By Gerald
After decades of studying workers compensation systems in Canada and the U.S., it is apparent to any one who has any intelligence that a plan that had good intentions has lost it’s usefulness. It is disgusting that the minister in charge of WCB will not respond to a request to explain “who has the burden of proof in the Alberta workers compensation system and yet expects that he has entitlement to being called honorable. Honorable people are willing to go the distance to see that justice is done or seen to be done. It is further disgusting that the Fair Practice Office which is supposed to assist workers and employers to navigate the system either do not know and refuse to take this issue into the courts. It is disgusting also that the millions of dollars union members pay into unions that this issue would not be taken by unions into the courts. Where are the firefighters, police, paramedics, nurses, public servants etc. when they are required to stand up for themselves against what many refer to as a criminal organization supported by the Government who will not take this matter to the courts. C of QB Justice Millar determined that the burden of proof is on the “Board” The Office of the Ombudsman has determined that initially the burden of proof is on the “Board” and is shifted to the worker on appeal which creates a slippery slope due to the fact that in order to shift the burden of proof, all a Case Manager has to do is to deny the claim. How can any claim be adjudicated if no one knows who has the burden of proof. Everywhere a worker turns, they are confronted with elected or appointed bureaucrats who gather at the public trough and do nothing. The office of the Ombudsman is a joke as after determining that the “Board” has the burden of proof, the Office of the Ombudsman is supposed to comply with Section 27 of the WCA and refer the matter to the Lieutenant Governor in Council who then determines if an injustice or hardship has resulted to a worker. How much of a hardship or injustice is there when workers are forced to bear the burden of proof.
Questionably is if in fact the burden of proof is on the worker, who are the litigants. It cannot be the employer as it is rare that an employer will get involved. In reality, the litigants are the worker, WCB, DRDRB and the Appeals Commission. WCB, DRDRB and the Appeals Commission represent the employer who are financed through the accident fund as opposed to a worker who because of the lack of finances are forced to represent themselves or go deeply into debt to hire a lawyer or a worker advocate who who has no legal training in workers compensation law or no back grounds in medicine.
We have immigrants and refugees coming to this pathetic country and province hoping to start a new life and in order to survive, take jobs that many Albertans are reluctant to take. When these immigrants and refugees suffer a work related injury or disease, no intelligent human being would expect them to have the burden of proof when they have poor language skills, no knowledge of what is expected of them and how the system works. This also would be typical of Albertans who have grade school education. It is of little use to have a Fair Practice Office assist a worker or employer when they themselves do not know how to navigate the system. In every action, whether it is criminal, civil, family, statutory law every one knows or should know who has the burden of proof. How can this be considered a good system for workers whether they are immigrants, refugees or semi-illiterate workers who are born in Canada or Alberta when no one knows who has the burden of proof. I did not serve this country in the military to protect the interests of business owners. politicians who sit on their fat asses and do nothing to change the damage they have done to workers.
Workers compensation should be abolished and employers mandated by law to provide disability insurance that is guaranteed without the need to prove causation or to prove entitlement to benefits. Worker’s primary care doctors would not have to fight to have their patients receive benefits. For example; most if not all workers have pre-existing degenerative disc disease. WCB will not provide benefits other than on a temporary basis as opposed to private disability insurance who will provide benefits for short term and long term disability for DDD. No one should be forced into a system that has been the source of criticism by every royal commission in Canada that has ever been tasked with the evaluation of the system. You can put gobs of lipstick on a pig but at the end of the day it is still a pig and that is typical with WCB.
Clearly, every one must know that private sector workers pay for dual disability benefits for public workers who do not have to fight for disability benefits as if they get sick or have an accident. They can file a disability claim with the private insurer and also with WCB. The private insurer will and does guarantee instant benefits as opposed to WCB who may never pay any benefits and generally never do, especially permanent benefits. Workers in the private sector cannot double dip, so if WCB accepts their claim, all of the compensation paid goes back to the employer. This being the case, why would any moron enact legislation to ensure that only private sector employees such as firefighters, police and paramedics to name a few who are guaranteed disability benefits. The right thing to do is to make it mandatory that all employers in the province provide dual disability benefits to ensure that no worker becomes a charge on family, friends and society. This could be done by a shared cost between workers and employers rather than having tax payers pay via income tax to support workers who have had their claim s and benefits denied illegally by WCB.
The whole system is a convoluted piece of garbage and should be terminated if the present situation is not changed. The whole concept of workers compensation proposed by Meredith was to assure workers that when they are injured, exposed to occupational diseases or killed they would receive compensation and in turn employers would be protected from civil actions. Only one part of the historic compromise has been attained. Employers cannot be sued and workers face unobtainable benefits when they have a work related accident.
In reference to first responders being provided preferential and differential treatment through legislation specific to presumption, this obviously is discrimination based on provision of services. According to the Charter and provincial human rights legislation, all individuals are to be treated equally so why would a government enact legislation and regulations providing differential treatment to some workers and not to others questions the mentality of the people we elect. Do the people we elect believe that other workers do not get cancer, have heart attacks and have mental issues because of work related factors.
The following e-mails were also sent to the U of A Faculty of Law specifically to professors to explain who has the burden of proof in Alberta workers compensation system. This e-mail was sent to Cameron Hutchinson, Mathew Lewans and Eric Adams at the U of A Faculty of Law who should be able to explain something this simple.
At times Governments enact legislation and appoint adjudicative bodies to administer a system without providing any direction or interpretation of how to adjudicate the thousands of claims that are adjudicated by lay people. The workers compensation system is a good example of a system that no one knows whether adjudication is based on a strict civil system which is an adversarial system with two litigants, a plaintiff and a defendant consisting of a worker and an employer. A known fact specific to civil law is that in most cases, the burden of proof is on the plaintiff but according to the Supreme Court can be reversed at times as determined in Snell v. Farrel. According Dr. Terence Ison, a well known expert on workers compensation specific to adjudication of claims, adjudication is based on an inquiry system, not an adversarial system typical of civil litigation and the entire burden of proof both for and against is on the respective “Boards” which was proposed by Meredith over a hundred years ago. According to the WCA, the proposal of an inquiry system is supported by statute by providing exclusive jurisdiction to WCB to investigate and gather the facts. The WCA also provides WCB the same powers as the Court of Queens Bench and as well all the powers under the Public Inquiries Act. With what appears to be an easy enough system to understand that there is a big difference between civil law and an inquiry system, adjudication of claims is and has been based on an adversarial system where the burden of proof has been placed most likely illegally on workers who do not have the knowledge, financial ability and legal right to gather evidence, subpoena witnesses to support their claims and entitlement to benefits. On numerous occasions, it has been requested to the Alberta Government to explain how an inquiry system works and if in fact the burden of proof is entirely on the “Board” as suggested by Dr. Ison who is supported by other provincial workers compensation systems or is the burden of proof on workers to prove their case and the burden of proof on employers to rebut any evidence that is provided by a worker. It would be greatly appreciated is you could explain how an inquiry system is supposed to work. Thank you! Respectfully; Gerry
Needless to say there was no response and more than likely will not respond, just as Mr. Copping has not responded. I came across a lawyer in Ontario, Omar Ha-Redeye who wrote an article on the illegal use use of the but for test and material contribution test in workers compensation systems and the following e-mail was sent to him;
I have read several articles by you and question why many worker compensation systems in Canada place the burden of proof on workers despite the fact that workers compensation is supposed to be based on an inquiry model, not an adversarial model. Worse yet is that the “but for test and material contribution test” is used as a legal standard when workers are forced to bear the burden of proof. After reading your article http://www.slaw.ca/2016/11/20/modified-causation-in-workers-compensation/ it would be fair to suggest that placing the burden of proof on workers is not in compliance with the legal standards that separate civil law from administrative law that defines workers compensation systems. Curiously is that the Manitoba Workers Compensation Board https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf places the entire burden of proof both for and against on the “Board” whereas in Alberta, the impossible burden of proof is on the worker. Dr. Terence Ison who was recognized as Canada’s foremost expert on workers compensation is quoted in many of his articles stating that there is no burden of proof on workers or employers and that in an inquiry model, the entire burden of proof both for and against is on the “Board”. Dr. Ison also states in his numerous articles that adjudication is not based on the civil standard which in your article, you are in agreement with. https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj In your opinion who has the burden of proof in workers compensation and why has the burden of proof shifted to workers who do not have the knowledge, financial ability and legal right to gather evidence due to the exclusive right of the “Board” to gather evidence.
Respectfully;
Gerry
Delving further into who has the burden of proof in workers compensation I found that British Columbia has shifted the burden of proof from workers to the Board in 1968. When reviewing Meredith and leading up to acceptance of the Meredith Principles, he was of the belief that adjudication of claims should not be based on an adversarial principle which in my opinion should have then never resulted in adjudication being based on civil law which is specific to an adversarial model. This raises the question as to what is defined as an inquiry system. Is an inquiry system an adversarial system where a worker has the burden of proof. If this is so, the Dr. Ison is incorrect in his interpretation of who has the burden of proof.
According to the Alberta Court of Queens Bench in the case of Allsop v Alberta Appeals Commission, Justice Clackson determined that the Appeals Commission were of the opinion that workers had the burden of proof, thus making adjudication of claims an adversarial process by referring to Policy 01-03 where the B of D enacted policy placing the burden of proof on workers. Questionably is if the WCB B of D can enact policy placing the burden of proof on workers when historically the burden of proof according to the Meredith principles was on the Board. Justice Clackson was extremely critical of the use of lay people to hear claims as opposed to having workers having the right to have their claims heard by real judges, subpoenaing of witnesses and the right of cross examination. Justice Clackson does suggest that it is silly to have a court review some of the irrational decisions of Administrative Tribunals based on reasonableness and then hold your nose when it is apparent that the lay people who are adjudicating claims have no legal training or medical training and yet a Judge is forced to give deference to a bunch of morons. After having gone through numerous Judicial Reviews, it is my opinion that a Judge should be able to direct that the claim be reheard in the courts with full disclosure and the subpoenaing of the people who made the decisions along with the doctors who provided the opinions that adjudicators used to deny a claim or benefits. Putting the lives of people into the hands of morons is not the way the justice system is supposed to operate. It is well worth the time to read Justice Clackson’s evaluation of administrative law and recommends a procedure that is identical to the U.S. where claims are heard by real Judges in the courts and not morons appointed by Government. Notably in the U.S. is that 67% of the claims denied by insurance companies are overturned by Judges with increased costs to the insurance companies of 59% paid to lawyers for costs and disbursements when representing a worker.
