By Gerald
It appears to me that there is still confusion as to the difference between an impairment and a disability, with even lawyers not knowing the difference and believing that an impairment is the same as a disability/ Impairment is a medical term and expressed as a percentage of a whole person impairment with the higher the impairment the closer a patient is to death. A 100% impairment is when all bodily functions cease and a patient dies.
It is illegal in Alberta to use impairment ratings as a direct method of rating a disability but prior to Jan 1, 1995, the Alberta WCB illegally used impairment ratings as a direct method of rating disabilities and after a number of court decisions (Penny decision in Alberta) specific to using impairment ratings as a direct method of rating disabilities, changed their policy to a dual award system thereby separating an impairment from a disability. Impairment ratings do not include work in assessing impairment as work changes from one one occupation to another and therefore there is no set reference level as work can be sedentary, light moderate or heavy. The reference used in assessing impairment is simple basic activities of daily living which never changes from one patient to another, thus the same impairment rating can be used as a reference for all patients.
Using chronic pain as an example results in a maximum impairment value of 3 percent (AMA Guides) which is a standardized conventional method of providing the same impairment rating for all patients by referencing all patients to a set reference which is based on simple basic activities of daily living. This same value (3%) cannot be used to measure a patients difficulty in performing work which varies depending on a patients occupation. A patient performing sedentary work and diagnosed with chronic pain would have a higher impairment rating when referenced to sedentary work, higher for light work, higher for moderate work and higher for heavy work and therefore work is excluded as a reference in assessing impairment ratings. Being that earnings are associated with work, you cannot multiply an impairment rating times net earnings resulting in a disability. The impairment rating has to be converted to a disability rating specific to a workers prior occupation that factors in whether the work is sedentary, light, moderate or heavy and multiply the converted disability rating by net earnings. This is not rocket science and did not take the Alberta Court of Queens Bench in the Penny case to figure out that an impairment rating does not equate to a disability rating. The Alberta Appeals Commission appealed the C of QB decision in favor of Mr. Penny and the Alberta Court of Appeal denied the appeal and upheld the decision of the Alberta C of QB. Question is then why if the Alberta Appeals Commission knew this, why did they continue to use impairment ratings as a direct method of rating a disability which questions the integrity of the Appeals Commission when they are aware that equating an impairment rating to a disability is illegal, thereby making them an accessory to criminal fraud.
Prior to the Penny decision by the C of QB and the Alberta Appeals Court, WCB and the Appeals Commission could suggest that this was an honest mistake. After the Penny decision it no longer would be an honest mistake. It would be fair to suggest that there was a conspiracy by WCB, the Appeals Commission, the Crown Prosecutors Office, Office of the Ombudsman and the Justice Minister at the time (Dave Hancock I believe) to continue to use impairment ratings as a direct method of rating a disability rather than to admit they had made an honest mistake and all claims would be re-adjudicated and pay compensation to workers based on a disability and not an impairment. The NDP Government and especially Ms. Ganley has to address this issue and ensure that justice is done or seen to be done rather than to turn a blind eye as was the case with the Conservative Government. It would be fair to suggest that because WCB is a multi-billion dollar business, that certain individuals accepted bribes to cover this up rather than to admit that they had made an honest mistake and then having to re-adjudicate thousands of claims involving millions or billions of dollars. Questionably is why WCB Medical Services who assess impairment ratings did not advise WCB that impairment ratings do not and cannot be used to determine disability. It would be fair to suggest that WCB Medical Services may have accepted bribes to cover this up.
Dr. Emily Spieler ( well known law professor in the U.S.) who is an acquaintance of mine was requested by Congress to determine the difference between an impairment and a disability and her findings can be found on the Internet when googling the “Spieler Report. I also have an e-mail sent to me from Dr. Gunnar Andersson (Co-editing Chair of the AMA Guides 5th Edition) which I have in my possession specifying that you cannot use impairment ratings as a direct method of rating a disability, all of which I gave to the Calgary City Police Commercial Crimes Unit. Their investigation concluded that WCB were in fact using impairment ratings as a direct method of rating a disability and turned everything over to the Crown who decided not to press criminal charges because there was little doubt that WCB and the Appeals Commission would in their statement of defense state that their was no intent to defraud because they had simply made an honest mistake. The Crown suggested I pursue civil action but that was also not an option as the Alberta WCA Section 13.1 (9) and Section 17 (2) provides protection from civil action based on an honest mistake. It would be fair to conclude that the Alberta Government is to blame for the corrupt and unfair treatment of workers.
