enrico Miranda, a 57-year-old who was crushed by machinery while working for Fiera Foods. Less than a year ago, another worker was killed when he was pinned between a tractor trailer and the loading dock at Upper Crust, one of a group of companies owned by Fiera Foods. In 2016, Amina Diaby, was killed when a conveyor belt caught a piece of her clothing and she became entangled in an unguarded machine. 
“We’re here today because we’re outraged and we’re in grief. There have been five temp agency workers killed at Fiera Foods, and two have died on the job under Doug Ford’s watch,” Pam Frache told RankandFile.ca. The action was organized by Workers’ Action Centre, Jane Finch Action Against Poverty and the Ontario Federation of Labour with the support of many community and labour groups. 

On the day of Miranda’s death, other workers received no breaks, and work continued on as usual. When community and labour groups held a vigil for Miranda outside Fiera Foods, management cancelled shifts, after an outcry Fiera Foods was forced to pay workers for those shifts.

Cuts kill workers 

The protestors at the occupation highlighted the inaction of Ford’s Conservative government, which has been avoiding the media for the last four weeks. Advocates for decent work have noted that Ford passed legislation removing the equal pay for equal work protections in the Employment Standards Act, which had incentivized employers to move away from using temp agencies. Temp agency workers have less rights, protections and power in the workplace and that is why Fiera Foods hires 70 percent of its workers using temp agencies.  

“We’re stuck in a system where employers like Fiera Foods aren’t held responsible for workers who die in their workplaces. And that’s what this action is about today,” says Fred Hahn, the President for CUPE Ontario. 
When workers hired through temp agencies are injured or killed on the job, it is the temp agency which is held responsible and see their WSIB premiums increase. But since temp agencies are fluid, closing up shop and reopening under a new name, there is little accountability. The reality is, temp agencies are a mechanism used by employers like Fiera Foods to avoid taking any responsibility and to avoid paying higher WSIB premiums when workers are killed or injured in their workplace. Temp agencies are a convenient way to offload risk, allowing employers to get away with not  paying WSIB premiums or not ensuring safety in their workplace. 

“As it stands right now, workers are often treated as disposable. And we know temp agency workers are far more likely to die on the job,” said Frache. 

Advocates in front of Premier Ford’s office highlighted that the mechanisms to ensure worker safety already exists, and would be easy to implement. Section 83(4) of the Workplace Safety and Insurance Act, would make companies using temp agencies financially responsible under WSIB for workplace deaths and injuries. It was was passed in December 2017 but has yet to be enacted. 

“All that was needed was a regulation. That regulation has been drafted, and so far the premier has refused to enact it,” said Rabbi Shalom Schachter of the Interfaith Social Assistance Reform Coalition  “This was a very easy step for them to take.” 

Occupying Ford’s office

At the time of the action, Ford was absent from his office. Ten activists arrived at 2:30pm and entered the office, beginning an indefinite occupation. Staff locked the doors to Ford’s office and called law enforcement almost immediately. Half an hour after the beginning of the protest, police arrived. Nobody except for law enforcement has entered or exited the building since. 

“[Temp agency workers] are low-income, often racialized, migrant workers. One death is too many,” Simran Dhunna, a Fight for $15 and Fairness organizers, told the crowd before leading chants. “All Doug Ford has to do is come out here, sign [section 83(4) of the WSIA], and implement it.”

While Ford’s Conservative government delays enacting life-saving legislation, it has announced today that it will be giving its ministers a 14 percent salary hike. 

This news comes as a slap in the face to people everywhere who have been protesting cuts that continue forcing low income people, people of colour, and migrants like the temp agency workers who died working for Fiera Foods, into increased precarity.

Deena Ladd, an organizer with the Workers’ Action Centre and one of the occupiers, phoning into the press conference from inside the now locked office said, “Doug Ford says he’s for the people, but that’s bullshit!”

The occupation is still on-going, follow @rankandfileca for live updates, if you are in the GTA consider stopping by to show support, 823 Albion Road, Etobicoke. 

Sep 282019
 

Here is a major Star article on the most recent Fiera Foods fatality.  This article shows the importance not just of this specific case, but also the immediate and powerful call by OFL for criminal charges. 

There is also a disturbing pattern to the fatalities:  two workers were killed by vehicles and two were killed while cleaning machines. The fifth death was a worker whose clothing got tangled up in machinery. All of these are classic preventable incidents. They seem to point towards a lack of effective workplace planning, practices, and culture. All of this made worse by the extensive use of vulnerable temporary workers.

Death of 5th temp worker at industrial bakery chain prompts calls for criminal probe

Sep 282019
 

By Gerald

Over the course of my 30 years involving workers compensation specific to the “Act”, WCB Policies, WCB Regulations, Federal Human Rights Commission, Provincial  Human Rights Commission Services Canada (CPP disability), Civil litigation, Family Law, Criminal Law, Charter, Judicial Reviews, one of the biggest problems within the workers compensation system is translation of the WCA and WCB Policies.

Most work related injuries involve pain. Most workers recover from their injuries and pain is no longer a factor, however for many workers pain does not go away and becomes chronic without any discernible organic reason. Non discernible chronic pain is compensable which is confusing for Case Managers, DRDRB and the Appeals Commission who are not doctors or lawyers specializing in workers compensation and are thus totally unaware that the Supreme Court of Canada determined that chronic pain must be recognized and compensation be provided as it is for any other physical or mental injury.

WCB Policy 03-01 Part II Application 7 is a two part policy specific to chronic pain and chronic pain syndrome which at first blush seems to provide only medical treatment for chronic pain which is obviously illegal but provides compensation for chronic pain syndrome which would then include compensation (medical treatment, loss of earnings and vocational rehabilitation). Many workers are under the false impression that if they want full compensation, they must be diagnosed with chronic pain syndrome to receive full compensation which is not true as chronic pain in itself is totally compensable and supported by the SCC specific to the Martin/Laseur case based on Section 15.1 of the Charter. In Alberta discrimination is under the jurisdiction of the Alberta Human Rights Commission and a complaint can be filed against WCB under the protected category of “disability” and the area of discrimination would be “services”

According to decisions made by the Appeals Commission when translating Policy 03-01 Part II Application 7, the Appeals Commission most likely because of inexperience and ignorance which is a common trait have not considered that the SCC has determined that chronic pain is “totally” compensable, not just providing medical treatment. WCB and the Appeals Commission incorrectly assume that entitlement of a worker diagnosed with chronic pain consists of medical treatment only without any compensation of an earning loss or vocational rehabilitation which is not in compliance with Section 15.1 of the Charter or Alberta Human Rights Act. A study by Noonan and Wagner determined that Alberta was one of the provinces that had not complied with legal precedence (SCC) and have continued to provide only medical treatment for chronic pain but no compensation for an earning loss or vocational rehabilitation which is illegal. The question is “why has the Appeals Commission not addressed the issue of non compliance as a quasi-judicial body to ensure that all workers are treated equally” leaving workers with no  alternative but to file a complaint with the AHRC who have the authority and jurisdiction to hear the complaint. WCB and the Appeals Commission incorrectly believe that because Section 6 (a) of the WCA provides the WCB BoD to determine policy which if interpreted correctly, policy must comply with the “Act”, the Charter and Human Rights legislation.

The Alberta Government was aware that WCB did not provide full compensation for chronic pain other than medical treatment and along with WCB, DRDRB and the Appeals Commission covered this up rather than enacting chronic pain regulations as was done by the Nova Scotia Government who in order to comply with the Supreme Court of Canada decision specific to chronic pain in the Martin/Laseur case enacted their chronic pain regulations which provided full compensation for chronic pain and not simply medical treatment as was and is the only part of a full compensation package provided by the Alberta WCB which workers are entitled to. The importance of receiving a PCI rating for chronic pain  which WCB does not provide is that without a PCI rating a worker is not entitled to a disability pension prior to Jan, 1, 1995 as WCB illegally has equated a PCI rating to a disability rating and after Jan 1, 1995, without a PCI rating a worker is not eligible for a NELP.

Of course chronic pain is only one of the many human rights complaints that WCB is guilty of but workers do not understand that at any time they have been treated differently from some one else and can prove it on a prima facie basis, they can file a human rights complaint which at present under a new Director and Commissioner is being taken more seriously than before under the old regime.

Sep 172019
 

By Gerald

Click on the following link: https://www.thestar.com/news/canada/2019/09/04/ontario-injured-worker-advocates-take-discrimination-concerns-to-united-nations.html

Like everything that is wrong with workers compensation systems, it’s the Government who could enact legislation to stop deeming. Deeming is allowed according to the WCA and allows workers compensation boards to comply with the law. Why in a democracy should workers have to go outside Canada to attain justice.

Questionably is why workers forced into workers compensation systems are
treated differently than workers outside of the system when it pertains
to determining disability or loss of earnings. In a case cited as
Villani v Canada (Attorney General)
https://www.canlii.org/en/ca/fca/doc/2001/2001fca248/2001fca248.html?searchUrlHash=AAAAAQAHdmlsbGFuaQAAAAAB&resultIndex=1
the Federal Court of Appeal relied on a real world scenario rather than
an imaginary world as used by WCB specific to deeming. WCB by statute
provided by Governments can and does use deeming to determine an earning loss by using imaginary jobs as a reference to deny an earning loss
resulting in most workers applying for AISH and CPP disability benefits.

The Government could rescind this but have chosen not to resulting in
workers having to bring their cases to the United Nations which makes us
look like a third world country rather than a democratic country that
abuses workers.

Aug 202019
 

By Gerald

My further comments regarding the following news article (in italics):

Workers’ Compensation Board

The province’s WCB board of directors has been reduced from 10 to seven members, which the province says will save as much as $56,000 in spending.

“The reduced numbers will help to streamline the work done by the WCB board of directors, providing opportunity for more effective and efficient decision-making,” said the province in a release.

The new chair is Erna Ference, who replaces Grace Thostenson. The province says she has a background in workplace health and safety, the agricultural industry and fiscal management.

While the board boasts smaller numbers, the province says there will still be the same proportion of employer, worker and public representatives.

Workers compensation is an ancient relic from the past and serves no useful purpose in protecting workers. Employers are provided protection from civil litigation but they pay dearly into a system that does not work at all for workers as witnessed by workers when they are injured or suffer an occupational disease. The only thing WCB does is cause marital breakdowns, suicides, homicides, family poverty which the Government seems to be quite content with.

A cost saving of $56,00.00 is drop in the bucket and will do nothing to streamline the system as the culture of denial is so deeply entrenched into the system that the only way of saving money for employers is to get rid of it and replace it with modern day disability insurance where premiums are shared by employers and workers. This could be achieved very easily saving millions of dollars a year for employers while still protecting employers from civil action and getting rid of the horrendous task of proving causation which is next to impossible regardless of who has the burden of proof. Does it really matter whether a person breaks a leg at home or at work and may not be able to work again until they recover. 

Another option is to retain WCB as a disability insurance company exclusively for workers and employers but change WCB so that they provide unconditional insurance without the impossible task of some one whether it be the worker or the “Board” proving causation. Who really cares!

In my humble opinion it is grossly illogical to pay two disability premiums when one would suffice. I pay for one comprehensive home insurance policy and do not pay home replacement costs, one for the roof and one for the remaining structure. I do not pay collision insurance for the front part of my car and another collision insurance for the back part of the car. I do not pay life insurance for death caused by injuries or disease to the upper part of my body and separate life insurance for injuries or diseases to the lower part of my body.  

For those of you who do not know anything about dual disability insurance that public servants and WCB employees receive, it works like this. When a worker with dual disability insurance is injured, suffers any medical condition, they file a claim simultaneously with WCB and the private insurer. The private insurer responds immediately and a worker starts receiving short term disability benefits as opposed to WCB who have to decide whether the accident or medical condition arose out of and occurred in the course of employment. This could take decades. If the private insurer’s Medical Consultants determine that it is a work related injury or disease, they continue to pay disability benefits but have the worker sign documents which if WCB accepts the claim, any money a worker receives goes back to the private insurer. It shouldn’t take a rocket scientist to figure out which disability insurance is better, WCB who offer conditional insurance or a private disability carrier who provide unconditional insurance.

When considering how much money in salary and benefits are paid to WCB Case Managers and upper level management, DRDRB members, Appeals Commissioners, WCB Legal Counsel, WCB Medical Advisors, support staff, office leasing, furniture etc. it would most likely result in more money paid out for these expenditures than workers receive in disability benefits.

Why should taxpayers pay for dual disability insurance for public servants if WCB provides such great insurance for worker protection. If in fact WCB was totally abolished, no one would miss it at all. A much better plan would be to make disability insurance mandatory on a shared cost between workers and employers with legislation that workers could not sue an employer or a fellow employee in the event of an accident. Disability insurance could be provided by a major insurance company like Sun Life that already provides major corporations like Telus, Government employees and as well as WCB systems across Canada with disability insurance. Sun Life disability benefits are not contingent on proving causation and would kick in immediately for as long as a disability lasts unlike WCB disability insurance which can take decades to receive if at all. I am assisting on four claims, one is 46 years old, another is 28 years old, another is 11 years old and five years old. All are legitimate claims that involved reduced benefits or no benefits at all. With no money paid out by WCB for work related accidents, it is tax payers who are supporting these workers through Social Services and CPP disability payments. In all of the four claims the workers were being supported by Social Services or Services Canada (CPP disability). Interesting enough is that a study in the U.S. concluded that over 76% of the work related pensions to workers were being paid for by tax payers through Social Security which in Alberta would most likely also be the case. The person whose claim went back 46 years had been on CPP disability and AISH since 1992 until he turned 65, costing taxpayers approximately well over $300,000.00 for a work related injury that was eventually accepted by WCB several years ago and received  approximately $13,000.00 as a lump sum back payment which clearly is a joke with no payment by WCB to Social Services, Alberta Health Care and Services Canada who provided the disability pensions and medical care for the worker and his family destroying the myth that the employer funds the system. You can fool some of the people some of the time but you cannot fool all of the people all of the time and I am one person who you can not fool at all. 

There is good news and bad news after legislative changes by the NDP Government. Good news is the NDP removed the cap on maximum insurable earnings. They also legislated interim payments to workers while their claim is being dealt with by a Case Manager, DRDRB and the Appeals Commission. The bad news is that there is no statute of limitations as to how long it takes for a Case Manager to make a decision. As well there is no statute of limitations to how long it takes for the DRDRB to make a decision and there also is no statute of limitations on how long it takes for the Appeals Commission to make a decision. This could take years. If a worker receives interim relief, the time it takes to go through the appeals process does not seem to matter as workers are being paid interim relief. The bad news is that interim relief is not based on a workers earnings, it is based on minimum wage which means that a worker whose earnings are at the high end will receive minimum wage which will ultimately result in losing everything they own with a good possibility of a worker committing suicide, killing WCB employees, their families or the politicians who are responsible for forcing them into a system that does not work.

Patrick Clayton who most Albertans recognize took the law into his own hands when it was apparent that local authorities refused to assist him. Question is: when local authorities do not protect a person is it a crime to protect yourself? It was determined by the Court that Mr. Clayton was not justified to take the law into his own hands and sentenced him to a prison term. Curiously when he served his time, WCB paid him what he was entitled to but why did WCB not pay him what he was entitled before he took the law into his own hands. He served his prison time and after getting out, WCB paid him and are still paying him for what he was entitled to. Does this mean that in order to receive the benefits a worker is entitled to, that a worker takes the law into their own hands, serves a prison term and then receives compensation after they get out. The moral of this story is that WCB is telling workers that in order to receive the benefits a worker is entitled to, the worker must get a shot gun, go down to the WCB office and threaten or kill WCB employees and then the worker will receive their benefits. Of course WCB did the same thing with Gregory Jacks who blew his head off with a shotgun and after he  was dead, WCB apologized to his widow and paid her the benefits Mr. Jacks was entitled to.

Having spent my early yeas in the military we were taught to take out the people at the top, not the people at the bottom.Using this philosophy, if Mr. Clayton was smart he would have gone to the legislature building and went after the people responsible for his problems and not after WCB  employees who are simply doing what they are allowed to get away with.

Obviously, by abolishing WCB, it  would open Alberta for business with employers from other provinces most likely relocating to Alberta and employers who are presently in Alberta remaining in the province where employers and workers share the cost of disability insurance without the horrendous task of determining causation.

Last but not least, if WCB is such a great insurance plan, why did the Government bring in regulations to exempt numerous employers and workers from having to be covered by WCB which raises an interesting question. When workers and employers who are exempt from being forced into WCB, if an employer or worker covered under workers compensation is involved in an accident with a worker or an employer that is exempt, they can be sued by an exempt worker or employer in the event of an accident where the worker or employer covered under WCB is at fault. In other words, the “Grand Bargain” envisioned by Meredith is not such a grand bargain at all. Better to mandate that all workers and employers be covered under a non conditional disability insurance to avoid any civil litigation involving workers and employers. Why do something half-assed when there is a better alternative. 

Aug 182019
 

By Gerald

This is how governments should function by standing up and fighting for workers, not like provincial governments that are complicit in protecting their sacred cows known as worker compensation boards. I watched a documentary involving workers in Peterborough Ontario who were denied and still being denied workers compensation by WSIB due to occupational diseases while employed at General Electric. Click on the following link:

https://www.workerscompensation.com/news_read.php?id=33420

Aug 072019
 

By Gerald

After decades of studying workers compensation systems in Canada and the U.S., it is apparent to any one who has any  intelligence that a plan that had good intentions has lost it’s usefulness. It is disgusting that the minister in charge of WCB will not respond to a request to explain “who has the burden of proof in the Alberta workers compensation system and yet expects that he has entitlement to being called honorable. Honorable people are willing to go the distance to see that justice is done or seen to be done. It is further disgusting that the Fair Practice Office which is  supposed to assist workers and employers to navigate the system either do not know and refuse to take this issue into the courts. It is disgusting also that the millions of dollars union members pay into unions that this issue would not be taken by unions into the courts. Where are the firefighters, police, paramedics, nurses, public servants etc. when they are required to stand up for themselves against what many refer to as a criminal organization supported by the Government who will not take this matter to the courts. C of QB Justice Millar determined that the burden of proof is on the “Board” The Office of the Ombudsman has determined that initially the burden of proof is on the “Board” and is shifted to the worker on appeal which creates a slippery slope due to the fact that in order to shift the burden of proof, all a Case Manager has to do is to deny the claim. How can any claim be adjudicated if no one knows who has the burden of proof. Everywhere a worker turns, they are confronted with elected or appointed bureaucrats who gather at the public trough and do nothing.  The office of the Ombudsman is a joke as after determining that the “Board” has the burden of proof, the Office of the Ombudsman is supposed to comply with Section 27 of the WCA and refer the matter to the Lieutenant Governor in Council who then determines if an injustice or hardship has resulted to a worker. How much of a hardship or injustice is there when workers are forced to bear the burden of proof. 

Questionably is if in fact the burden of proof is on the worker, who are the litigants. It cannot be the employer as it is rare that an employer will get involved. In reality, the litigants are the worker, WCB, DRDRB and the Appeals Commission. WCB, DRDRB and the Appeals Commission represent the employer who are financed through the accident fund as opposed to a worker who because of the lack of finances are forced to represent themselves or go deeply into debt to hire a lawyer or a worker advocate who who has no legal training in workers compensation law or no back grounds in medicine.  

We have immigrants and refugees coming to this pathetic country and province hoping to start a new life and in order to survive, take jobs that many Albertans are reluctant to take. When these immigrants and refugees suffer a work related injury or disease, no intelligent human being would expect them to have the burden of proof when they have poor language skills, no knowledge of what is expected of them and how the system works. This also would be typical of Albertans who have grade school education. It is of little use to have a Fair Practice Office assist a worker or employer when they themselves do not know how to navigate the system. In every action, whether it is criminal, civil, family, statutory law every one knows or should know who has the burden of proof. How can this be considered a good system for workers whether they are immigrants, refugees or semi-illiterate workers who are born in Canada or Alberta when no one knows who has the burden of proof. I did not serve this country in the military to protect the interests of business owners. politicians who sit on their fat asses and do nothing to change the damage they have done to workers.

Workers compensation should be abolished and employers mandated by law to provide disability insurance that is guaranteed without the need to prove causation or to prove entitlement to benefits. Worker’s primary care doctors would not have to fight to have their patients receive benefits. For example; most if not all workers have pre-existing degenerative disc disease. WCB will not provide benefits other than on a temporary basis as opposed to private disability insurance who will provide benefits for short term and long term disability for DDD. No one should be forced into a system that has been the source of criticism by every royal commission in Canada that has ever been tasked with the evaluation of the system. You can put gobs of lipstick on a pig but at the end of the day it is still a pig and that is typical with WCB.

Clearly, every one must know that private sector workers pay for dual disability benefits for public workers who do not have to fight for disability benefits as if they get sick or have an accident. They can file a disability claim with the private insurer and also with WCB. The private insurer will and does guarantee instant benefits as opposed to WCB who may never pay any benefits and generally never do, especially permanent benefits. Workers in the private sector cannot double dip, so if WCB accepts their claim, all of the compensation paid goes back to the employer. This being the case, why would any moron enact legislation to ensure that only private sector employees such as firefighters, police and paramedics to name a few who are guaranteed disability benefits. The right thing to do is to make it mandatory that all employers in the province provide dual disability benefits to ensure that no worker becomes a charge on family, friends and society. This could be done by a shared cost between workers and employers rather than having tax payers pay via income tax to support workers who have had their claim s and benefits denied illegally by WCB.

The whole system is a convoluted piece of garbage and should be terminated if the present situation is not changed. The whole concept of workers compensation proposed by Meredith was to assure workers that when they are injured, exposed to occupational diseases or killed they would receive compensation and in turn employers would be protected from civil actions. Only one part of the historic compromise has been attained. Employers cannot be sued and workers face unobtainable benefits when they have a work related accident.  

In reference to first responders being provided preferential and differential treatment through legislation specific to presumption, this obviously is discrimination based on provision of services. According to the Charter and provincial human rights legislation, all individuals are to be treated equally so why would a government enact legislation and regulations providing differential treatment to some workers and not to others questions the mentality of the people we elect. Do the people we elect believe that other workers do not get cancer, have heart attacks and have mental issues because of work related factors.

The following e-mails were also sent to the U of A Faculty of Law specifically to professors to explain who has the burden of proof in Alberta workers compensation system. This e-mail was sent to Cameron Hutchinson, Mathew Lewans and Eric Adams at the U of A Faculty of Law who should be able to explain something this simple. 

At times Governments enact legislation and appoint adjudicative bodies to administer a system without providing any direction or interpretation of how to adjudicate the thousands of claims that are adjudicated by lay people. The workers compensation system is a good example of a system that no one knows whether adjudication is based on a strict civil system which is an adversarial system with two litigants, a plaintiff and a defendant consisting of a worker and an employer. A known fact specific to civil law is that in most cases, the burden of proof is on the plaintiff but according to the Supreme Court can be reversed at times as determined in Snell v. Farrel. According Dr. Terence Ison, a well known expert on workers compensation specific to adjudication of claims, adjudication is based on an inquiry system, not an adversarial system typical of civil litigation and the entire burden of proof both for and against is on the respective “Boards” which was proposed by Meredith over a hundred years ago. According to the WCA, the proposal of an inquiry system is supported by statute by providing exclusive jurisdiction to WCB to investigate and gather the facts. The WCA also provides WCB the same powers as the Court of Queens Bench and as well all the powers under the Public Inquiries Act. With what appears to be an easy enough system to understand that there is a big difference between civil law and an inquiry system, adjudication of claims is and has been based on an adversarial system where the burden of proof has been placed most likely illegally on workers who do not have the knowledge, financial ability and legal right to gather evidence, subpoena witnesses to support their claims and entitlement to benefits. On numerous occasions, it has been requested to the Alberta Government to explain how an inquiry system works and if in fact the burden of proof is entirely on the “Board” as suggested by Dr. Ison who is supported by other provincial workers compensation systems or is the burden of proof on workers to prove their case and the burden of proof on employers to rebut any evidence that is provided by a worker. It would be greatly appreciated is you could explain how an inquiry system is supposed to work. Thank you! Respectfully; Gerry Miller 

Needless to say there was no response and more than likely will not respond, just as Mr. Copping has not responded. I came across a lawyer in Ontario, Omar Ha-Redeye who wrote an article on the illegal use use of the but for test and material contribution test in workers compensation systems and the following e-mail was sent to him;

I have read several articles by you and question why many worker compensation systems in Canada place the burden of proof on workers despite the fact that workers compensation is supposed to be based on an inquiry model, not an adversarial model. Worse yet is that the “but for test and material contribution test” is used as a legal standard when workers are forced to bear the burden of proof. After reading your article http://www.slaw.ca/2016/11/20/modified-causation-in-workers-compensation/ it would be fair to suggest that placing the burden of proof on workers is not in compliance with the legal standards that separate civil law from administrative law that defines workers compensation systems. Curiously is that the Manitoba Workers Compensation Board https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf places the entire burden of proof both for and against on the “Board” whereas in Alberta, the impossible burden of proof is on the worker. Dr. Terence Ison who was recognized as Canada’s foremost expert on workers compensation is quoted in many of his articles stating that there is no burden of proof on workers or employers and that in an inquiry model, the entire burden of proof both for and against is on the “Board”. Dr. Ison also states in his numerous articles that adjudication is not based on the civil standard which in your article, you are in agreement with. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj In your opinion who has the burden of proof in workers compensation and why has the burden of proof shifted to workers who do not have the knowledge, financial ability and legal right to gather evidence due to the exclusive right of the “Board” to gather evidence. 
Respectfully; 

Gerry Miller 

Delving further into who has the burden of proof in workers compensation I found that British Columbia has shifted the burden of proof from workers to the Board in 1968. When reviewing Meredith and leading up to acceptance of the Meredith Principles, he was of the belief that adjudication of claims should not be based on an adversarial principle which in my opinion should have then never resulted in adjudication being based on civil law which is specific to an adversarial model. This raises the question as to what is defined as an inquiry system. Is an inquiry system an adversarial system where a worker has the burden of proof. If this is so, the Dr. Ison is incorrect in his interpretation of who has the burden of proof.

According to the Alberta Court of Queens Bench in the case of Allsop v Alberta Appeals Commission, Justice Clackson determined that the Appeals Commission were of the opinion that workers had the burden of proof, thus making adjudication of claims an adversarial process by referring to Policy 01-03 where the B of D enacted policy placing the burden of proof on workers. Questionably is if the WCB B of D can enact policy placing the burden of proof on workers when historically the burden of proof according to the Meredith principles was on the Board. Justice Clackson was extremely critical of the use of lay people to hear claims as opposed to having workers having the right to have their claims heard by real judges, subpoenaing of witnesses and the right of cross examination. Justice Clackson does suggest that it is silly to have a court review some of the irrational decisions of Administrative Tribunals based on reasonableness and then hold your nose when it is apparent that the lay people who are adjudicating claims have no legal training or medical training and yet a Judge is forced to give deference to a bunch of morons. After having gone through numerous Judicial Reviews, it is my opinion that a Judge should be able to direct that the claim be reheard in the courts with full disclosure and the subpoenaing of the people who made the decisions along with the doctors who provided the opinions that adjudicators used to deny a claim or benefits. Putting the lives of people into the hands of morons is not the way the justice system is supposed to operate. It is well worth the time to read Justice Clackson’s evaluation of administrative law and recommends a procedure that is identical to the U.S. where claims are heard by real Judges in the courts and not morons appointed by Government.  Notably in the U.S. is that 67% of the claims denied by insurance companies are overturned by Judges with increased costs to the insurance companies of 59% paid to lawyers for costs and disbursements when representing a worker.

Aug 062019
 

By Gerald

A new study has come out determining that firefighters diagnosis of PTSD is far less of a risk than any other workers and questions why firefighters have been provided presumptive status for PTSD. Firefighters also have a far less chance of contacting cancer, heart attacks than other workers who are exposed on a daily basis to known carcinogens and the incidents of heart attacks. White collar workers and shift workers have a far higher risk of CVD than do firefighters or first responders. Lately, class action law suits involving “Roundup” has resulted in Bayer having to potentially have to pay out billions of dollars to settle thousands of law suits that have been heard by the courts and other claims pending. Roundup has been speculated to cause numerous medical conditions due to the use of glyphosates and the additives which has entered our food chain with a bigger effect on children due to consumption of cereals that have been used to treat crops. The toxicity of glyphosates are controversial as there is a divided opinion among experts as to whether they are safe.

Click on the following link: https://www.workerscompensation.com/news_read.php?id=33303

Jul 292019
 

Dear Mr. Copping;

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

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

If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where it states:

V Principles of Adjudication Inquiry Model 

The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement. 

Click on the following link:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj   Scroll down to page 814 third paragraph where Dr. Ison states:

With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant.

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

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

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

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

  • Gerry Miller
Jul 232019
 

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

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

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

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

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

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

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

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

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

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