By Gerald
Most people are aware that lawyers have very little or no integrity or principles which is evident when performing surveys involving trust. Lawyers are always at the bottom of the list. The case I am presenting is why all long standing claims must be reheard by unbiased, knowledgeable people with integrity. Grandfathering claims that has resulted in grievous harm to workers should be as important as grandfathering the grievous harm caused by Governments to natives and the grievous harm done to Albertans who were forcefully sterilized due to the governments belief in eugenics. Much of the harm done to workers should fall under the criminal code based on criminal fraud not honest mistakes and the people involved including Wispinski incarcerated. Aiding and abetting criminal action is an indictable offense. Should the Appeals Commission be headed by some one who has allegedly committed an indictable offense. I think not.
The case I am presenting may be be found on Canlii although the Judicial Review presided by Justice Millar was not put on Canlii for obvious reasons because the harm it could of caused WCB and the Appeals Commission. This particular claim goes back to 2007 when the worker was injured although he is still fighting two claims specific to work related accidents that happened 45 years ago. In the 2007 accident, unbeknown to the employer, the worker applied for the job despite the fact that he was on CPP disability and also AISH because WCB on the two previous claims dating back 45 years illegally denied his benefits that he was entitled to. The Case Manager (Neil Swancar) had advised the worker that he was unemployable and that he must lie or hold back any information about his medical condition to obtain work. He followed the directions of Mr. Swancar and on the first day of work slipped on some stairs, fell into a pile of rocks and had to go to the emergency in Olds, Alberta where he was found to have suffered internal injuries and was passing blood in his urine. WCB accepted his claim and a WCB doctor, Dr. Henderson opined he would recover in 3 months. The workers Case Manager told the worker that the employer had offered modified work which was a lie and verified by the employer that it was a lie. The intent by the Case Manager, Carole Couture was to terminate his claim to claim her bonus provided to all Case Managers by WCB to terminate claims. This practice was verified by John Wollcott, another Case Manager with WCB who claimed all Case Managers did this.
This claim went through the appeals process and two years later, without any investigation by WCB, at an in in person hearing the Appeals Commission determined that the worker was not entitled to a temporary total earning loss for 3 months but was only entitled to a one month temporary earning loss because according to the Case Manager, Carole Couture modified work had been offered but the worker refused the offer of modified work. Questionably is why the Appeals Commission would not have simply sent the claim back to WCB and directed that there be a written offer of modified work from the employer rather than to assume that the Case Manager was honest which questions their decision making capabilities. Stupid people do stupid things. Needless to say, the Appeals Commission directed that WCB pay one month loss of earnings and denied the additional two months loss of earnings because they assumed that the employer had offered modified work because the Case Manager said that the employer offered modified work.
Undaunted we then put in a claim for a temporary partial loss of earnings which was denied by another Case Manager. Her decision was upheld by the DRDRB even though over 3 years later, WCB had still not investigated or contacted the employer as to whether modified work was ever offered. On appeal to the second group of misfits (3 stooges selected as Appeal Commissioners) I requested that the employer and the Case Manager be subpoenaed to prove that no offer of modified work had ever been made. This request was denied because the 3 stooges decided that documentary evidence was adequate to make a decision which as any fool knows, documentary evidence is only accepted by fools and is rarely or ever used in real courts presided by real judges rather than the stooges or monkeys selected by the Government who are as dumb as the people they select.
During the in person hearing, a question was asked by a member of the Appeals Commission, Patty Whiting if modified work was discussed which was a stupid question as discussing modified work is not the same as offering modified work. Rather than answering the question, the employer replied that had he known the worker had work restrictions was on CPP disability and AISH, he would not have hired him in the first place. This seemed to go over the 3 stooges heads and the claim for temporary partial loss of earnings to the end of May was again denied. We requested a reconsideration based on the fact that I contacted the employer and asked if he had ever offered modified work through the Case Manager or contacted the worker directly to offer modified work and his reply was that he did not at anytime offer modified work. Not getting any where with these assholes who clearly should have or could have been replaced by monkeys we chose to go to Judicial Review.
The Appeals Commission and WCB in their statement of defense, suggested that the burden of proof was on me to prove that modified work was not offered and suggested that during the in person hearing attended by the employer via teleconferencing that I should have asked the employer if he had offered modified work. The issue of modified work should have been cleared up at the initial stages of WCB’s investigation and not having me having to ask a question that the Appeals Commission should have considered and not after the fact blame me for not asking a question that WCB by law and policy were responsible for obtaining during an investigation. In Justice Millar’s decision the decision to deny the claim was based on their belief that the burden of proof was on me and that it was up to me to contact the employer or ask the employer at the in person hearing if modified work was presented. Per verbatim, Justice Millar replied to this, “with respect, this appears to be the flimsiest of evidence with respect to the offer of modified work.When confronted with Mr. Miller’s repeated denials that no modified work had been offered and no written documentation had been produced, the decision of the Appeal Commission in this regard is under review, which would be respected if it is reasonable. In my view, it was not reasonable. The case notes of the WCB Case Manager is barely worthy of note and amounts to an absence of evidence. To suggest that the Appeals Commission needs more evidence by suggesting Mr. Miller had an opportunity to ask the employer has some merit. However as noted by the applicant, this is an inquiry system, not an adversarial system. Justice Millar after rendering his decision, he stated per verbatim, “In the result, I find the approach of the Appeals Commission was not reasonable. It is for the Appeals Commission to determine if they will require some written confirmation of the offer of modified work or in its absence, subpoena the employer with a notice to attend to confirm the offer of modified employment. That question should be referred back to the Appeals Commission for a reconsideration with a new panel” The claim was referred back to the Appeals Commission and they refused to contact the employer as they knew that there was never any offer of modified work, they knew the Case Manager had lied and they knew they had naively believed her making them look like fools. Not wanting to look like fools, they denied the claim for a second time stating again that the burden of proof was on me and that I should have asked the employer at the in person hearing if modified work had been offered despite the fact that Justice Millar had already determined that in an inquiry system, there is no burden of proof on any one other than the “Board” who had not done their due diligence and performed a thorough investigation. Note: in this particular workers claim, it was determined that there need not be a written offer of modified work and when looking on Canlii on an Appeals Commission decision, an employer appealed a decision of the DRDRB specific to whether there need be a written offer of modified work and the Appeals Commission determined that there must be a written offer of modified work, signed by the worker and the employer and dismissed the appeal of the employer because the worker had not received the written offer of modified work because the written offer of modified work went to the wrong address and was therefore not signed by the worker. Either a written offer of modified work is required in all cases or a written offer of modified work is not required. This would be a valid complaint to the human rights commission based on differential treatment. I suspect that every claim would result in differential treatment and result in a human rights complaint due to inconsistent decisions that result in discrimination.
According to the principles of stare decisis ( When an issue has been been preciously brought to court and a ruling issued) the same issue cannot be brought back to be re-adjudicated) The principles of res judicata (an issue that has been determined by a competent court and may not be pursued further by the same parties) and as well the principles of issue estoppel. After denying the claim for a second time we again had to request another Judicial Review. Rather than WCB having their Legal Counsel represent WCB and Wispinski represent the Appeals Commission, Wispinski represented both WCB and the Appeals Commission which clearly was a conflict of interest as the Appeals Commission is supposed to be a neutral body, not a body representing WCB. Representation was discussed with Yamauchi and Wispinski made it quite clear to Yamauchi that she would not allow me to represent the worker because it was apparent that I knew more than her and after two of their senior legal counsel losing the case before Justice Millar, she could not allow me to represent the worker. Rather than Wispinski doing the right thing and acknowledging that there was never an offer of modified work, an honest person with any integrity would have advised the court that she could not defend the Appeals Commission to criminally defraud the worker out of the two months entitlement for a temporary loss of earnings making her an accessory to an indictable offense which is criminal fraud. Based on the same evidence that was before Justice Millar, Justice Yamauchi should not have allowed the Judicial Review to proceed based on the principle of stare decisis and not disagreeing with Justice Millar and disrespectfully disagreeing with Justice Millar determining that we had the burden of proof in determining whether modified work was offered or that I should have requested this information at the in person hearing which is patently unreasonable as this should have been determined by WCB who were not in compliance with their own policy by not investigating the claim two years before the in person hearing. We could have appealed the decision of Yamauchi to the Alberta Court of Appeal but with limited finances, the worker like thousands of other workers face the procedural unfairness of having to pay for a lawyer while both the Appeals Commission and WCB use money out of the accident fund that belongs to workers which does not belong to them but is held in trust by WCB and not to be used to bully workers into not going to the courts for Judicial Review.
It is apparent that the whole reason by the Appeals Commission not complying with justice Millar’s directive was to teach us a lesson after they had lost the court battle between their senior legal counsel, WCB’s senior legal counsel and I by making this a vindictive and retaliatory lesson for workers who would dare question their expertise in adjudicating claims and then making them all look like fools.
Still not backing off, we filed a multi-million dollar civil action suit against the Appeals Commission suspecting that their statement of defense would be based on Section 13.1 (9) of the WCA which removes or forbids any action against the Appeals Commission if their decision was made in the honest belief that it was within the Appeals Commission to make. Having them admit they made a mistake in denying the claim was worth the $200.00 it cost to file the civil action. Despite in the statement of defense, they admitted to making an honest mistake, they still refused to apologize or pay the worker the $8,000.00 dollars they owed him which questions the integrity of Wispinski and Tadman who should have sent the claim back to WCB directing that WCB pay the worker..
Having experienced shit like this I do not question why workers take the law into heir own hands and seek revenge. According to the criminal code, it is legal to take the law into your own hands when local authorities refuse to protect you as long as you use reasonable force. At the time that Patrick Clayton decided to take matters into his own hands in all the forums that I read, most people agreed with what he done. I also believed that he was justified what he did and in a CBC interview, I expressed my views and when asked if I believed that incidents like this would happen again, my reply was, most certainly it would.
The WCA was changed in 2018 specifically to how the WCB BoD must be selected. The same selection process should be used to select Appeals Commissioners as per Section 5(1.1) effective in 2018 where an equal number of Appeals Commissioners are selected from a list of persons chosen by workers, an equal number selected from a list chosen by employers and an equal list chosen by members of the public rather than now where Appeals Commissioners are chosen based on their political affiliation. There is presently 43 Appeals Commissioners which would mean if this method was put into place, the Government would select 14 Appeals Commissioners from the lists presented by injured workers groups, 14 Appeals Commissioners representing employers and 14 Appeals Commissioners representing the general public. As any monkey could serve as the Chief of the Appeals Commission, this selection could come from the Calgary zoo. At present, at an in person hearing there are no worker representatives and is the reason why over half of the appeals are denied because when choosing the three panel members to serve at in person hearings, all are professional, business, management, former government employees, lawyers, former WCB employees, union business managers with only one of the Appeals Commissioners (Stephan Dussault who has only been in Alberta for 5 years and has never participated in any in person Appeal Commission hearings) being a blue collar worker.
There needs to be some one in charge of the of the WCB and the Appeals Commission as at present no one is in charge or taking responsibility for the corruption that workers experience. Incidentally, I did hear that the person selected to be the head of the Fair Practices Office would be Tadman.
