By Gerald
I have reviewed the submissions presented to the WCB Review Panel by the numerous parties such as Adorn Consulting, Alberta Construction Association, Alberta Federation of Labor, various unions, Friends of Medicare, Canadian Federation of Independent Businesses to name a few who offer their concerns and recommendations but the concerns and recommendations fall far short of what the primary problems are. Organizations that provided any meaningful and useful input into the problems that workers have when filing a claim with WCB are the Canadian Injured Workers Association of Alberta, who had the benefit of having thousands of worker’s input into how the system failed them. Other organizations especially AUPE, Worker Advocates, Friends of Medicare and Unions representing Alberta unions also provided useful input and recommendations. The firefighters concern and recommendations are based on selfishness as all they are concerned with is how their claims are adjudicated and have no concern as to how other more vulnerable workers claims are adjudicated. Other workers do not have the luxury of having dual disability insurance, both private and WCB disability insurance and if WCB denies their claim, private disability insurance accepts their claim and provides short term or long term disability benefits without having to fight for decades to have a claim accepted and benefits provided.
The least useful and predictably so is the input from employers who gullibly believe that the system provides a fair method of adjudicating claims with no concerns as to how WCB, DRDRB and the the Appeals Commission are performing their jobs. Of course if employers premiums are the lowest in Canada and they receive billions of dollars in rebates, why then would a person complain. Employers have no idea what goes on during the appeals process as for the most part it is rare for an employer to get involved in the appeals process as they are adequately represented by WCB and the Appeals Commission with the WCB being an employer( member of the Alberta Chamber of Commerce) who pays premiums to themselves and the Appeals Commission who are selected by the Alberta Government who also are employers paying premiums to an arms length Government monopoly. In effect workers are left on their own to fight WCB and the Appeals Commission rather than an employer and have the impossible task of fighting two employer represented bodies with unlimited powers, unlimited financial power to buy medical opinions and control the court process if workers are able to take their claims to the courts. Unfortunately, the courts also do not have the power to overturn a decision based on fact and forced by legislation to defer to the decision of the Appeals Commission who are far from being experts in determining the facts as in nearly all cases, the facts have never been investigated and if gathered are biased by the body who are by statute and policy are required to perform a thorough investigation but rarely ever do. Employers have no idea of the billions of dollars that they and workers have to pay in excess taxes to fund Alberta Social Services, Alberta Health Care and also pay premiums to CPP.
Of note and it is a good recommendation by employer groups is to have an office of the appeals advisor for employers as there are numerous small employers who like workers have no idea of how the system operates and cannot afford to pay for representation. Both of the Office of the Appeals Advisor for workers and employers must be independent of WCB and staffed by lawyers who are experts in workers compensation issues and paid out of the accident fund. I also like the idea of a WCB Ombudsman or Fair Practices Officer which I recommended nearly twenty years ago to Justice Friedman.
Workers Compensation Regulations have to be revised with no exemptions for any employer from having WCB coverage if changes to the workers compensation system results in better decisions that favor workers to eliminate any possibility of workers becoming a charge on family, friends and society which is the whole idea of the Meredith Principles. The regulations also have to be specific as to the amount of exposure required by specifying in column 2 of Schedule B of the Regulations, rather than significant exposure with reference as to where this information was obtained. Most if not all allowable exposure levels were determined over 40 years ago and have never been updated. A particular disturbing presumptive description of a work related occupational hazard occurs in point 8 column 1 of Schedule B specific to “Vascular disturbances of the extremities” which is explained in Column 2 of Schedule B which species only one cause , vibration without specifying other causes such as repetitive actions of the hand and wrist which causes reduced flow of blood to the upper extremities resulting in through the bone modeling process, the formation of abnormal bone which is susceptible to micro-fractures when workers are involved tasks that require high grip and pinch strengths leading to what is referred to in the literature as insufficiency fractures that if not treated results in avascular necrosis of the carpal bones, especially the scaphoid bone (Preisers disease) and lunate (Kienbochs disease) which are work related occupational injuries. Most doctors have no idea how the mechanism of reduced blood flow due to repetitive actions of the hand and wrist can result in micro-fractures to the carpal bones due to overloading of abnormal bone.
Whether the WCB Review Panel likes it or not, I believe that there are some claims that have to be referred to to get a good understanding of why all long standing claims must be heard. I filed a claim for bilateral avascular necrosis of the scaphoids on behalf of a worker and the claim was denied through all levels of appeal based on the false work description provided by the employer and reviewed by a WCB Medical Advisor who provided an opinion based on the false description of the work activities. WCB refused to provide an ergonomic assessment of the work place and I then requested that this be done by Alberta OH&S by an expert in ergonomics. Despite the objections of the employer and WCB, OH&S performed an ergonomic assessment which supported the claimant’s description of the work activity and proved that the employer was lying. I requested a reconsideration by the Reconsideration Threshold Panel and based on the new evidence presented numerous medical opinions from all WCB Medical Advisors and as well as an outside Occupational Specialist and Hand Surgeon along with medical literature supporting causation, the Reconsideration Threshold Panel determined that there was a causal relation, overturned the decision of the original Appeals commission denial and sent the claim back to Customer Services. Customer Services despite absolute evidence to support the claim, denied the claim, the denial was upheld by the CSRC and went back to the Appeals Commission who then denied the claim despite absolute evidence supporting the claim by all private and WCB Medical Advisors who supported the claim. The reason why the claim was denied by the Appeals Commission was that George Pheasy decided that with due diligence, the ergonomic assessment should have been performed prior to determining causation and all the doctors opinions supporting causation could have with due diligence been provided by the worker supporting causation and should have been provided at the first appeals commission in person hearing. In affect all medical opinions were disregarded, medical literature was disregarded by the Appeals Commission and despite the fact that causation had been established based on medical fact, the Appeals Commission blamed the worker for not investigating and providing the information prior to their decision. In effect, the Reconsideration Threshold Panel disagreed with the original Appeals Commission and George Pheasy resulting in the same bodies within the Appeals Commission, Appeals Commission and Reconsideration Threshold Panel disagreeing with each other. The question then is who must investigate and gather the facts, is it the worker or the “Board” Who has the burden of proof and why would the burden of proof be on a worker when they do not have the powers of investigation. Why should a worker be held accountable for an employer lying about how work is performed and then having doctors providing medical opinions based on their belief that the employers false work activity has been been investigated by WCB and is found to be accurate. Denying a claim supported by all doctors and medical science is an abuse of power, an act of bad faith and most likely criminal fraud, yet no one wants to prosecute any one within the WCB system and most likely couldn’t any way because according to the WCA, WCB and the Appeals Commission can make an honest mistake. (LOL)
I take exception when any one accuses all WCB Medical Advisors as being biased or corrupt when in fact there are many WCB Medical Advisors who are good honest doctors who provide opinions on what they believe is true. Case Managers will with hold evidence from doctors who become victims of WCB by being lied to when performing IME’s or providing medical opinions. The ergonomic assessment that I have referred to performed by OH&S was deliberately with held by a Case Manager and being that I was in attendance at the IME, I provided the ergonomic assessment that resulted in the Hand Specialist determining a work related cause which the Appeals Commission refused to accept because it was after the fact and they did not want to admit they had made an incorrect decision in denying the claim. I also take exception to people who believe that Medical Specialists know more than a GP as there are many GP’s who take a special interest in a certain medical condition and are far more knowledgeable than a Specialist.
Of interest is that presumptive status for firefighters which originated in the U.S. under total adversarial civil law where the burden of proof both for and against in all situations is placed entirely on the worker and the employer and then went further to include first responders which has resulted in major complications and financial burdens on tax payer with respect to PTSD claims. Recent studies have found that 87% of claims for PTSD by first responders are based on fraud as it is relatively easy to go on the Internet and get all the information a person wants on the symptoms of PTSD and then utilize these symptoms to convince a psychologist or psychiatrist to diagnose PTSD. Numerous fire fighters and first responders will submit a claim for PTSD prior to announcing their retirement and then receive compensation on top of their public pensions. The support for fire fighters and first responders as to why they were provided presumptive status in the first place is being questioned in the U.S. as all fire fighters and first responders knew prior to employment the risks they would face in their professions of being exposed to toxins, horrific accidents, violence etc. and thus could have chosen another profession. Unlike the military, civilian firefighters and first responders can hand in their resignation any time they decide to. Clearly,it must be realized and acknowledged that the only reason why fire fighters and first responders were provided presumptive status in the U.S. is that in an Adversarial system, the impossible burden of proof was placed on firefighters to prove causation specific to certain types of cancers as opposed to Canada which is supposed to adjudicate claims under an Inquiry system and thus there was no need to provide discriminatory legislation that favors fire fighters and first responders as common sense and logic based on a balance of probabilities is all that is required by law as evidence that any cancers diagnosed for fire fighters or first responders would most likely be caused by work exposure. Furthermore, causation is supposed to be based on common sense and logic (balance of probabilities) and not on medical evidence as that requires a much higher standard. This higher standard has been determined by numerous Canadian courts to not fit into workers compensation systems but seems to be a problem for WCB and the Appeals Commission to understand.
Having said that in Alberta and the rest of Canada, some one has to determine “who has the burden of proof” in all situations under what is supposed to be an Inquiry system whether for causation, offers of modified work, determination of disability, determination of earning losses etc. It is grossly illogical to provide WCB all the powers of investigation and then place the burden of proof on a worker who does not have the legislative powers to investigate, has relatively little or no knowledge of the system, has relatively little or no knowledge of medicine, has no financial ability to contact medical experts. It is obvious that the WCB BoD do not believe that the burden of proof is on the “Board” as evidenced by the fact that WCB Policy 01-03 specifically places the burden of proof on the worker, Policy 01-08 places the burden of proof on the worker and the Appeals Commission Rules of Procedure also places the burden of proof on a worker by stating that “with due diligence” the evidence that the worker was illegally forced to submit in an Inquiry system could have been provided at the original in person appeal panel hearing. In my humble opinion, in an Inquiry system, any evidence that was not provided by WCB during their investigation is not the responsibility of a worker to provide.
Basically, workers compensation has very little in common with civil litigation and is analogous to the criminal justice system where there is a victim and the police who are usually considered to be neutral have all the powers of investigation and after a through investigation hands the evidence over to a usually independent Crown Prosecutor who decides if the evidence supports going to trial. In the workers compensation system, WCB is supposed to be a neutral party who investigates and determines whether there is evidence both for and against. In all cases, there has to be two scenarios, either the accident arose out of and occurred in the workplace or the accident did not arise out of and occur in the work place. Both scenarios have to be included in the adjudication process. In other words if an Adjudicator determines that the accident did not arise out of and occur in the course of employment, the Adjudicator then must determine the risk factors and the time and place outside of the work environment that caused the accident. It does not matter in any disagreement, if one person provides an opinion based on some evidence they have read, seen or been told, there has to be some conflicting evidence to contradict the evidence, not simply a negative opinion rebutting the other persons evidence without providing evidence to support the rebuttal. Climate change is a good example; some experts suggest that climate change is a natural phenomena that is simply changes of natural or normal weather patterns that have occurred previously over the last million or more years due to volcanoes etc, other experts suggest it is due to man made causes. Who does a person believe? It is obvious from the decisions made by the Alberta Appeals Commission that adjudication is based on the strict rules of civil procedure where a worker is considered to be a plaintiff bringing an action against a defendant which is not the employer but the “Board” as in nearly all cases, the employer does not attend in person hearings. Obviously that was never the intentions of Meridith to force workers from for the most part a fair and just court system where a worker had all the rights of a natural person into an administrative system adjudicated by incompetent, deceitful, disrespectful people where workers have lost all their rights to a fair and unbiased adjudication of their claims. If I am wrong, then why is it that in every situation upon investigation of WCB, there are glaring deficiencies in the system. After over one hundred years, the system should have been perfected not constantly having to be reviewed for corruption. Obviously no system can operate when the system consists of lay people determining medical evidence that is based on medical opinions from doctors who themselves have no idea whether the opinion they are providing is based on undisputed medical fact, undisputed medical literature or undisputed medical consensus. As with anything, any opinion must be based on a reference to specific literature, the chapter and pages where the medical opinion is derived from. For anyone who is interested and spends a lot of time reading medical literature on a daily basis as I do, the word “may” is used consistently in medicine rather than the word “will” as it is impossible to determine how each individual based on their genetic makeup will react to prescription medications, toxins, stress, pain etc. and is the reason why there are some people who take prescription medications that result in death for some but total relief for the majority of people. In fact prescription medications are marketed based on the fact that some prescription medicines will cause major side affects and may result in death for some people but if the majority of people receive relief, these prescription medications are allowed to be marketed.
Some of the responses to questions specific to psychological diagnosis is not complex at all especially when it involves a disabling injury. I have been in attendance at several psychological evaluations and for the most part, the assessment of determining a work related cause is simple. A psychiatrist determines the correct diagnosis from the DSM Manual and the severity of the psychological evaluation. They then consider the past history of a worker before and after an accident by review of a workers medical history. They go into a workers past family history prior to an accident which is very personal and leave nothing to chance. If a worker did not have any mental or emotional problems involving suicidal ideations and homicidal thoughts prior to a disabling accident and they have mental and emotional problems after a disabling accident, then it is easy to conclude that the emotional and mental condition is work related but if a worker has a history of emotional and mental problems such as marital disputes, financial problems etc. prior to a disabling accident it would be concluded that the psychological condition is not work related. In all actuality it is easier to diagnose a psychological disorder especially when the psychological diagnosis is based on a disabling injury than it is to diagnose an acute injury that may not show up on imaging. More often than not it is Case Managers, DRDRB and the Appeals Commission who cause secondary work related psychological disorders by the inhumane and contemptuous treatment of workers. Although worker suicides or homicides are rarely or if ever reported in the media, most if not all workers have homicidal thoughts of harming the people who have destroyed their lives. All the workers I have talked to have stated that if they knew they could get away with it, they would cause harm to the people who destroyed their life. In a CBC Radio live broadcast after the incident involving Patrick Clayton, I was asked if I thought what he did was justified. My reply was that if local authorities do nothing to fix a broken system then any kind of violence against WCB Personnel was justified.
The Alberta WCA does not specify as to who has the “burden of proof” . No one in Government, WCB or the Appeals Commission will answer that question. On November 8 and 9th I represented a worker in an in person hearing and was the first question I asked. The Appeals Commission refused to answer the question. I then requested that they file an originating notice for the Court of Queens Bench to answer that question which obviously forms the basis of every claim as without knowing who has the burden of proof, you cannot adjudicate any claim. It is obvious also that the Alberta Court of Queens Bench also do not know who has the burden of proof in the workers compensation system as this was an issue that was dealt with by two different Judges on subsequent Judicial Review and Appeal. Justice Millar agreed with me that the workers compensation system is based on an Inquiry system and the burden of proof is on the “Board” to prove that modified work was offered and sent the claim back to the Appeals Commission to reconsider their decision to deny the claim and to contact the employer to determine if modified work had been offered. The Appeals Commission refused to contact the employer as directed and again denied the claim despite finally acknowledging that there was no offer of modified work and I was forced to go back to the Court of Queens Bench to rehear the same claim before a different Judge. Justice Yamauchi disagreed with Justice Millar as to who has the burden of proof in an Inquiry system and instead determined that adjudication is based on an adversarial system not an inquiry system and the burden of proof is on the victim (worker) resulting in total confusion as to who has the burden of proof. After over one hundred years, no one knows who has the burden of proof. How can a claim be adjudicated when no one knows who has the burden of proof?
Questionably is why the Alberta Government does not enact legislation that provides the benefit of doubt to a worker rather than having the WCB BoD determine questions of law which they do not have jurisdiction. Providing a worker with the benefit of doubt when there are differences in medical opinions would make all claims that are supposedly complex, relatively easy as if there is a medical difference of opinion, rather to proceed to a MRP who in most or all cases are not world recognized medical experts and are simply providing more medical opinions that are not based on medical science, peer reviewed medical literature or medical consensus. According to the WCB BoD the benefit of doubt has to be based on medical fact which is not the proper or correct standard in workers compensation systems as medicine is not or rarely based on fact but is based mainly on speculation or in legal terms circumstantial evidence which is used in all legal proceedings but according to WCB cannot be used in adjudicating claims. If in fact the WCB Review Panel would zero in on the two primary problems that I have presented as to “who has the burden of proof both for and against” and “providing the benefit of doubt in all cases to workers when there was a medical disagreement”, everything else would be totally irrelevant.
Question 17 posed by the WCB Review Panel is an interesting question “Should an option be made available for workers to obtain additional coverage through the WCB? Why or why not?” Why would workers want additional insurance through WCB when WCB does not provide compensation now and is why there is a review as to why the system is not working. The question that should have been asked is “Should employers be mandated to provide private disability insurance that is not based on work related injuries. In my opinion this should be a no brainer as employers and workers at present pay for both private disability and WCB disability insurance (dual benefits) for all public employees and as well as WCB employees to ensure that if WCB denies their claim, then the private disability insurer will accept the claim and pay benefits without going through years of appeals. This being the case then all workers in Alberta should be covered under the same dual benefits as public workers and WCB employees.
