From The Lawyer’s Daily:
Ontario Court of Appeal okays class action against WSIB (February 16, 2017)
Many of you will by now have read the very important decision of the Ontario Court of Appeal on the class action brought against WSIB by Richard Fink. It can be found here:
I know that for some of us worker representatives working in the trenches, higher court decisions will seem of limited relevance. But this is not really the case. In truth, wherever we work in the justice system, ultimately we rely on the rule of law in Canada and Ontario. If that slips away on us, we will be in the situation where the arbitrary exercise of power will be much more difficult to challenge. So it’s important to read Castrillo; and now you can add to your reading list the beautiful and timely blog on the decision by Ron Ellis. It will help you understand the twists and turns of the Court of Appeal’s reasoning and the overall importance of the decision. We are fortunate to have the benefit in our area of law of Ron’s careful, reasoned and powerful mind going to work on this important decision, which has emerged at such a critical time for our workers’ compensation system.
Here is the link to Ron’s post. I’ve also pasted in the text at the end of this e-mail. However, I would urge you to go to Ron’s website, where you will find lots of high quality analysis not just in workers’ compensation but broadly in administrative law. Workers’ compensation is not alone in facing challenges to the rule of law.
Thank you Richard for bringing this case forward and Ron for your important work elucidating it for us.
Click on the following link; http://tvo.org/video/programs/
I must say that after watching the video I was impressed by the respectful manner by all persons involved. Interesting is that the participants all were concerned with the same problems that plague workers compensation systems throughout Canada and especially in Alberta where workers do not have access to lawyers as lawyers in Alberta want nothing to do with WCB, doctors want nothing to do with WCB, workers do not have access to the minister in charge of the system, do not have access to the President of WCB, do not have access to the WCB BoD or any other high ranking official within WCB. Complaints to the Alberta Ombudsman is useless and as well workers cannot file a human rights complaint nor have they got the financial capability of filing a contravention of the Charter.
The interview begins with talking to Mr. Barreira to put a real face on what is and should be how the WCB Review Panel should be doing rather than how they are handling their mandate at present. Real faces and real scenarios are how the problems that plague the system has to be determined by reviewing actual claims. Most if not all claims involve the same problems which was noted by the participants to be the norm rather than the exceptions. Mr. Barreira is a good example of what happens to disabled workers when they are no longer able to work, the employer does not have modified work of a sedentary nature, the system deems a worker, then terminates the worker and they become the responsibility of tax payers by going on welfare. Question is why is Mr. Barreira on welfare when his disability is work related. If Mr. Barreira is capable of working then he should not be on welfare. If one agency determines that Mr. Barreira is capable of working (WSIB) and another agency (Welfare) determining that he cannot work, the reason given by the Alberta Appeals Commission in their decisions on Canlii is that both agencies come under different legislation. Common sense and logic would be that the Government enact legislation that will apply to both agencies or bodies. How can a person be totally disabled and accepted on welfare and able to perform gainful work by workers compensation at the same time? This also applies to CPP disability. How can one body determine total disability and another body determine that a person is capable of working. Do we live on the same planet or is it that we elect imbeciles to Government that are as stupid as the people in the WSIB who decide that a disabled worker can perform gainful work and other stupid people in Social Services determining that the person is not capable of gainful work. People argue over how many people are on welfare with work related injuries. Does it really matter whether there is one person or if there is 20,000 or more on welfare. If there is only one person on welfare, then there must be a full inquiry as to why they are on welfare if they are capable of gainful work.
In Mr. Barreira’s case, I suspect that his claim was terminated because of deeming. Most likely he was deemed as a call center employee, a Walmart greeter, parking lot attendant or a dispatcher. The other 18,320 disabled workers most likely were also deemed in the same occupations as Mr. Barreira which questions how many parking lots are in Ontario, how many call center positions there are, how may Walmart there are, or dispatchers required. Each of the positions I have provided would most likely require a 40 hour work week. If a person was to do the math, it is most likely that there would be more than 100 workers for each 8 hour shift. As the provincial governments have allowed workers compensation system to determine earning losses based on imaginary jobs that don’t exist rather than actual jobs and actual earnings, workers who are totally disabled are forced to go on welfare and is the reason why tax payers are funding the system.
According to statistical information provided, in Ontario, each year there are approx. 229,000 claims and 92% of the claims are accepted and the workers all go back to their former jobs. Multiplying 229,000 times 8% results in 18,320 workers who do not return to their jobs because of the severity of their injuries. That is an astronomical amount of workers who no longer are capable of returning to their former jobs and is an astronomical amount of individuals who then turn to welfare to support them and their families. If each of the 18,320 workers are on welfare, tax payers are then paying out on a monthly basis $!8,320,000 a month to support these workers which is an astronomical amount of money tax payers are paying to subsidize employers and why studies have shown that tax payers subsidize employer premiums by what has been reported as being 80% when medical care has been factored in. No one can tell me that the provincial governments do not know that this is true. Mr. Teahen (president of WSIB) is correct when he suggests that WSIB does not do a very good job of caring for the 8% of workers who fall through the cracks. Studies have shown that the 8% of disabled workers cost more to the system then the total amount of the 93% who return to work. Mr. Teahen’s understanding of a 93% success rate where he suggests that 93% of the workers are employed in actual jobs after 12 months is questionable and rebutted by Mr. Newbury, Mr. Newhouse and Ms. Yachnin who suggest that if a follow up was done after 6 months, that 93% figure would have diminished significantly.
Mr. Teahen refers to the unfunded liability that consumes one dollar for every premium cost. The unfunded liability is compensation that should have been paid to workers but was illegally with held. I say illegally because by law, workers are supposed to be given the greatest of latitudes and receive the benefit of doubt when a claim remains in the neutral state. In Alberta workers never receive the benefit of doubt when a cause is unknown. The benefit of doubt goes to WCB and is why there is an unfunded liability as every one knows or should know that in nearly all claims there is a very strong link to the work environment. One of the concerns of employers a hundred years ago was that the employers of today would be paying compensation to workers whose injuries or disease occurred decades earlier and their concerns were legitimate. In Ontario and B.C the majority of the unfunded liability is based on asbestosis, mesothelioma and silicosis and had workers been given the greatest of latitudes and the benefit of doubt decades ago, other more recent workers diagnosed with these diseases would not have been exposed to these deadly substances. In fact prior to asbestos being determined to be a dangerous substance, Boeing knew ten years prior and the Government and Boeing covered it up. The same coverup is at present in South Korea between the South Korean Government and Samsung.
I agree with Mr. Teahen that the 8% of claims that run into difficulty are the ones that have to be rectified and review each claim in it’s entirety to determine what went wrong as no one should care about the 93% of the workers who returned to work with no complications. To rectify the 8% of the claims that were not rectified and remain unresolved, in Alberta we have to rehear those claims to determine what happened.
Mr. Teahen also admitted that Case Managers did not have any medical expertise and relied on “Board” doctors to provide medical information. While this may work in theory, it does not work in practice as most if not all Medical Advisors are not experts and are not qualified or certified to provide medical information and Case Managers are not qualified to determine whether the medical information is in fact based on accepted medical and approved information which in my experience over the last 24 years has happened not just occasionally but has happened in all cases. I say this because I can prove everything I say. While some people may consider this to be humorous, I find no humor in the fact that doctors performing IME’s do not know how to measure leg lengths. To determine leg lengths, you measure from the illiac crest to the medial malleolus, not from the crotch to the medial maleolus. Measuring leg length for a pair of pants is different than measuring leg discrepancies medically. It took 43 years and numerous specialists (Neurosurgeons, Orthopedic Surgeons) to admit that the worker I represent had a 3 inch discrepancy between the left leg and right leg (determined by a Physiatrist) once they realized that leg length is not determined by measuring from the crotch to the ankle. Wrong diagnosis has also been a major problem as witnessed by the fact that a diagnosis of idiopathic micro fractures of bone cannot be diagnosed if micro fractures are seen on imaging as the cause of the death of bone is because of the micro fractures interrupting the blood supply and is not idiopathic or unknown. Worse yet is when it takes 7 years to have to fight with WCB Medical Consultants, the DRDRB and the Appeals Commission and as well as the head of WCB Medical Services (Dr. Lauber) over how to use the AMA Guides in assessing impairment and then have the American Medical Association, the most powerful organization in the world supporting me and forcing Dr. Lauber and his cronies to admit that I was right and they were wrong. The Appeals Commission refused to admit that their decision to deny benefits based on the WCB Medical Consultant’s medical opinion was wrong and when I asked for a reconsideration based on the new evidence provided by the AMA’s Medical Experts, they determined that with due diligence the evidence could have and should have been provided at the first in person appeals commission hearing and denied the request for reconsideration. How in the name of hell could have I presented the evidence form the AMA when it took me 7 years to have this information provided to me. Furthermore it is not up to a worker to gather any evidence as the burden of proof is entirely on the “Board” who have through legislation the exclusive right to gather evidence and had the Case Manager took a balanced approach and contacted the AMA which I was forced to do rather than to take the medical opinion of an uncertified and unqualified WCB Medical Advisor, this evidence would have been available at the first in person Appeals Commission hearing.
Determining who has the burden of proof is the most important and crucial part of the adjudication process and the WCB Review Panel must have this determined, otherwise the review becomes totally useless as the same problems that plagued the system before will continue to plague the system in the future. Should workers assume that everything they read is a lie and that Canada’s foremost expert on workers compensation administrative law (Dr. Terence Ison now deceased) was a fake and a liar when he states in his book “Workers compensation in Canada 2nd Edition” that the workers compensation system in Canada is based on an Inquiry system and the entire burden of proof both for and against is on the “Board” thereby making him a liar and a fraud. The WCB Review Board must establish when the workers compensation went from an Inquiry system to an Adversarial system and the burden of proof went from the “Board” to the worker and employer.
Workers also have to know that the statute of limitations only applies if a claim is appealed. There is no statute of limitation if a decision made by the DRDRB is not appealed as it stays at the level of the DRDRB and remains in their jurisdiction. The worst thing a worker can do is to appeal a decision of the DRDRB to the Appeals Commission because if a worker appeals to the Appeals Commission and the appeal is denied, if new evidence does become available, chances of a reconsideration by the Appeals Commission are slim and none. The Appeals Commission will not in most cases reconsider their original decision because they do not want to admit that they were wrong, whereas if a decision made by the DRDRB is in error because of a false or incorrect medical opinion, the DRDRB will in most cases accept new evidence and will reverse their decision when it is apparent that the new evidence supports a worker. One of the major problems with the whole process and system began in 1988 when the Alberta Government brought in the Appeals Commission and gave them absolute power which included absolute power over the courts who by law cannot overturn an Appeals Commission’s decision based on pure fact even if the court has to hold their noses and provide deference to lay persons who do not have a clue what they are doing.
Despite the fact that new evidence is significant and substantial, the Appeals Commission through their rules of procedure will in most cases deny a reconsideration by using their rules of procedure which allows them to deny a reconsideration with their reasoning that with due diligence, the evidence could have been presented at the original Appeals Commission hearing which then should not question why I continue to dwell on as to who has the burden of proof, WCB who by legislation has the exclusive power to investigate and gather the facts or the worker who does not have any powers of investigation, does not have the financial capability to pay medical experts to review their claims, thus leaving workers in the impossible task of having fair adjudication of their claims. In reality, there should never be any new evidence at any time as if WCB had performed a thorough investigation, there would be no new evidence. If Case Managers were medical experts, they would know when a WCB Medical Advisor’s medical opinion was not based on accepted medical fact, they would seek a second opinion from better qualified doctors rather than blindly accept a medical opinion from WCB Medical Advisors who have never opened up a medical text book in 20 years or more or do not have an active medical practice. Does this happen? It happens nearly all the time and is the reason why it is rare to have two doctors agree on anything and why most people will or should seek a second or third medical opinion.
The Alberta WCB has to be the most backward system in the entire world as witnessed by the use of antiquated impairment guides such as the Alberta Guides, no mandatory procedures specific to the modified work program, illegally placing the burden of proof on a worker and through legislation providing exclusive jurisdiction to WCB to investigate and gather the facts. The Alberta Guides to impairment do not complement the AMA Guides as a person cannot defer to the AMA Guides when the Alberta Guides are silent or deficient as the impairment ratings differ and are not based on the same reference levels. The burden of proof is illegally placed on workers despite the fact that in an inquiry based system the burden of proof is supposed to be entirely on the “Board” which is part of the historic agreement. The Alberta WCB modified work program is a disaster as there is no mandatory procedures in place to ensure that workers are in fact offered modified work by an employer, the Case Manager can provide an offer of modified work without the consent of the employer, the worker’s primary care doctor’s medical refusal to allow the worker to perform modified work can be contradicted by the Case Manager. After ten years of fighting through the appeals process and two different Judicial Review and Appeals, it was determined by the Appeals Commission that there need not be any offer of modified work from an employer, there need not be any modified work description and the claim can be terminated. A letter from myself to the WCB BoD resulted in a refusal to provide mandatory modified work procedures to avoid the illegal acts of Case Manager’s who provide false evidence on a claim. Rather than fix the problems of the modified work program, the WCB BoD has refused to do anything to ensure that the modified work program procedures are mandatory rather than recommended procedures. This leaves the worker with only one option and that is to sue the Appeals Commission and WCB to recover compensation that is supposed to be guaranteed which I will be doing in the next few months with the expectation that the court will rule in the workers favor as both WCB and the Appeals Commission have acknowledged that the employer did not at any time provide any offer of modified work, that the offer of modified work came from the Case Manager who fabricated the offer and the burden of proof was on the worker to provide this evidence. Documentary evidence supports the fact that the employer and worker never had any contact after the date of accident thereby supporting the fact that the Case Manager lied.
While this may sound arrogant, conceited and bragging without the WCB Review Body contacting me and asking for my assistance, the review will result in a dead end with nothing accomplished. There are very few people who receive information on a daily basis specific to workers compensation issues, decisions and legal precedence from around the world which allows me to compare the good and the bad of all workers compensation systems and allows me to make recommendations on how to make the Alberta system the best system in the world. I also have a network of workers from across Canada that contact me to advise me of workers compensation issues in their province that has a ripple affect that affects the Alberta workers compensation system. I also review decisions made by the Alberta Appeals Commission on Canlii and compare those decisions with WCAT decisions in other provinces. Without knowing or comparing how other worker compensation systems operate, there is no way of knowing what the problems are in the Alberta system and how to rectify these problems. As well as workers compensation issues from around the world, I also receive medical updates and information from reputable sources such as John Hopkins, Medline etc. on a daily basis which results in me knowing before most doctors new developments in medicine. As many workers across Canada know, I was one of the advisors to Justice Friedman when he reviewed the appeals process and concluded that the appeals process does not work and there is a culture of denial. My advice at this time is fix the system or simply abolish it as it serves no useful purpose, other than to give the illusion that when a worker is injured, they will be looked after. Once a claim is filed, a worker is guaranteed of having their lives become a living hell which is the norm rather than the exception and especially for workers who suffer injuries that result in permanent loss of function.
Click on the following link http://news.smh.com.au/breaking-news-national/workcover-changes-are-messy-ofarrell-20120622-20rg7.html
The NSW government has now agreed to exempt firefighters and paramedics and not just policeman which for any one with a reasonable amount of intelligence results in two classes of workers, those that are exempted from legislation and those who are not exempted. This is the same situation that exists in Alberta and as well across Canada where firefighters and now all first responders are given presumptive status and other workers are not given presumptive status which in my humble opinion results in a class discrimination. According to human rights legislation and as well, the charter, when people are treated differently, this results in discrimination which is illegal. All people are supposed to be treated equally under the law and before the law.
There is absolutely no reason why the NSW workers compensation would have a 4 billion dollars debt, other than through gross mismanagement. Many workers compensation systems are in debt because of poor investment practices. Studies across America have concluded that work reported injuries are drastically down due to workers not reporting accidents for fear of losing their jobs, yet costs to administer the system have skyrocketed with many workers compensation systems blaming medical costs rather than admitting they lost money through poor investment practices. The same thing that is happening in NSW has been happening across America where workers are having their benefits reduced or eliminated due to worker compensation systems debt load and unfunded liabilities. Many people are of the opinion that the debts incurred by WCB systems should be shifted to the governments who are directly responsible for the mess they have created and is something I agree with. Notably, the WSIB are over 14 billion dollars in debt and are contemplating reducing or eliminating benefits which results in shifting the costs to government sponsored programs such as CPP disability programs and provincial social services programs. Over a hundred years ago, the historic agreement between workers and employers was to prevent workers from becoming a charge on family, friends and society and a hundred years later workers are a charge on family, friends and society. That being the case, what is the point of having workers compensation systems? Why have a system that has now become a two tiered system where you have two classes of workers, firefighters, first responders who have dual taxpayer and employer full earning loss benefits as compared to other workers who have no earning loss benefits even though they are supposed to be guaranteed earning loss benefits from worker compensation systems.