By Gerald
As I do not believe in titles such as honorable this and honorable that, I will simply call you with due respect Ms. Notley and you can refer to me as Mr. Miller.
Dear Ms. Notley;
As you know, the WCB Review Panel has concluded their reviews of the Alberta workers compensation system and will be providing their recommendations which I suspect will not do anything for workers. There has been numerous individuals and organizations who have provided their inputs into what they believe is wrong with the system and how it can be fixed. Most if not all of the inputs that have been provided to the Panel only scrapes the surface of what is wrong with the system. I believe Justice MacLean hit the nail on the head when he noted that workers did not have a level playing filed and determined that this lack of not having a level field offends the basic principles of natural justice. Based on my 23 years of experience with WCB, DRDRB, the Appeals Commission and the Alberta Court of Queens Bench via Judicial Review/Appeal, I could not agree more.
The vast majority of injured workers are blue collar workers with grade school education with no legal or medical backgrounds and with limited finances. When a claim or benefits are denied, workers without adequate finances are forced to either give up, represent themselves which is a big mistake or pay Worker Advocates or Lawyers to represent them who pass themselves off as experts when they have very little expertise in the area of workers compensation, yet forcing a worker to pay retainer fees that they cannot afford. If Worker Advocates or lawyers are experts, then they would not charge retainer fees and would represent workers on a contingency basis. Some workers contact the Office of the Appeals Advisor which is a big mistake as these people work directly for WCB, have very little knowledge of the system and will not and cannot represent workers in the courts on Judicial Review/Appeals even if the claim or benefits have been inappropriately or illegally denied. If a worker pays a Worker Advocate, the Worker Advocate cannot represent the worker on Judicial Review because of the Legal Professions Act which will not allow any individual who is not a lawyer to represent a worker in the court system. After paying out thousands of dollars to a Worker Representative and losing at the Appeals Commission level and if the worker wants to appeal the inappropriate or illegal decision of the Appeals Commission, the worker is forced to pay thousands of dollars more to a lawyer for a retainer fee and as well other costs and disbursements to a lawyer who then has to spend hundreds of hours reviewing thousands of pages of documentary files that a Workers Advocate has already reviewed after the worker has paid the Worker Advocate for their costs and disbursements and now is forced to pay a lawyer for their costs and disbursements. Little wonder why some workers incur hundreds of thousands of dollars in debts when they are forced to pay two different individuals to review the same documentary files. If a Worker Advocate is capable of representing a worker throughout the appeals process, they are or should be capable of representing a worker before the courts. One of my recommendations would be to revise the Legal Professions Act to allow Worker Advocates to represent workers before the courts.
There are far too many lawyers and Worker Advocates who if they are experts can quickly review a workers files and know immediately whether a worker has a good case or a case that has no merit. A case that has no merit and would be impossible to win should not be undertaken by a lawyer or Advocate when it is obvious that the claim has no merit rather than to proceed with taking a workers money and knowing that the chances of winning is extremely unlikely. If a worker is unwilling to take the honest and good advice of a lawyer or Advocate who should refuse to represent the worker, although workers can usually find some lawyer or Advocate who is dishonest and with no integrity to represent a worker, take their money and give them the one finger salute.
Based on my own experience in Judicial Reviews/Appeals if WCB Legal Counsel and the Appeals Legal Counsel do not see a person representing a worker in the courts as being a threat, the Legal Professions Act is waived. If WCB Legal Counsel and the Appeals Legal Counsel see the representative as being very knowledgeable and threat, they advise the court that the representative cannot represent the worker because of the Legal Professions Act and if the Judge allows the representative to represent the worker, they will appeal any decision made by the court in favor of the worker on a question of law to the Alberta Court of Appeals. This has happened to me where I was allowed to represent a couple of workers before the courts and after successfully having the Appeals Commission decision overturned, my goose was cooked as when I appeared in court the next time, the Judge was willing to waive the Legal Professions Act but the Appeals Commission Legal Counsel refused to allow me to represent the worker and informed the Judge that she would appeal any decision on a question of law which prompted the Judge to advise the worker he would have to represent himself which for a semi illiterate person with a grade 8 education was impossible and he wound up losing. If allowed I could have easily won the case.
On most if not all Judicial Review/Appeals the employer is represented by the Appeals Commission and WCB Legal Counsel who have inappropriately or illegally denied the claim. All of their expenses are paid for out of the accident fund as opposed to a worker whose expenses are paid for by themselves, usually by mortgaging property or by borrowing money. It is especially heinous when workers when requesting the attendance of witnesses and the Appeals Commission refuse because a worker cannot pay conduct money to doctors who charge $700.00 an hour or more plus expenses, yet WCB can pay for a doctor who came all the way from Cookeville Tennessee for a two day in person hearing to act as an expert witness for them which back fired as rather than supporting them, he supported my client and they were forced to admit that they had made a mistake. Obviously it does not take a rocket scientist to determine there is no level playing field.
The best possible solution and recommendations I have to level the playing filed is to remove the Office of the Appeals Advisor from the control of WCB and place them under a a Government body such as the Minister responsible for workers compensation the same way the Appeals Commission is now under the Justice Minister. The Office of the Appeals Advisor would be staffed by lawyers who are experts in workers compensation and as well comprised of Medical Advisors who are experts and as well be able to contact medical experts throughout the world who are recognized by their peers as being real experts and not like some medical wannabe that are contracted by WCB. All of these people’s expenses would come out of the accident fund which would be used for whatever purpose the Office of the Appeals Advisor believes would be necessary to ensure workers are treated fairly and at the end of the day, workers would be confident that everything that could be done was done whether they win or lose.
The reason why I am recommending changes to the Office of the Appeals Advisor is because what started off as an Inquiry system has evolved into an Adversarial system where the worker now has the burden of proof rather than the “Board” even though the Board has exclusive jurisdiction to gather the facts, all the powers of investigation under the Public Inquiries Act, same powers as the Court of Queens Bench and yet the worker has the burden of proof which is grossly illogical. Question is; if the employer is not involved in the process, who then has the burden of proof to prove contrary.
The “Board” is acting more like a Judge who is judging a case between two litigants, the worker and the employer and after a claim is filed the employer is replaced by WCB and the Appeals Commission who now take the role of the employer. This is evident on Judicial Reviews/Appeals when a worker is on one side of the courtroom facing off with both WCB Legal Counsel and the Appeals Legal Counsel on the other side of the room and the employer who they are obviously representing is not present. This also is evident at in person hearings where the Appeals Commission takes the role of representing the employer who also is not present.
Last but not least is the issue of who receives the benefit of doubt in the workers compensation system if a claim remains in the neutral state where it cannot be proven either way. Upon review, it is evident that the employer receives the benefit of doubt when it is the worker who is supposed to receive the benefit of doubt when a claim remains in the neutral state. As any one knows, medicine for the most part is based on speculation, yet according to WCB a claim cannot be accepted based on speculation, yet the SCC has determined that all claims must be accepted based on speculation (common sense and logic). WCB also adjudicates claim on a higher legal standard than in criminal law as despite the courts objections and decisions, WCB adjudicates claims on medical certainty rather than speculation or common sense and logic which is a higher standard than criminal law.
