By Gerald
On Nov. 8 and 9th of 2016 we attended an in person hearing adjudicated by R. Fong who was the Hearing Chair, D. Jossa and J. McKenna who were Commissioners. On July 6, 2017, they presented a partial decision but as of this time ( 15 months later) we are still waiting for a full decision. Oddly enough, workers compensation according to the Supreme court of Canada, one of the fundamental principles of workers compensation is that compensation is paid to injured workers quickly, yet one of the claims goes back to 1973 and the other one to 1988. Also it is odd that the WCA provides statute of limitations for doctors, workers and employers but there is no statute of limitations on decisions made by a Case Manager, DRDRB or the Appeals Commission. A worker or employer could wait for decades to receive a decision from a Case Manager, DRDRB and the Appeals Commission which questions the SCC as to their belief that compensation is paid quickly.
In the claim at hand, the problem the Appeals Commission are having is attempting to explain why WCB and themselves were equating directly an impairment rating to a disability rating or loss of earnings without incriminating WCB, DRDRB and themselves. WCB, DRDRB and the Appeals Commission have known for decades that impairment ratings do not directly equate to a disability or loss of earnings, yet this was what all three of these bodies were doing despite the Alberta Court of Appeals decision (the Penny decision) that the WCA is specific to determining a disability or loss of earnings, not an impairment. This is explained at the beginning of the WCA Section 1(1)(u) which states in part; “pension” means a periodic payment to a worker in respect of whom a permanent disability has been assessed”. It does not state that a pension means a periodic payment to a worker in respect of whom a permanent clinical impairment has been assessed. This was not a mistake, rather it is criminal fraud and a Calgary City Police Commercial Crimes Unit made this decision. The Crown refused to lay charges more than likely at the direction of the Justice Minister who was of the opinion that this would most likely destroy the Alberta WCB if criminal charges were laid.
For convenience of understanding, I have attached in part a page from the AMA Guides to better understand the reference that is used in determining impairment. I attended a recent IME performed by Dr. Rocheleau (Physiatrist) on behalf of WCB. He was dumbfounded that a PCI rating for erectile dysfunction could result in up to a 15% PCI rating which WCB illegally equates to a disability rating and doing this results in a life time pension in the hundreds of thousands of dollars to workers despite a worker not having any loss of earnings. This is what would be like winning the lottery.
When referencing Table 1-2 only a moron would provide a life time pension to a worker who has no loss of earnings but has difficulty getting an erection, orgasm, ejaculation, lubrication, combing their hair, urinating, defecating to name a few difficulties in Table 1-2 which has got nothing to do with work or loss of earnings.
Not wanting to admit they had made a mistake and have to re-adjudicate thousands of claims, WCB, DRDRB and the Appeals Commission in collusion with the WCB Board of Directors decided to continue defrauding workers and employers and went to a dual awards system separating impairment with disability. Rather than use Section 56 of the WCA as they did prior to Jan 1, 1995 by illegally using impairment ratings and equating the impairment ratings to disability ratings, they separated impairment ratings and disability ratings with impairment ratings now coming under Section 69 of the WCA.
I have no idea when the Appeals Commission will address this issue of if they will continue to insist that an impairment, disability and loss of earnings can be used interchangeably despite the Alberta Court of Appeals decision that using impairment ratings a s a direct method of rating disability is not in compliance with the WCA and we will then have to take this to a Judicial Review based on an error in law. Obviously on Judicial Review, the Court of Queens Bench have no jurisdiction to over ride the decision of the Alberta Court of Appeals in the Penny case and any decision by the C of QB will be in our favor. Unfortunately, I cannot represent the worker due to the Legal Professions Act and the worker who has a grade 8 education will have to represent himself.
If the the Government provided workers though the proposed Fair Practices Office the right to represent workers, workers would not be forced to represent themselves and especially when most injured or disabled workers are blue collar workers who have no idea how to represent themselves before the courts or have any idea what the issues are and how these issues fit into the WCA, WCB policies and workers compensation regulations.
Section 69 of the WCA which is specific to impairment makes the award discretionary. Who gave WCB the right to change the historic agreement which was based on compensation for loss of earnings, not for impairments. Are employers aware that they are paying out millions of dollars to workers who do not have any loss of earnings but have difficulty getting erections, urinating, defecating, reaching an orgasm, combing their hair, brushing their teeth. I may get myself into trouble by suggesting that any award for an impairment should be stopped and employers be reimbursed unless they agreed to WCB providing millions of dollars in life time pension and lump sum payments for an impairment.
Upon review of WCB policy, there is nothing in policy that suggests that impairment ratings can or should be used s a direct method of rating a disability. At first I believed that the problem evolved from the WCB BoD who according to the WCA enact policies but further review resulted in the fact that WCB policy specific to the use of impairment ratings indicated that impairment ratings were to be used as a starting point as suggested by Mr. Carr, WCB legal counsel in the Penny case and agreed to by the Alberta Court of Appeal in assessing a disability. The AMA Guides stress this as being a very crucial point by stating that impairment ratings are a pre-cursor to a disability, not a final assessment of a disability. This is explained under WCB Policy 04-04 Part II Application 5 Question 1 which states in part and read correctly specifies that the first step is to assess an impairment and the second step is to assume whether there is an earning loss. If there is no assumed earning loss a worker receives nothing other than medical care if necessary. If there is an assumed loss of earnings, the assumed loss of earnings is based on each individuals unique circumstances which considers their age, education and prior work experience. The determination of a disability is usually determined by a certified member of the Fellow of the American Academy of Disability Evaluating Physicians who are trained experts in determining disability.
Policies & Information
Copyright 2017
All rights reserved
1. What is a Permanent Disability Award, and who is eligible for it?
A permanent disability award is a pension which includes
compensation for permanent clinical impairment “and”
assumed permanent loss of earning capacity resulting from
the clinical impairment.
The pension is based on a medical determination of the
extent of the compensable clinical impairment. WCB uses
the WCB-approved rating schedule (see Appendix D) as a
guide to determine the extent to which the compensable
clinical impairment impairs or may impair earning capacity,
and expresses that impairment as a percentage of disability.
WCB policy 04-04 Part II Application 2 Question 6 states in part;
6. How does WCB calculate the Non-Economic Loss Payment?
As the Non-Economic Loss Payment is not intended to
compensate the worker for lost earnings, the payment base
is the same for all workers, regardless of earnings. The
payment is paid as a lump sum, and is based on the degree
of permanent clinical impairment resulting from the
compensable injury.
Any one with any intelligence would ask, how could a PCI rating equate to a disability and loss of earnings one second before midnight of Dec. 31, 1994 and then one second after midnight on Jan 1, 1995, a PCI rating equates to NELP which is not intended to compensate the worker for loss earnings. Little wonder no one understands the “Act”, WCB policy and WCB regulations when WCB themselves have no idea of how to interpret their own policies.
Using impairment ratings as a direct method of rating disability results in further complications to the WCA specifically Section 42 of the WCA which presumes total disability with the loss of both feet at or above the ankle. Using logic, if A is equal to B, then B has to be equal to A. Using impairment and disability in place of A and B, if impairment is equal to disability, then disability must be equal to impairment. That being the case,, if a worker is totally disabled, then they have a total impairment.If you have a total impairment, then you are dead as death occurs when all bodily functions cease. A worker with a loss of both feet at or above the ankle is obviously not dead, so it is obvious that they are not totally disabled. Loss of both feet at or above the ankle is assessed 25% PCI rating for each lower extremity equaling a 50% PCI rating. When multiplied by 90% of net, a worker would receive a 50% permanent partial disability and yet according to the section 42 of the WCA the worker is totally disabled which means the worker has a 100% PPD, not a 50% PPD.
This is precisely what happened in the Yukon when the worker (Robbie King) suffered an injury to the head and was determined by WCB as being totally disabled and instead of paying compensation for permanent total disability, the “Board” paid him 70% PPD based on a 70% PCI. The Yukon SCC overturned the decision of the “Board” to pay him a 70% PPD and directed they pay him a total disability rather than a 70% disability pension.
With all of this evidence supporting the fact that a PCI rating does not equate to a disability rating, then why is the Government not directing that WCB comply with the WCA and legal precedence? It also would be fair to question why WCB Medical Services and WCB Legal Services are complicit in defrauding workers who clearly know that you cannot equate an impairment to a disability. WCB medical Services should have all their doctors licenses terminated and as well, WCB Legal Services should have all their lawyers licenses terminated.
There is no other body or individual that are allowed to make a mistake. If any body or individual makes a mistake, we are told that ignorance of the law is not a defense, yet WCB. DRDRB ad the Appeals Commission are allowed by the Government to make a mistake and not be held accountable. If I or any one else, gets drunk and kill or injure some one, we are not allowed to plead that we made a mistake. When workers are given the benefit of doubt in all cases, it is impossible to make a mistake as a person always errors on the side of the individual who is given the benefit of doubt.
Case Managers, DRDRB and the Appeals Commission are supposed to be experts according to the Courts. Experts don’t make mistakes and if a person who is supposed to be an expert makes a mistake, they clearly are not experts. In order to adjudicate a claim, a Case manger has to be an expert in law and medicine, the same for the DRDRB and the Appeals Commission.There are no Case Managers, DRDRB or Appeals Commissioners who are experts in law and medicine and it is far too easy for these people to deny a claim or benefits knowing that workers do not have the knowledge and financial capability to hire a person who is knowledgeable in law and medicine. In the Penny case, the Alberta Court of Appeals stated” Presumably the Appeals Commission have expertise in medicine, because most of the questions before it have a large medical component, and in other fields related to the assessment and valuation of claims”
The problem with the whole system is that no one including WCB, DRDRB or the Appeals Commission have any expertise in medicine and as well as law, the largest component in all claims involves the field of medicine. Because Case Managers, DRDRB and the Appeals Commission have no expertise in medicine, they in turn consult Medical Advisors who are not experts in medicine with many of them not even practicing medicine for decades and still provide medical opinions that date back to their early days of medicine and have since been corrected in medical journals which these doctors have never read.
The courts are not presided over by mechanics, painters, plumbers, brick layers so why would lay people with no expertise in law or medicine be allowed to preside over claims within the workers compensation system. None of this makes any sense at all but the Government continues to place band aids on fixing a system that is terminally ill.
The correct way of fixing the system is to consult with employers and workers and renegotiate a sick system and get back to the original system where workers receive medical care and lifetime earning loss pensions if necessary. If permanently disabled workers cannot return to their former job, train them to perform some meaningful job not simply provide assistance in how to write a resume, make phone calls etc. which is not cost effective at all as being able to write a resume or use proper telephone techniques will not result in a disabled worker getting a job over some one who is not disabled, has the experience and employers could care less whether some one can write up a better resume than another person. Studies in Ontario confirms that their approach in this manner was a waste of time and money.
