By Gerald
Thanks for the reply! The e-mail from your office and signed by you comes as a total surprise as no one wants to or has ever wanted to respond to me because I know far too much, and the questions I ask are too difficult to answer for any one or not wanting to answer the questions because these questions would lead to admittance of misfeasance in public office, abuse of power and bad faith. I believe in total transparency, open dialogue,and mediation which is a problem with the workers compensation system which operates in a vacuum, there is total lack of transparency, refusal to answer questions, bullying is a typical feature of the workers compensation system who use their power and financial capabilities to suppress workers with the assistance of Government who do everything they can to protect the sacred cow.
Workers compensation is based on a medicolegal system resulting in legislators not having a clue what they are doing, doctors not having a clue what they are doing and adjudicators not having a clue what they are doing. This is quite evident when reviewing Section 43 (1) and (2) of the WCA when impairment, disability and loss of earnings become intertwined. Section 43 (1) states that if a disability results from an accident, the evaluation of the worker’s disability shall be made on behalf of the “Board” by one physician and one claims adjudicator employed by the “Board”. Being that WCB defines disability in terms of an earning loss, a doctor has got nothing to do with determining an earning loss as that is a legal function not a medical function but being that disability is defined as an alteration of an individuals reduced capacity to meet occupational demands, this would be the function of a doctor by assessing work restrictions. Although the word “disability” is used, no one knows how to interpret Section 43 when impairment, disability and loss of earnings are involved. The WCA does not define disability or impairment so no one knows what a disability is. There is nothing in the WCA specific to an impairment or that WCB must provide compensation for an impairment which makes it discretionary as to whether WCB will provide compensation for an impairment. They do this based on Section 69 of the WCA. A person can have an impairment but may not receive an impairment rating as most individuals can perform simple basic activities of daily living when referenced to tables of normal even though they may have an impairment. A person can have an impairment rating and not be disabled. A person can be disabled and not have a loss of earnings. While this may sound complicated, it is far from being complicated. WCB complicates this by providing their own definition by equating a disability to a loss of earnings. There is no correlation between a disability and a loss of earnings as a person can be disabled and have no loss of earnings. Section 43 (2) of the WCA incorrectly implies that total disability occurs for total loss of the sight of both eyes, loss of both feet at or above the ankle etc. which is grossly illogical as this would imply that there is a total loss of earnings if a person lost both feet at or above the ankle if loss of earnings are equated to a disability.
No one makes changes to anything if they are not doing anything wrong whether it is based on their health, personal life or running a business. The change made by WCB on Jan 1, 1995 was a major change, not a minor housekeeping change as the change on Jan 1, 1995 resulted in using impairment ratings to determine a non economic loss , not an economic loss as was done illegally prior to Jan. 1, 1995. Coincidentally, all workers compensation systems in Canada did the same thing other than Quebec and NWT resulting in what is referred to as a dual award system which separates an impairment award (NELP) from a disability or loss of earnings (ELP). This obviously would to any reasonable person considered to be a cover up by all worker compensation systems and the provincial governments that allowed them to cover this up. This is why the Calgary City Police Commercial Crime Unit recommended pursuing criminal charges against WCB as after the Penny decision by the Alberta Court of Appeals found that using impairment ratings in determining a disability or loss of earnings was not in compliance with the WCA. This was in 1992 and was proceeded by a study by Dr. Emily Spieler et al in the U.S. in 2000 who determined that the workers compensation systems in the U.S. were illegally using impairment ratings as a direct method of rating a disability. The American Medical Association who sponsors the AMA Guides agreed with her. Having no way out, the WCB systems in the U.S. decided that they would not reassess each claim and would if a worker was aware of what occurred, reassess their claim based on a disability and not an impairment. Obviously, the Alberta WCB took the same position by hiding the fact that they were illegally using impairment ratings as a direct method of rating a disability and is why they went to a dual awards system.
Worse yet is when a disability is equated to an impairment which would be grossly illogical as if a person by statute was determined to be totally disabled due to the loss of both feet at or above the ankle and equated directly to an impairment, total disability would result in total impairment. Total impairment (100% PCI rating) is specific to a total loss of function which is death. Why would WCB pay a total loss of earnings to a live person when they are legally dead. My explanation is supported by the Alberta Court of Appeal, the Nova Scotia Supreme Court and the Yukon Supreme Court determining that impairment ratings cannot be used as a direct correlation to a disability. The Yukon Supreme Court decision is the easiest decision for lay people to understand. The worker, Robbie King was provided a 70% PCI rating for a severe brain injury and was determined by the “Board” to be totally disabled or a total loss of earnings, yet he was being paid a significantly reduced loss of earnings by multiplying his 70% PCI rating by 90% of net, thereby reducing his total loss of earnings that he was entitled to. Oddly enough, it was the Yukon WCAT who took this issue to the Yukon Supreme Court which questions why the Alberta Appeals Commission did not follow legal precedence based on the Alberta Court of Appeals decision or why our Justice Minister did not force WCB to rehear all claims where impairment ratings were used illegally to determine a loss of earnings.
I have reviewed the proposed statute (An Act to Protect the Health and Well-being of Working Albertans). While this may appear to some as being a step in the right direction, after over 24 years of fighting for workers and employers what is proposed in theory with legislative changes by people who have never been involved in the process will in practice never materialize. I base this on the last investigation by the Government which involved Justice Friedman and MLA Victor Doerkson who despite numerous findings of incompetency and incorrect decisions by both of them leading to findings of a culture of denial, nothing changed despite numerous recommendations provided by both Doerkson and Friedman. I tend to be pessimistic as to whether any changes will have any effect on how decisions are made. In my humble opinion nothing will change the way that claims are adjudicated as the same people who were making illegal and inappropriate decisions in the past will not change the way they make decisions in the future. I say this based on my own experience when reviewing claims on Canlii, reviewing claims from individual workers on request and as a representative in numerous claims right from the Case Manager through their supervisors, DRDRB, the Appeals Commission and Judicial Reviews, none of who know as much as I do about medicine and administrative law as it pertains to the workers compensation system. I do this for humanitarian reasons and not for personal gain although I have been offered money to assist workers, I am not doing any of this for personal gain. Workers compensation can be compared to cancer where every one knows some one who has been diagnosed with cancer which is a frightening and terrible disease and when compared to workers compensation, every one knows some one, generally a relative or close friend whose lives have been ruined by WCB and the Appeals Commission, often times resulting in suicides, broken homes and poverty. That was never the intentions of the Meredith Principles which was to protect workers not to cause harm.
A notable change that is found in the preamble is well worth commenting on as it defines very well what the whole system was founded on and that was to protect and care for workers not to protect employers from litigation, criminal charges or the excessive costs of caring for workers which only they can control but because of the increased costs of safe work places, choose not to ensure the safety and well being of workers. Workers compensation was never intended to be used by Governments to deliberately and with malice enact legislation to reduce premiums to entice business to relocate to a province with lower workers compensation premiums. Unfortunately for workers, this has been happening as evidenced by the high number of denied claims and reduced or eliminated benefits. Whether the people who adjudicate claims will change their mindset and start accepting more claims and provide the benefits that workers are entitled to, time will tell. Compared to other provinces, Alberta has one of the highest number of denied claims which questions the integrity, honesty, fairness of the people who were selected by Government that are in the Appeals Commission. The change to the preamble is as follows;
Preamble
WHEREAS the workers’ compensation system in Alberta is founded on the principles of no-fault compensation, security of benefits, collective liability, independent administration and exclusive jurisdiction;
WHEREAS the purpose of the workers’ compensation system is to provide appropriate compensation to workers who suffer workplace-related injuries and illnesses;
WHEREAS the central focus of the workers’ compensation system is the health and well-being of workers;
WHEREAS it is recognized that the success of the workers’ compensation system requires a commitment by all parties to work collaboratively with each other;
WHEREAS it is recognized that the workers’ compensation system must be sustainable, affordable and fair in order to benefit workers and employers now and in the future;
THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:
The system as it exists today is to care for workers with minor acute injuries that result in total recovery. It was never designed to care for workers who suffer injuries or illness where the cause is unknown and progressively gets worse rather than better. Doctors are at a loss as to what caused the accident or illness and rather than admitting that they have no idea what caused the injury or illness provide in most cases an opinion that is not accurate or based on medical evidence, have no idea how to treat the patient, provide opinions based on what little they know, leading to confusion by adjudicators who then make decisions that defy medical science. When these doctors are reported to the College of Physicians and Surgeons, the CPSA in their reply state that if an adjudicator is dumb enough to accept the opinion of a doctor, that is the problem with the adjudicator, not the doctor as the doctor is entitled to their opinion even if the opinion is incorrect. Knowing what I do, I agree with the CPSA. Rather than error on the side of workers in these scenarios, adjudicators who are not medical experts in most or all cases, deny a claim or benefits. Workers are then left to fend for themselves and become a charge on family, friends and society which was the whole intent of the Meredith Principle hoping to avoid this.
Prior to the proposed enactment of the Act to Protect the Health and Well-being of Working Albertans, I believe there are other parts of the WCA that have to be rescinded, changed and also force WCB and the Appeals Commission to comply with the laws that have existed for over hundred years although I do not see them complying unless they are forced to by enacting plain and simple language within the WCA that they can understand and if this is not done they will continue to ignore the law as they have done for decades. In reality, the Government should fire every one as proposed by a former MLA, Richard Magnus which would include the WCB BoD, President of the WCB and all the Directors, Supervisors, Case Managers, DRDRB, Chief Appeals Commissioner and all the Appeals Commissioners who were and are responsible for the culture of denial. When an Appeals Commissioner has to be told that adjudication is based on an Inquiry system and that workers by statute do not have any burden of proof and this results in a heated argument, obviously the Appeals Commission do not understand that unlike other administrative bodies, the workers compensation system is totally different. I argued this with an Appeals Commissioner Chair by the name of Donna Maxwell who is a full time commissioner, since May 1, 2006 and her annual salary is $141,429.39. She also receives benefits such as paid vacation, Group Life insurance, Alberta Health Care Insurance, Prescription Drug Plan, Extended Medical Plan and Dental Plan, probably bonuses for denying claims and benefits and yet this woman is still employed by the Alberta Government when she does not understand that workers have never had any burden of proof when filing a claim. Having been a Chair for 12 years, how many claims have been turned down by her based on ignorance of the enabling statute that makes it illegal for any one other than the “Board” to investigate every claim and gather the evidence to support a claim or to deny a claim. She is not the only one as the last in person hearing I attended, the Chair was Rodney Fong whose annual salary is or was $146,718.52 who had been a hearing chair since 2009 who has problems reading legal documents and legal precedence. We argued about how impairment ratings do not equate to disability ratings which based on legal precedent cannot be used directly and this can be affirmed by reading the decision of Alberta Court of Appeal in the Penny case. I attempted to explain to him that increasing an impairment rating has no effect on a disability rating or loss of earnings. An example I use quite frequently is if a worker suffers a work related injury and is assessed a PCI rating and later is diagnosed with an erectile dysfunction that has a causal relation to the work related injury and would increase an impairment rating by up to 15%, it would be grossly illogical to increase a workers PPD because the worker had difficulty getting an erection. Mr. Fong could not understand any thing I was saying and advised me that if I was not satisfied with the Panel’s expertise, I was free to leave. Mr. Fong’s understanding of the proceedings in the Penny case by the Alberta Court of Appeal was that the Alberta Court of Appeal had overturned the decision of the Court of Queens Bench who determined that impairment ratings cannot be used as a direct method of rating a disability which was appealed by the Appeals Commission and WCB to the Alberta Court of Appeals. Read correctly, the Alberta Court of Appeals upheld the decision of the Court of Queens Bench who determined that the use of impairment ratings rather than disability ratings to determine loss of earnings was not in compliance with the WCA and both the Appeals Commission and WCB lost their appeal. This should have resulted in every claim having to be re-heard and workers paid a lifetime pension based on a disability not an impairment to comply with the WCA and the legal precedent set by the Alberta Court of Appeals decision determining that impairment ratings cannot be used as a direct method of rating a disability as impairment ratings do not and never have rated work as a reference in determining a disability or loss of earnings.
Notably through review of the enactment of the revised statutes effective Dec. 15, 2017 is that the Appeals Commission is after three and a half months not in compliance with Section 13.2 (12) of the revised WCA that directs them to publish on it’s website copies of its decisions. They continue to publish their decisions on Canlii which based on the WCA is illegal. I would suggest that this be corrected immediately or change the WCA Section 13.2 (12) to allow the AC to publish their decisions on Canlii. Perhaps you could explain what I consider to be a perplexing problem that does not make any sense which is protecting the identity of workers, employers, Case Managers, DRDRB, Supervisors and Doctors. I posed this question to Justice Friedman when I was one of his advisors during his investigation and he was of the opinion that in order to be fully transparent, this should be done. When reviewing Appeals Commission decisions it is very important for every one to know who participated in the claim to know who the individuals are. This would allow the general public to track every decision made by a Case Manager, Doctor, DRDRB, Supervisors to track their decisions as a means to determine bias. At present I can track every individual Appeals Commissioner’s decision by inputting their name and I am able to determine which AC is more likely than not to deny or accept a claim. This protection seems totally illogical as if a case goes to the courts, the courts do not protect any one’s identity. Not identifying these individuals questions what the Appeals Commission are attempting to hide.
An example of how grossly illogical it is to equate an impairment to a disability can be found within a claim that I have had the privilege of representing a worker. The worker was injured in 1973 at the age of 24 years, requiring emergency back surgery when he slipped on ice, fell on his rear end resulting in a fragmented disc at L5-S1, and severing the sciatic nerve resulting in major ongoing complications to his right lower extremity. At the time of his injury, he was making approximately around $14,000.00 annually which was a very good wage in 1973 as the MIE by WCB in 1973 was $7600.00. In 1973, net earnings according to WCB policy was 75% of gross earnings resulting in net earnings of $5700.00. WCB Medical Advisors assessed his permanent clinical impairment at 7% PCI. Using impairment ratings as a direct method of rating a disability resulted in multiplying 7% by $5700.00 equals $399.00 annually paid as a PPD. This equals $33.25 a month to support himself, his wife and his young daughter. He also was not paid an ELS. Obviously this is a contravention of Section 7 and 12 of the Charter specific to security of the person and being punished by WCB for having an accident by going from a well paying job and forcing him into poverty which the Meredith Principles were supposed to avoid. Paying a disabled worker $33.25 a month is an insult and obviously was condoned and supported by the Government. This is why long standing claims must be reheard and restitution made.
Some of the claims I have been requested to review questions the mentality of adjudicators. A worker put in a claim under policy 03-01 Part II App. 6. He underwent a psychiatric assessment by a WCB Psychiatrist and was diagnosed with major depressive disorder which according to the Psychiatrist was caused by WCB in their inhumane and unfair treatment of the worker. The claim was denied because WCB policy specifies that the MDD must be caused by an emotional reaction to a work related disability and not the inhumane treatment by WCB. Common sense and logic would or should result in the acceptance of the claim as based on the “but for test” and balance of probabilities, had it not been for his injury and subsequent disability, he would have never been exposed to the inhumane and unfair treatment by WCB. This same worker in the psychiatric report by the WCB Medical Advisor told the Psychiatrist that he had homicidal thoughts of going into a WCB office and cutting off all their heads with a samurai sword. This is another of the thousands of long term claims that have been illegally denied and rather than honoring the commitment of the former Conservative Government by rehearing long standing claims, the NDP are turning a blind eye to the injustices caused to workers by not rehearing long standing claims. Little wonder many workers have told me that if they could get away with it, they would kill the people who have ruined their lives. After the Patrick Clayton incident and reading various news forums, workers considered Mr. Clayton to be a hero rather than a criminal in doing what workers wanted to do but were afraid to do. It seems that our laws will allow a person to use lethal force to protect property but will not allow workers whose lives have been ruined to use threatening action to bring attention to the destruction of lives by WCB. People fail to remember a worker by the name of Gregory Jacks who picketed the Calgary WCB with no intervention by Government and then several days later he placed a shotgun in his mouth and blew his head off. After committing suicide, WCB apologized to his family for their inhumane treatment of him. No one was charged for the inhumane treatment of Mr. Jacks, there was no public inquiry, no judicial inquiry and life went on for WCB and the Government.
No one seems to understand how claims are supposed to be adjudicated when it involves who has the burden of proof when gathering evidence which is what all claims are based on. When reading the WCA, it is obvious that the “Board” has the entire burden of proof, both for and against as intended by the wording of the statute, specifically addressed by Section 17(1) of the WCA which gives the “Board” exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions. The “Board” also has the same powers of the Court of Queens Bench by statute and also all the powers under the Public Inquiries Act. This was noted by Justice Millar in a case I took before the Courts who determined and explained to WCB and the Appeals Commission Legal Counsel who were attempting to convince him that workers had the burden of proof. Needless to say, WCB and the Appeals Commission lost and we were awarded costs and disbursements. It is apparent that all claims have been adjudicated based on WCB and the Appeals Commission illegally placing the burden of proof on workers contrary to Section 17(1) of the WCA. This is supported by the fact that when a claim has been denied, it is the worker who is forced to break the law by providing new evidence that was not provided by WCB prior to the appeals process. Worse yet is when the Appeals Commission in their rules of procedure, state that any new evidence that is illegally provided by a worker, with due diligence the evidence could have been presented during the appeals process. Why would the Appeals Commission allow any worker to break the law by providing new evidence when the WCA provides exclusive jurisdiction only to WCB to gather evidence unless the Appeals Commission are ignorant to the fact that workers do not have any burden of proof and all evidence must be gathered by the “Board” Carrying this further, the Appeals Commission are bound by statute and policy, yet WCB claims that a claim is never ended and the Appeals Commission in their rules of procedure disregard WCB and place a 6 month statute of limitations on reconsideration’s and refuse to hear any new evidence after that date. Although the statute now does not allow variable pay for employees of the “Board” specific to bonuses to employees of the “Board”, the “Board” did pay bonuses to employees who were receiving bonuses and incentives for meeting objectives and terminating claims. WCB and the Appeals Commission have been and continue to use impairment ratings as a direct method of rating a disability despite the Alberta Court of Appeal determining that impairment ratings cannot be used as a direct method of rating a disability which is also supported by the American Medical Association. This issue will be going to Judicial Review sometime this year. When any one breaks the law, it is my understanding that they will be persecuted but if the “Board”, Appeals Commission, WCB doctors break the law, it is considered to be an honest mistake. If a worker makes an honest mistake by not following protocol because of not understanding what I consider to be a convoluted and ambiguous process, they cannot claim to have made an honest mistake.
Most claims are similar or identical and decisions should be consistent based on the same rationale. This does not happen as when reviewing different Appeals Commission decisions, the same or identical injury or illness, the same or identical risk factors are present and yet decisions differ from one group of Appeals Commissioners to the other. Oddly enough, all decisions made by Appeals Commissioners are unanimous which questions the abilities of the Appeals Commissioners as decisions made by the Alberta Court of Appeal and the Supreme Court of Canada are never always unanimous which questions the appeals process in Alberta. Notably in other provinces, WCAT decisions are at times based on a majority with one of the WCAT members dissenting. Any one with any common sense would question how this can happen which raises a reasonable apprehension of bias or bribery.
In Canada, all persons are supposed to be treated equal under the law and before the law through human rights legislation and the Charter, yet Governments pass legislation that provides differential treatment for some occupational groups and not for other occupational groups. You cannot pass laws providing laws specific to presumption for first responders and not provide the same protection for other occupational groups, no matter what supporting evidence there is as the same evidence supporting other occupational groups has to be used for them. For example: In 2002, the NAS were tasked with determining whether all musculoskeletal disorders were caused by work related bio mechanical multi factorial factors in the workplace. Over a hundred specialists throughout the world attended and determined that all MSD were caused by work related factors that included repetitive tasks involving force and repetivity, cold temperatures and vibration, yet assembly line workers who have over twenty times the risk of being diagnosed with upper extremity injuries have and never were given presumptive status as opposed to first responders who only have 2 times the risk of of certain cancers and myocardial infarction which when comparing any occupational group to the general public will result in doubling the risk as the majority of the general public is comprised of children. If in fact adjudication was based on the Inquiry system as it is supposed to be and first responders were given the benefit of doubt, first responders would like every other worker had their claims accepted based on a balance of probabilities without having to prove that their cancers or myocardial infarctions were work related. Proving causation or proving contrary is the sole responsibility of the “Board” and not workers and employers.
I don’t know who the Alberta Government uses as legal advisors, but when there are certain issues involving equality rights to individuals, this become a Charter issue. Governments must be aware when enacting laws that are effective on a certain date that excludes workers whose injuries occurred prior to that date. This is noted when after the SCC determined that chronic pain be recognized and benefits paid (Martin/Laseur case) , the Government of Nova Scotia enacted the chronic pain regulations effective after the SCC decision and was struck down by the Nova Scotia courts as being a violation of the Charter by ignoring other chronic pain sufferers whose injuries occurred prior to the effective date of the chronic pain regulations and the Courts directed that the effective date had to be the date that the Charter became effective. Based on legal precedence I advise the Government to avoid having to go to court and attempt to explain why they would enact legislation that did not include workers whose injuries occurred prior to any enactments. Notably also is that most WCB policy is based on effective dates and depending on the effective date, any policy changes can be illegal.
A good example would be that prior to June 1, 1996, WCB clawed back workers CPP disability benefits and after June 1, 1996, they enacted policy stopping these claw backs but continued to claw back all workers CPP disability pensions whose injuries occurred prior to June 1, 1996. Of note also, that on Jan. 1, 1995, WCB realized that impairment ratings cannot be used as a direct method of rating a disability and secretly and quietly separated an impairment rating from a disability rating by enacting policy that would use PCI ratings to determine a NELP, eliminated the ELS and replaced the ELS with an ELP. Rather than admitting to making a mistake by using impairment ratings as a direct method of rating a disability and converting the PCI rating to a disability rating by taking into consideration a workers age, skills,education, job history, adaptability, environment requirement and modifications which is the correct method of rating a disability and paying lifetime pension benefits based on these factors, WCB continued to use impairment ratings as a direct method rating disabilities resulting in defrauding employers of millions of dollars by paying lifetime pensions to workers who were not disabled and had no loss of earnings and under paying workers who were assessed a small PCI rating and multiplied by 75% of gross or 90% of net earnings resulting in defrauding workers who were unable to perform any gainful work by paying lifetime pensions that were grossly inadequate. WCB’s answer to this is that they may pay an ELS which is not a life time pension but ends at age 65 and is subject to ad hoc reviews, deeming and as well as claw backs of CPP disability pensions. If an ELS was paid, WCB subtracted the PPD pension from the ELS and if a worker was unaware that they could file a claim for an ELS, WCB would not advise them. COLA also was not applied to an ELS until May 24, 2005 by the WCB BoD.
The Government also may assist workers by changing in part the “Legal Professions Act” by allowing people like myself to represent workers in the courts which I would do either for nothing or simply to cover my costs, specifically on Judicial Reviews/Appeals as if a workers representative is qualified to represent a worker throughout the appeals process, they clearly are capable of representing a worker in a Judicial Review/Appeal. There is no reason why the Fair Practice Office would not have their own in house lawyers to represent workers or employer on Judicial Review either. I am far more qualified in the area of workers compensation and human rights than any lawyer in Alberta and I say this because I was advised by Sandy Hermiston (Appeals Commission former Legal Counsel) prior to a Judicial Review that she had never lost a case on Judicial Review. When we went to court, she made the mistake of letting me represent a worker in court and lost. After losing, both the Appeals Commission and WCB on subsequent Judicial Reviews have advised the Court that if the Court allowed me to represent any one, even family members, they would appeal any adverse decision to the Alberta Court of Appeals based on a question of law (Contravention of the Legal Professions Act). This basically results in a worker having to represent themselves which in most or all cases having workers representing themselves without any understanding of the issues, how to argue their case and not being able to contradict WCB and the Appeals Legal Counsel from spewing lies and incorrect interpretations of the law and resulting in the Court ruling against the worker which has happened already. Many workers will go into debt to hire fake lawyers or advocates who convince the workers that they are experts in workers compensation law, take the workers money and then loses the case based on their own ignorance, leaving workers deeply in debt and no further ahead than before they hired a lawyer or advocate. Perhaps the Government through legislation or through the Fair Practice Office would consider having all workers requesting Judicial Review be represented by competent legal counsel and paid out of the accident fund just as WCB and the Appeals Legal Counsel are paid out of the accident fund to represent WCB and the Appeals Commission. This would create a level playing field rather than the bullying effect that exists today.
The WCB Review Panel made a major mistake by not reviewing some of the more obvious errors or mistakes made by adjudicators by reviewing individual claims that would have given a greater insight into what is wrong with the whole system rather than deal in generalities that provide little information as to what is wrong with the whole system. This was the method used by Justice Friedman who did use individual claims to come to his conclusion that the appeals system does not work and there was a culture of denial. The Government by selecting the latest WCB Review Panel chose people who had very little experience in how to perform an investigation into what is wrong with the system by having town hall meetings with people who attended who had very little insight into what is wrong with the system. More often than not reviewing one or several individual claims will be more beneficial in determining what is wrong with the system than reviewing a hundred or more claims which contain very little information to be of any assistance.
1. Section 1.1 (n) where the word “invalid” is used and followed by the words “gainfully employed” . No one knows what an invalid is and the meaning of “gainfully employed” and yet a worker can be determined by WCB to be capable of work that would not be considered to be “gainful employment. For example: Numerous workers qualify for CPP disability and AISH and yet do not qualify for workers compensation benefits. That does not make any sense at all. Gainful employment is gainful employment whether interpreted by WCB, Services Canada or Alberta Social Services.
2. Section 13.1 (1)(d) should be rescinded and allow the Fair Practices Office to review and make the final decision regardless of whether a decision has been made by WCB, DRDRB, Appeals Commission or a Medical Review Panel. To ensure fair practice, the government must ensure that the people selected in the Fair Practice Office are very well qualified, will thoroughly investigate each claim that is brought before them, arrange in person conciliation processes especially when it involves doctors as doctor’s tend to overestimate their qualifications when in fact most local doctors do not and never will attain the position of having international recognition as being a world class expert. It is not overly difficult to contact world class medical experts who do and based on my own experience will likely respond to e-mails which before I argue a case, I ensure that I have the facts from medical experts rather than run of the mill local doctors. I receive better and more accurate medical information from world class medical experts than I do with local medical doctors who quite simply attempt to diagnose and treat injuries and diseases but have no experience involving medical studies specific to providing a correct diagnosis, proper treatment and the cause of the injury or disease. This obviously is the weakest link in the claims process where doctors provide medical opinions that when researched by a competent person or the medical details presented to a world class medical expert results in total disagreement with local doctors.
3. Subsection 13.1 (10) is ambiguous in the fact that in nearly all cases there will be conflicting evidence and especially so when medicine is involved as medical opinions are rarely based on what is considered by law to be medical evidence. Enacting Subsection 13.1(10) in theory was a good idea, however WCB in changing policy 01-03 to comply with Subsection 13.1(10) still places the burden of proof on the worker which is not in compliance with Section 17(1) of the WCA and their own Policy 02-01 Part I which is supposed to place the entire burden of proof on the “Board” both for and against. This has always been a fundamental right of workers to have the “Board” have the burden of proof based on an Inquiry system but over time has evolved into an Adversarial system that places the burden of proof on the worker which mirrors civil law and not the system that was supposed to evolve from the Meredith Principles. Within the context of Statute 13.1 (10) it states in part “if the evidence in support of the opposite sides of an issue related to a claim for compensation is approximately “equal” unfortunately this is decided by lay people who have no idea what is considered to be equal. The word “equal” and the word “reasonable” is and can be totally confusing as what one person believes is equal or reasonable, another person disagrees. For example: If a primary care doctor states that a worker cannot perform any work and a WCB Medical Advisor who has never examined the worker states that the worker is capable of sedentary work, whose opinion is more compelling or is this considered to be equal evidence and reason to have this sent to a Medical Panel. When one doctor states that the cause of a disease or injury is idiopathic and another doctor provides what he/she considers to be a causative factor based on their own experience and medical literature, would this be considered to be equal evidence when one doctor does not know the cause and another doctor presents his/her opinion as to what he/she considers to be the cause and the Appeals Commission determines that not knowing the cause is more compelling than knowing the probable cause and denies the claim.
I must admit that some of the changes to the WCA are good changes such as the Fair Practice Office which if given the power to enforce instead of being a toothless tiger to do nothing more than making recommendations, then it is useless. Rather than provide presumptive status for first responders for PTSD, the NDP have provided presumptive status to all individuals for PTSD and should enact presumptive status for all claims and force WCB to prove contrary. The formation of an Occupational Disease and Injury Advisory Committee is a god step as most if not all criteria specific to occupational diseases and injuries is so far out of date that it is dumbfounding that the criteria is still used to deny claims. For example: in the Alberta Regulations in Column 1 item 8 of Schedule B, Vascular disturbance of the extremities and cause In column 2 being the use of vibratory tools. It has long been acknowledged by medical researchers that vascular disturbances of the extremities occur when a worker by constant bending of the wrist when performing high force work reduces the blood supply to the carpal bones leading to micro fractures and resultant osteonecrosis of the carpal bones, mainly the scaphoid and lunate. The BC WCAT also determined that standing for long hours will effectively cause vascular disturbance of the lower extremities leading to varicose veins and deep vein thrombosis and accepted a claim for this. Good decisions such as this are not made by the Alberta Appeals Commission.
Carrying on with my review, both WCB and the Appeals Commission have had for decades a code of rights and conduct presented on their web pages but have never complied with their own code of rights and conduct as witnessed by the fact that every investigation has determined that the system is not working so adding this now to the “Act” is a joke. Many of the changes to the WCA are superficial and has nothing to do with the claims process involving workers. In fact the WCA contains very little in the sections that is specific to workers with most of the sections having no effect on workers. The word “may” is used when the word “shall” should be used as far too many sections of the WCA provides discretion to individuals who do not use their discretion in appropriate circumstances such as the proposed Section 46.4(1) which gives absolute power to the Medical Panels Commissioner to request a case conference which should be mandatory when there is a difference of medical opinion. I presume that the “Fair Practice Office could overturn a decision of the Medical Panels Commissioner if there is a difference of medical opinion and direct that a conference be called. I commend the proposal to increase from $900.00 a month to $1640.00 a month for PTD and PPD which has remained constant at $900.00 a month since before 1981 which questions what the former Conservative government were doing to ensure adequate compensation to disabled workers. I also commend the Government for proposing to increase the dependent child payment from $165.00 a month to $420.00 a month and from $83.00 a month to $420.00 which again questions why the former Conservative Government did not change the dependent child payment of $165.00 a month and $83.00 a month which has existed since prior to 1981. Section 60.1 (1) of the proposed changes to the WCA is rather useless as WCB has through policy the existing right to pay a worker a pension past the age of 65. The formula for this to pay a worker an annual post retirement benefit is A times B times 2% where A is the average ELP and B is the number of years compensation benefits were paid for an ELP to a maximum of 35 years multiplied by 2%. The problem is that it is rare for any worker to receive an ELP at all which is a major problem in all provinces. In theory this sounds wonderful but in practice, very few workers ever receive an ELP and if an ELP is not received, workers receive no annual post retirement benefits. A worker from B.C sent me information on how many workers in B.C. were receiving post retirement benefits and out of the thousands of disabled workers, if memory serves me correct, there was only 10 workers.
I have had a claim denied illegally because the worker was diagnosed with bilateral idiopathic avascular necrosis (Preisers Disease) of the scaphoids caused by occult fractures due to repetitive trauma over prolonged periods of time. The work environment was investigated by an Ergonomist from Alberta OHS who provided WCB and the Appeals Commission with an ergonomic assessment supporting the fact that the work performed was extremely repetitive, performed at extremely high force resulting in occult fractures to both scaphoids due to repetitive overloading of the scaphoids that were not picked up by x-rays and developed into avascular necrosis. Despite this evidence and supported by WCB’s own Medical Advisors as to a causal relation (an Orthopedic Surgeon and a Plastic Surgeon) the claim was turned down by the Appeals Commission. These doctors also were supported by the National Academy of Science and rejected by the Appeals Commission despite supporting medical evidence also by both Dr. James-Ashton-Miller and Dr. David Fyhries both international recognized bone experts in bio-mechanics along with medical literature written by Dr. Resnick who is the author of the Journal of Bone and Joint Disorders. Oddly enough, the Appeals Commission accepted a claim for idiopathic avascular necrosis of the lunate (Kienbocks Disease). I also have had a claim denied through all levels of appeal based on whether trauma can develop into post polio syndrome. A WCB Medical Advisor provided knowingly false medical opinion stating that trauma cannot cause the development of PPS. I consulted with two of the worlds leading experts to determine if trauma can lead to the development of PPS and they both responded by stating yes, trauma plays a major role in the development of PPS, yet the claim was denied based on the opinion of the WCB Medical Advisor who has never treated or diagnosed a person with poliomyelitis or post polio syndrome. As well and recently during an IME, A WCB Medical Advisor (Physiatrist) also supported that trauma does lead to the development of PPS. This is the reason why Section 157.1 specific to long term claims must be honored and workers who have had their claims illegally denied by lay persons despite medical evidence supporting the claim reheard and not simply turn a blind eye as did the former Conservative Government who were lobbied by the Alberta Chamber of Commerce to not proceed with long term claims and most likely certain members of the Conservative Government were paid bribe money to not proceed. If this is not an option, then provide or enact legislation or regulations allowing the Fair Practice Office to review long term claims and overturn the inappropriate decisions made by WCB, Appeals Commission and Medical Panels.
Basing this on my own extensive experience in the claims process, I have always contacted world class medical experts based on their well published and peer reviewed articles that I have read in the medical Library at the Foothills Hospital and used their responses to my questions and these responses when presented were totally ignored by Case Managers, DRDRB and the Appeals Commission. To name a few; Dr. James-Ashton Miller, Dr. David Fyhries, Dr. Richard Bruno, Dr. Lauro Halstead, Dr. Linda Cocchiarella, Dr. Gunnar Andersson, Dr. Chris Brigham and despite their supporting responses, their expert opinions were ridiculed by Case Mangers, DRDRB and the Appeals Commission who placed more weight on WCB Medical Advisors medical opinions who could not come any where near the expertise of any of these well respected and acknowledged world class experts. If in fact any of these WCB Medical Advisors were subpoenaed along with the world class experts I have mentioned to attend an in person hearing which should be the way any medical difference opinion should be handled rather than though a Medical Panel made up of more often than not of incompetent local doctors who under cross examination would have to admit that they were not quite as well qualified as they thought they were.
Decisions are supposed to be based on a balance of probabilities which is a legal requirement but have over time changed to medical opinions and the involvement of the medical profession who despite the decision of the Supreme Court of Canada cited as British Columbia (WCAT) v. Fraser Health Authority determined that decisions should be based on common sense and logic rather than medical opinions or non existent medical literature, neither supporting or denying causation. Unfortunately numerous medical journal are written by ghost writers who are lay persons who should have been checked out by the Journal Editors before being included in the journal.
Despite the SCC determining that chronic pain must be recognized and equal benefits must be provided, WCB still does not recognize and provide equal benefits to workers who have been diagnosed with chronic pain. The Alberta Guides do not provide a PCI rating for chronic pain and it was not until the AMA Guides 6th Edition were used that a PCI rating of up to 3% was used to assess chronic pain but if a doctor does not defer to the AMA Guides 6th Edition, a worker does not receive any PCI rating for chronic pain which is not in compliance with the SCC. Ms. Ganley and previous Justice Minster’s were and are aware that the Alberta WCB do recognize chronic pain but do not provide a PCI rating or earning loss benefits for chronic pain. They only consider providing treatment for chronic pain according to WCB policy and this can be verified by Appeals Commission decisions. In order to receive full compensation benefits, workers have to be diagnosed with chronic pain syndrome according to WCB Policy. Occupational diseases are especially difficult to assess causation as double blind studies are very expensive resulting in many work related injuries and diseases being denied due to unknown causes rather than to give the benefit of doubt to workers until such time medical science are able to determine causation. Question is, if medicine is a science, then there would not be a medical difference of opinion. When there is a medical difference of opinion and the doctors cannot reach a unanimous medical decision, would the worker then based on statute, be provided the benefit of doubt.
Much of this dissension involves medical opinions. Medical Panels could be avoided if during the claims process, a Case Manager, DRDRB or the Appeals Commission through statute be forced to subpoena the dissenting doctors to attend an in person hearing to be cross examined as to where they got their opinions from and their attendance be paid for out of the accident fund. Both WCB and the Appeals Commission though statute have the power to subpoena the doctors but will not subpoena anyone unless a worker or employer pays conduct money which for some illogical reason the Appeals Commission believe that the Alberta Rules of Court (Rule 5.40 (3) apply to the workers compensation system where they continue to refer to a worker as being a plaintiff and according to their sick minds, the Alberta Rules of Court direct them to have the worker or employer pay doctors to attend in person hearings. There is a big difference between a plaintiff who initiates an action and a worker who files a claim and in my humble opinion when a plaintiff initiates an action, they should pay for an expert witness. How the hell can an unemployed disabled worker or a small employer afford to pay a doctor or doctors to attend and be cross examined when the going rate for a doctor is approximately $700.00 an hour. Furthermore, the Alberta Court of Appeal cited as (Johnson v Alberta Appeals Commission for Alberta Workers Compensation 2011 ABCA 345) has directed in their decision that in the interests of justice, cross examination is a fundamental right of all workers and costs should not be a hindrance to the worker’s right to have witnesses testify and cross examined under oath. Common sense and logic for any normal person would be that the Alberta Rules of Court do not apply in the workers compensation system and subpoenaing witnesses such as doctors would enable and benefit decision makers to reach a fair and honest decision. There is very little use for documentary evidence in any system as documentary evidence can be falsified, biased which in most cases in the workers compensation system, any documentary evidence is false and totally misleading and the people providing the evidence are never held accountable.
The WCA still requires changes that should be made. From first hand experience with Judicial Review/Appeal, the WCA has to be changed to allow the courts to have deference on mixed fact and law, rather than on jurisdiction and law as it is a well known fact that the Appeals Commission do not have the knowledge and expertise in determining questions of fact, being that none of the Appeals Commissioners are medical experts and most all decisions are based on medical opinions. WCB rarely if ever investigates any claim as according to a former MLA in charge of WCB, Clint Dunford, it is too expensive to investigate a claim, thus resulting in not getting any facts and the claim is adjudicated on nothing more than speculation. Being that the burden of proof has been illegally placed on workers and to avoid future problems, I recommend that Section 24 (4) of the WCA be rescinded and changed to; If the personal injury or death of a worker arose out of employment unless the contrary is shown, it is presumed that it arose out of employment, and if the personal injury or death occurred during the course of employment unless the contrary is shown, it is presumed that it arose during the course of employment. This change would essentially place the burden of proof on the “Board” where it was supposed to be placed for the last hundred years. It also would allow the Government to rescind presumptive status for first responders and avoid any future court cases specific to differential treatment that provides special treatment for some workers and not for other workers. A recent study has determined that workers exposed to high levels of noise may result in high blood pressure and high cholesterol levels which would if all things being equal result in presumptive status for workers exposed to noisy work environments who are diagnosed with high blood pressure or high cholesterol. An ongoing problem in the U.S. and also Canada has been going on for decades with Beryllium and it’s known carcinogenic effects and despite the evidence that supports that it poses a great risk to workers which has been known since the early 1950’s there is a reluctance by the American Government to protect workers from it’s harmful effects. This occurs all the time as the cost to employers to protect workers cuts into their productivity and profits at the expense of workers health. In other words, the Government and employers are more concerned with protecting the employer from excessive costs to protect workers rather than protect the workers who can be replaced at very little cost if they get sick or die.
The WCA also has to be changed so that when a worker has a Judge rule in the workers favor, that the claim is not sent back to the same body (Appeals Commission) that denied the claim which is a violation of the Principles of Natural Justice by having the same body adjudicate a claim that they had judged previously. Any decision made by a Judge in the worker’s favor, should result in the Appeals Commission having to appeal the Judge’s decision to the Alberta Court of Appeal based on errors in law or jurisdiction by the Court of Queens Bench Judge. I represented a worker on Judicial Review/Appeal and the Judge ruled against the Appeals Commission and WCB but because of the WCA, was forced to send the claim back to the Appeals Commission with directions. The Appeals Commission disregarded the Judges directions, and again denied the claim which prompted us to have to file another Judicial Review/Appeal where a different Judge advised us that he did not have to agree with the first Judge which in essence brought the justice system into disrepute. Had the Appeals Commission had to appeal the first Judge’s decision to the Alberta Court of Appeal, they would have lost.
In closing, I believe that the Government should offer a formal apology to workers who have been injured and disabled for the grievous and inhumane harm we as a society have caused workers by electing public officials who have forced workers into a corrupt system and they in turn appointing bodies and tribunals to oversee the system, causing more harm than good and clearly have abused workers, destroyed their families, destroyed their livelihoods, causing mental and emotional problems leading to suicidal ideations, homicidal thoughts. Clearly, workers charter and human rights have been violated by the WCB and there never has been any formal apologies or restitution. If the Government can issue formal apologies and restitution to natives which I whole heartedly support, offer apologies and restitution to Albertans who were forcibly sterilized through our eugenics program administered by people who believed that these unfortunate people were inferior to them and they should not be allowed to procreate, I would suggest that this be done for our most valuable assets and that is the working people of Alberta who are the real heroes, who venture out every working day to support them selves and their families despite inclement weather and other situations they face. Worse yet is when our Federal Government provides a formal apology to a murderer, Omar Khadar, pays him $10.5 million dollars despite admitting guilt for war crimes and killing an American soldier. This is an opportunity for the NDP Government to do something that will be remembered as an act of kindness and consideration, a compassionate Government that cares about workers, something that the former Conservative Government did not do when the Doerkson and Friedman reports determined that the system operated in a culture of denial and this system was allowed to operate for another 16 years. It would seem that the NDP Government is proposing to do the same by ignoring workers whose lives were destroyed prior to proposing effective dates to prevent future workers from the same fate that our past workers were forced to endure. In order to move on to the future, we as a society must look at the past, admit failure and provide restitution to these workers, no matter what the cost. Presumably, I will not hear back from you.
