Hearing Today on Eliminating Workers’ Compensation Appeals Board in Alaska Senate
01/28/20 Liz Carey
Anchorage, AK (WorkersCompensation.com) – Hearings on whether or not to eliminate Alaska’s Workers’ Compensation Appeals Commission will begin today, officials there say.
The Alaska Senate Labor and Commerce Committee will discuss SB 76, introduced last year by Sen. Bill Wielechowski, D-Anchorage. The bill would repeal the commission and move all reviews or appeals of decisions by the Alaska Workers’ Compensation Board to the Alaska Superior Court. The bill would only impact claims filed after June 1, 2019.
According to a statement from Wielechowski’s office when the bill was filed in March of 2019, the commission has seen its caseload decline recently, from 49 cases in 2007 to only 20 cases in 2016. The commission was created in 2005.
Moving the appeals to the Superior Court system could save the state an estimated $400,000 a year, Wielechowski said. Alaska faced a budget deficit of nearly $1.4 billion in 2018, but budget cuts by Gov. Michael Dunleavy have brought the deficit down to just $730 million.
They probably were as useless as the Alberta Appeals Board. It took nearly two years in a claim I was representing a worker, for the Alberta Appeals Commission to admit they made a mistake if in fact it was a mistake. This admitted mistake can be found on Canlii Decision 2020-0001
By eliminating the Alberta Appeals Commission, this would save employers millions of dollars and reduce their premiums. What is the point of having the Alberta Appeals Commission when in most cases they support the decision of the DRDRB.
My further comments regarding the following news article (in italics):
Workers’ Compensation Board
The province’s WCB board of directors has been reduced from 10 to seven members, which the province says will save as much as $56,000 in spending.
“The reduced numbers will help to streamline the work done by the WCB board of directors, providing opportunity for more effective and efficient decision-making,” said the province in a release.
The new chair is Erna Ference, who replaces Grace Thostenson. The province says she has a background in workplace health and safety, the agricultural industry and fiscal management.
While the board boasts smaller numbers, the province says there will still be the same proportion of employer, worker and public representatives.
Workers compensation is an ancient relic from the past and serves no useful purpose in protecting workers. Employers are provided protection from civil litigation but they pay dearly into a system that does not work at all for workers as witnessed by workers when they are injured or suffer an occupational disease. The only thing WCB does is cause marital breakdowns, suicides, homicides, family poverty which the Government seems to be quite content with.
A cost saving of $56,00.00 is drop in the bucket and will do nothing to streamline the system as the culture of denial is so deeply entrenched into the system that the only way of saving money for employers is to get rid of it and replace it with modern day disability insurance where premiums are shared by employers and workers. This could be achieved very easily saving millions of dollars a year for employers while still protecting employers from civil action and getting rid of the horrendous task of proving causation which is next to impossible regardless of who has the burden of proof. Does it really matter whether a person breaks a leg at home or at work and may not be able to work again until they recover.
Another option is to retain WCB as a disability insurance company exclusively for workers and employers but change WCB so that they provide unconditional insurance without the impossible task of some one whether it be the worker or the “Board” proving causation. Who really cares!
In my humble opinion it is grossly illogical to pay two disability premiums when one would suffice. I pay for one comprehensive home insurance policy and do not pay home replacement costs, one for the roof and one for the remaining structure. I do not pay collision insurance for the front part of my car and another collision insurance for the back part of the car. I do not pay life insurance for death caused by injuries or disease to the upper part of my body and separate life insurance for injuries or diseases to the lower part of my body.
For those of you who do not know anything about dual disability insurance that public servants and WCB employees receive, it works like this. When a worker with dual disability insurance is injured, suffers any medical condition, they file a claim simultaneously with WCB and the private insurer. The private insurer responds immediately and a worker starts receiving short term disability benefits as opposed to WCB who have to decide whether the accident or medical condition arose out of and occurred in the course of employment. This could take decades. If the private insurer’s Medical Consultants determine that it is a work related injury or disease, they continue to pay disability benefits but have the worker sign documents which if WCB accepts the claim, any money a worker receives goes back to the private insurer. It shouldn’t take a rocket scientist to figure out which disability insurance is better, WCB who offer conditional insurance or a private disability carrier who provide unconditional insurance.
When considering how much money in salary and benefits are paid to WCB Case Managers and upper level management, DRDRB members, Appeals Commissioners, WCB Legal Counsel, WCB Medical Advisors, support staff, office leasing, furniture etc. it would most likely result in more money paid out for these expenditures than workers receive in disability benefits.
Why should taxpayers pay for dual disability insurance for public servants if WCB provides such great insurance for worker protection. If in fact WCB was totally abolished, no one would miss it at all. A much better plan would be to make disability insurance mandatory on a shared cost between workers and employers with legislation that workers could not sue an employer or a fellow employee in the event of an accident. Disability insurance could be provided by a major insurance company like Sun Life that already provides major corporations like Telus, Government employees and as well as WCB systems across Canada with disability insurance. Sun Life disability benefits are not contingent on proving causation and would kick in immediately for as long as a disability lasts unlike WCB disability insurance which can take decades to receive if at all. I am assisting on four claims, one is 46 years old, another is 28 years old, another is 11 years old and five years old. All are legitimate claims that involved reduced benefits or no benefits at all. With no money paid out by WCB for work related accidents, it is tax payers who are supporting these workers through Social Services and CPP disability payments. In all of the four claims the workers were being supported by Social Services or Services Canada (CPP disability). Interesting enough is that a study in the U.S. concluded that over 76% of the work related pensions to workers were being paid for by tax payers through Social Security which in Alberta would most likely also be the case. The person whose claim went back 46 years had been on CPP disability and AISH since 1992 until he turned 65, costing taxpayers approximately well over $300,000.00 for a work related injury that was eventually accepted by WCB several years ago and received approximately $13,000.00 as a lump sum back payment which clearly is a joke with no payment by WCB to Social Services, Alberta Health Care and Services Canada who provided the disability pensions and medical care for the worker and his family destroying the myth that the employer funds the system. You can fool some of the people some of the time but you cannot fool all of the people all of the time and I am one person who you can not fool at all.
There is good news and bad news after legislative changes by the NDP Government. Good news is the NDP removed the cap on maximum insurable earnings. They also legislated interim payments to workers while their claim is being dealt with by a Case Manager, DRDRB and the Appeals Commission. The bad news is that there is no statute of limitations as to how long it takes for a Case Manager to make a decision. As well there is no statute of limitations to how long it takes for the DRDRB to make a decision and there also is no statute of limitations on how long it takes for the Appeals Commission to make a decision. This could take years. If a worker receives interim relief, the time it takes to go through the appeals process does not seem to matter as workers are being paid interim relief. The bad news is that interim relief is not based on a workers earnings, it is based on minimum wage which means that a worker whose earnings are at the high end will receive minimum wage which will ultimately result in losing everything they own with a good possibility of a worker committing suicide, killing WCB employees, their families or the politicians who are responsible for forcing them into a system that does not work.
Patrick Clayton who most Albertans recognize took the law into his own hands when it was apparent that local authorities refused to assist him. Question is: when local authorities do not protect a person is it a crime to protect yourself? It was determined by the Court that Mr. Clayton was not justified to take the law into his own hands and sentenced him to a prison term. Curiously when he served his time, WCB paid him what he was entitled to but why did WCB not pay him what he was entitled before he took the law into his own hands. He served his prison time and after getting out, WCB paid him and are still paying him for what he was entitled to. Does this mean that in order to receive the benefits a worker is entitled to, that a worker takes the law into their own hands, serves a prison term and then receives compensation after they get out. The moral of this story is that WCB is telling workers that in order to receive the benefits a worker is entitled to, the worker must get a shot gun, go down to the WCB office and threaten or kill WCB employees and then the worker will receive their benefits. Of course WCB did the same thing with Gregory Jacks who blew his head off with a shotgun and after he was dead, WCB apologized to his widow and paid her the benefits Mr. Jacks was entitled to.
Having spent my early yeas in the military we were taught to take out the people at the top, not the people at the bottom.Using this philosophy, if Mr. Clayton was smart he would have gone to the legislature building and went after the people responsible for his problems and not after WCB employees who are simply doing what they are allowed to get away with.
Obviously, by abolishing WCB, it would open Alberta for business with employers from other provinces most likely relocating to Alberta and employers who are presently in Alberta remaining in the province where employers and workers share the cost of disability insurance without the horrendous task of determining causation.
Last but not least, if WCB is such a great insurance plan, why did the Government bring in regulations to exempt numerous employers and workers from having to be covered by WCB which raises an interesting question. When workers and employers who are exempt from being forced into WCB, if an employer or worker covered under workers compensation is involved in an accident with a worker or an employer that is exempt, they can be sued by an exempt worker or employer in the event of an accident where the worker or employer covered under WCB is at fault. In other words, the “Grand Bargain” envisioned by Meredith is not such a grand bargain at all. Better to mandate that all workers and employers be covered under a non conditional disability insurance to avoid any civil litigation involving workers and employers. Why do something half-assed when there is a better alternative.
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 Miller
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.
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.
Dear Mr. Copping;
Congratulations on your election win and selection as labor minister by Mr. Kenny. From your biography I see that you have impressive credentials as the new labor minister. Better yet, some of your studies were from Osgoode Hall where I assume you must have met Dr. Terence Ison who is acknowledged as Canada’s foremost expert on administrative law as it pertains to workers compensation.
We have a perplexing problem in Alberta that has been around for decades and that is who has the burden of proof both for and against in the workers compensation system. According to Dr. Ison neither the worker or the employer has any burden of proof. Dr. Ison suggests that in the workers compensation system in Canada, the “Board” is the only one who has the burden of proof, both for and against in what he refers to as an Inquiry system. This was noted by Justice Bruce Millar of the Alberta Court of Queens Bench when I was involved in a Judicial Review which resulted in the Appeals Commission and WCB Legal Counsel being advised by Justice Millar that my client under an Inquiry system had no burden of proof whatsoever, yet both WCB and the Appeals Commission persist in placing the burden of proof on workers. It is rare that an employer ever appeals any decision and rarely if ever attends an in person appeals hearing when WCB, DRDRB and the Appeals Commission assume the role of the employer to contradict a worker who is left on their own to argue their claim.
If you click on the following link; https://www.wcb.mb.ca/sites/default/files/2016%20backgrounder.pdf, scroll down to Part V of the Manitoba workers compensation system where it states:
V Principles of Adjudication Inquiry Model
The WCB operates on an inquiry model, which means that the WCB must either prove or disprove a claim through investigation. It is not the responsibility of the worker to prove the claim, nor is it the responsibility of the employer to help prove or disprove a claim. There is no formal or legal burden of proof on any party but the WCB. The WCB is responsible for ensuring that there is sufficient information on which to base a decision. Workers, employers, and health-care providers are required to report to the WCB. The WCB then undertakes whatever additional inquiries are necessary to determine eligibility and compensation entitlement.
Click on the following link:
https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1620&context=ohlj Scroll down to page 814 third paragraph where Dr. Ison states:
With regard to the burden of proof, workers’ compensation in Canada has always been different from common law proceedings. Our systems were established to work on an enquiry model, not an adversarial model. There is no burden of proof on anyone except the board. Since workers’ compensation was not to be adversarial, a rule was required for situations in which the evidence for and against employment causation is judged to be evenly balanced. In that situation, a common law regime would require that the claim be denied; but a more benevolent view was taken in workers’ compensation. It has commonly been provided that, where the evidence relating to the disputed probabilities is judged to be evenly balanced, the matter should be decided in favour of the claimant.
In Alberta, the burden of proof is put on the worker which is typical of an adversarial system which was never the intention of Meredith specifically because workers do not have the resources or financial ability to pay medical costs, legal costs to fight WCB, DRDRB and the Appeals Commission. Workers also do not by statute have the right to investigate, do not have the same powers as a the Court of queens Bench as does WCB, they also do not have any powers of investigation as does WCB under the Public Inquiries Act.
My question to you is the same question I have asked previous Ministers in charge of the WCB. Who has the burden of proof in the workers compensation system in Alberta or is Alberta the only province in Canada that adjudication of claims is based on an adversarial system.
It seems no one wants to answer this very simple question which after one hundred years, the people adjudicating claims should know whether Alberta operates on a strict civil law standard where workers are regarded as plaintiffs rather than claimants. I would appreciate a response although I don’t expect you or any one else would have the intestinal fortitude to upset the sacred cow.
Adding to this is that we have laws in Canada and in the province of Alberta which we as citizens are expected to obey. That being the case why is it that WCB and the Appeals Commission are not held to that standard and if they are not, then why should any one obey the law. Our courts, including the Supreme Court of Canada find that WCB and the Appeals Commission are not in compliance with the law and WCB and the Appeals Commission continue to ignore the law and if they are sued, claim an honest mistake. When is the Alberta Government going to either fix the system to comply with the Meredith Principles or simply get rid of the whole system and the scumbags that are placed in positions where they are allowed to abuse workers and their families. By the way I am not an injured worker, have never filed a claim but I would be amiss if I did not assist and care for the less fortunate in our society which is more than the Government can say as in my opinion, the Government does not give a rat’s ass as to what happens to injured and disabled workers.
- Gerry Miller
Your response as to who has the burden of proof
Dear Mr. Robinson;
While I appreciate the response from you as to who has the burden of proof in the workers compensation system, I question your response. As you know or should know, I believe in total transparency in any of my communications as there is nothing confidential nor should there be with any correspondence specific to WCB issues so I will send your response to all of my many e-mail contacts. From the FPO website your CV states, https://fpoalberta.ca/about-us/fair-practices-commissioner/
it would appear that you are somewhat qualified in administrative law but have no experience or background in administrative law that is specific to workers compensation administrative law that is vastly different than other administrative laws. As you know or should know, adjudication of claims is based on an inquiry system, not an adversarial system and therefore the burden of proof both for and against is on the “Board”. Unfortunately for workers, adjudication is and has been based on an adversarial system rather than an inquiry system which is and always has been illegal. Your reply that the FPO does not provide legal advice is concerning as if the FPO is to assist workers and employers, then it is your responsibility to ensure that the correct method is used and understood by workers and employers who must be aware of who has the burden of proof both for and against in an inquiry based system unless you are concerned that if this was common knowledge that the FPO would be redundant and you all would lose your jobs. Is it thus better for you to keep workers and employers in the dark than to enlighten them with what should be common knowledge.
Alberta’s workers compensation system is over 110 years old and from the time that the system first began, every one filing a claim should have known who has the burden of proof. In criminal law, every one knows that the burden of proof is on the Crown. In civil law the burden of proof is usually on the plaintiff although in some civil claims the burden of proof can be shifted from the plaintiff to the defendant according to the Supreme Court of Canada. It is grossly illogical to have a system that has been in existence for 110 years and you, WCB, DRDRB and the Appeals Commission do not know who has the burden of proof when the most important question in any legal system is who has the burden of proof.
Unquestionably, the determination of who has the burden of proof both for and against is the most crucial or one of the most important part of the adjudication process. Had this issue been determined decades ago, there would have never been any need for presumptive status for first responders. In every claim, as long as a claim remains in a neutral status, presumption takes effect and the benefit of doubt is historically always to have gone to the worker which is the way it was supposed to happen but because adjudication some how over the years took on an adversarial standard where the worker had to prove a work related injury or disease, the benefit of doubt went to the “Board”.
If a person reviews WCB policy 01-03 Part I Int. 3, the policy states that a worker does not have to provide any proof beyond a reasonable doubt. In an inquiry based system a worker is not required to provide any proof, that is the sole domain of WCB according to the WCA Section 17 (1). Policy 01-08 Part I specific to new evidence. What new evidence? If the burden of proof is solely on WCB and they have performed a thorough investigation, there should not be any new evidence and any new evidence should result in disciplinary action against an adjudicator who was not responsible for gathering the evidence. Taking this further, in the Appeals Commissions Practice Guidelines #5 Content J specific to new evidence that is presented to the Appeals Commission for reconsideration of an original Appeals Commission decision. What new evidence are they referring to as if the system is supposed to be working according to plan and WCB has done their due diligence by investigating and gathering the facts, at no time should there be any new evidence. It is grossly illogical for the Appeals Commission to deny a reconsideration based on their belief that the worker has the burden of proof and with due diligence the evidence that a worker has provided now could have been presented at the earlier Appeals Commission hearing. Being that gathering of the facts is exclusive to WCB, it is illegal for a worker or an employer to gather the facts.
As you know or should know, the legislature has through legislation enacted the WCA that provides “exclusive jurisdiction” (Refer to Section 17(1) of the WCA) whereby only WCB is legally entitled to investigate and gather the facts and this is explained in WCB policy also by referring to WCB Policy (02-01 Part I) which I request that you read. For your information, the Ombudsman has already determined this issue and so did the Court of Queens Bench. The only problem is that WCB, DRDRB and the Appeals Commission are not complying with the WCA and WCB Policy which it is your responsibility to advise the Ombudsman or the Justice Minister to direct that WCB, DRDRB and the AC comply with the WCA and WCB Policy by placing the burden of proof both for and against solely on the Board. Of course no one makes these shysters and gangsters do anything as witnessed by the fact that despite the fact that the Supreme Court of Canada determined that chronic pain must be recognized and workers diagnosed with chronic pain must receive the same compensation benefits as workers who do not have chronic pain but receive compensation benefits which almost 20 years later they are still not in compliance.
As a public body that is set up to assist workers and employers, in order to assist and represent them, it is your duty to ensure that all workers and employers are aware that neither the worker or the employer has any burden of proof in an inquiry based system rather than passing the buck to the Ombudsman or the members of the legislature. If necessary, when the FPO is aware that WCB, DRDRB and the Appeals Commission are not in compliance with the law, that you contact the Justice Minister and have the Justice Minister direct that WCB, DRDRB and the Appeals Commission to comply with the law. Other than that, the FPO is another useless body created by Government. Have a nice day!
On Wednesday Feb.20, 2019 we attended a Judicial Review which resulted in the Court, WCB Legal Counsel, Appeals Legal Counsel and I agreeing that the blame for using impairment ratings as a direct method of rating a disability was the WCB BOD who are responsible for enacting policies specific to how compensation is paid. The Judicial Review was specific to how workers and employers were cheated or defrauded by WCB prior to Jan, 1 1995 based on the WCB BOD enacting policy that has resulted in worker suicide, family poverty, family breakups and homicidal thoughts of killing WCB employees when in fact WCB, DRDRB and the Appeals Commission were simply complying with policy enacted by the WCB BOD. This case points out the fact that workers anger is misdirected by blaming WCB, DRDRB and the Appeals Commission for making decisions based on what was believed to be total ignorance or incompetence or deliberate attempt to defraud workers and employers. While some people may wonder why I am concerned with employers, my involvement with workers compensation is and never was as a worker advocate. My concern has always been fairness and well reasoned decisions by adjudicators. The Judicial Review did conclude with the agreement by all parties including the court that by using impairment ratings as a direct method of rating a disability besides defrauding workers resulted in defrauding employers who were paying workers life time pensions despite the fact that they had no loss of earnings, thereby increasing employers premiums determined by lay people (WCB BOD) who did not bother to read the first chapter, especially pages 4 to 18 of the AMA Guides which had they done this they would have most likely not enacted the policy equating an impairment to a disability.
The adjudication of all claims are based on the WCA, WCB policy and WCB Regulations. The WCA and WCB Regulations are enacted by Government. WCB policies are enacted by the WCB BOD who are selected by the Alberta Government on the basis of having an equal number of the BOD representing workers, employers and the general public. The selection process is supposed to ensure that policies enacted by the WCB BOD are reviewed by the equal number of worker representative, employer representative and public representatives. How or why the WCB BOD enacted policy that used impairment ratings as a direct method of rating a disability whether this was done blatantly or maliciously or whether through ignorance or incompetence as the AMA Guides specifically states on page 13 per verbatim;
Impairment percentages derived from the Guidescriteria should not be used as direct estimates ofdisability. Impairment percentages estimate the extent of the impairment on whole person functioningand account for basic activities of dailyliving, not including work. The complexity ofwork activities requires individual analyses.Impairment assessment is a necessary first stepfor determining disability.
It was determined by the Court that the WCB, DRDRB and the Appeals Commission were forced by statute to comply with the BOD who through the enactment of policy by the WCB BOD that impairment ratings must be used as a direct method of rating a disability even though the AMA Guides directed that impairment ratings not be used as a direct method of rating a disability. In affect the WCB BOD were totally blamed by the Court, WCB Legal Counsel and the Appeals Legal Counsel for defrauding workers and employers out of millions of dollars of compensation and no one could do anything about it because Section 6 (a)(i) of the WCA states that;
The board of directors
(i) determine the Board’s compensation policy, and according to the Court, WCB Legal Counsel and the Appeals Commissions Legal Counsel left them with no option but to use impairment ratings as a direct method of rating a disability even though it was illegal and determined by three different provincial courts in Alberta, Nova Scotia and the Yukon to be illegal and that they must follow the policy enactment of the WCB BOD even if using impairment ratings used as a direct method of rating a disability is inappropriate and contrary to the WCA.
An example of criminal fraud and supported by the Calgary Commercial Crimes Unit was presented to the Court through the enactment of the WCB BOD policy where a worker who was totally disabled would receive a partial disability pension by using impairment ratings as a direct method of rating a disability rather than using pre-injury earnings as a reference to post injury earnings as they began doing on Jan 1, 1995 after the Court of Queens Bench and the Alberta Court of Appeal determined that using impairment ratings in determining disability was not in compliance with the WCA. For example: If a worker had a 20% PCI rating, this rating would be used to determine a disability rather than using pre-injury to post injury earnings to determine a loss of earnings. An actual case (my client) was presented to the court involving a 1988 accident where the worker’s 90% of net resulted in pre-injury earnings of $14,000 a year and his post injury earnings was zero dollars resulting in a $14,000 net loss of earnings annually. Rather than pay a worker a $14,000 loss of earnings, WCB, DRDRB and the Appeals Commission would through the BOD policy by using impairment ratings as a direct method of rating a disability would multiply $14,000 net earnings times 20% which equals $2800.00 which is $11,200 less than what a worker is entitled to resulting in defrauding a worker, forcing the worker into poverty, family breakups, suicides and intentions of killing WCB employees when they were simply following WCB BOD policy. On the other hand the same worker earning pre-injury earnings of 90% of net of $14,000 a year with no loss of earnings when multiplied by 20% would receive $2800 a year for the rest of his/her life despite having no earning loss thereby defrauding employers. Worse yet, workers who did not receive an impairment rating (0%) and had a loss of earnings would receive nothing as multiplying any amount of money by 0% results in zero loss of earnings. Questionably also is why would WCB pay life time pensions to workers who have difficulty in defecating, urinating, brushing their teeth, combing their hair, getting an erection, reaching a orgasm and still are capable of working. That does not make sense but apparently it makes sense to the WCB BOD and embraced by WCB, DRDRB and the Appeals Commission and that is precisely what impairment ratings are used to assess. Impairment ratings have got nothing to do with the ability to work and determining an earning loss. This is the shit system that the Government has forced onto workers and employers and administered by a bunch of highly paid goof balls. A good example of this shit show can be found by reading the first Appeals Commission decision that comes up when you input “permanent clinical impairment” is Decision 2003-873. The worker was provided with a 8.13% PCI rating which these pathetic morons used as a direct method of rating a PPD of 8.13% and were paying him a lifetime pension despite the fact that he had no earning loss as stated in para 13. Why would any one pay this worker a lifetime pension when he had no loss of earnings. This basically results in defrauding the employer by having to pay a lifetime pension to a worker who had no loss of earnings and in reality received a windfall gift from WCB at the expense of the employer. On the other hand this same worker who may have been an older uneducated heavy manual laborer who could not adapt to performing other work would receive the same 8.13% PPD derived form a PCI and determined to be totally disabled but would receive only 8.13% of 90% of net earnings. These are the highly paid morons, supported by the Government who decide what workers are entitled to and employers are paying out when there is no loss of earnings.
In legal terms, the WCB BOD are or were acting in bad faith as well as misfeasance in public office by using impairment ratings as a direct method of rating a disability despite clearly written language in the AMA Guides specifying that impairment ratings cannot be used as a direct method of rating a disability.
It is noted that the WCB BOD are not protected by legislation and are not entitled to making what may have been an honest mistake unlike WCB, the Appeals Commission and Medical Panels who are not culpable and cannot be sued. The WCB BOD can be sued as they have no protection under the WCA. Being that the WCB BOD are selected by the Government, it is apparent that the Government has to direct the WCB BOD to rescind their policy of using impairment ratings as a direct method of rating a disability prior to Jan 1, 1995, grandfather all claims and pay workers what they were and are entitled to. As well, workers who did not have any earning losses but received life time pensions, WCB must be directed to reimburse employers for any increases in their premiums or change their experience ratings to reduce their premiums.
Questionably is if the Government does nothing it would question their sincerity to make changes and correct the wrongs to workers and employers. By correcting what was and is an abuse of power, bad faith and misfeasance in public office by the WCB BOD prior to an election, it may result in more people voting NDP rather than Conservative as all of this fraud occurred under the regime of the Conservative Government who must have known of the massive fraud but did nothing. Having had more experience than any one else over the last 30 years with the adjudication of claims, I remain convinced that the best thing for workers and employers is to have the Government simply abolish the entire system rather than have workers gullible to believe that the system was established to assist them and then find out that this was nothing but a lie. That is a fallacy as the system has a history of destroying lives and the only reason it exists is to protect the employer from litigation as witnessed by a recent decision of a court in the U.S. awarding 14 million dollars to a worker’s estate after being diagnosed with mesothelioma and dying and whose employer did not have workers compensation coverage who had opted out. Had the employer been covered under workers compensation, the employer would not have been sued and the estate of the worker would have wound up with peanuts.
The Government by forcing workers and employers into one of the most corrupt organization in the world created the darkest day in human history. I say this because it is true. Prior to June 1, 1996, Case Managers would advise workers to apply for CPP disability benefits to increase their ELS. Workers would apply for CPP disability benefits believing that the additional pension would help them pay for the necessaries of life. When their application for CPP benefits was accepted, worker’s entire CPP disability pensions were immediately seized and their ELS was reduced or eliminated. Other provinces because workers pay 50% of the premiums, could legally claw back only 50% of workers CPP disability unlike Alberta who clawed back 100% of the CPP disability pension depositing this money in the accident fund, thus resulting in workers subsidizing employers in this province by reducing the amount of premiums employers pay. Although, WCB stopped clawing back CPP disability pensions on June 1, 1996, workers whose injuries occurred prior to June 1, 1996 still continued to have 100% of their CPP disability pensions clawed back. Besides this, Case Managers would advise workers that in order to get work, they would have to lie about their health and ability to work. I have verified this with workers and employers who had the belief that if a worker signed a contract and swore that they had no health conditions this would be a valid legal contract. In reality it was nothing more than a piece of paper that meant nothing.
Interesting in the Judicial Review, the Judge commented on the Penny case questioning her ability to read and comprehend the decision. According to her version of the Penny case, the Alberta Court of Appeal did not uphold the decision of the Court of Queens Bench that using impairment ratings as a direct method of rating a disability was not in compliance with the WCA. According to her, the Alberta Court of Appeal disagreed with the Alberta Court of Queens Bench and drew my attention to para. 14 of the Penny case and I advised her that when reviewing any document, you do not read one part of the document, you read all parts of a document. I asked her if in fact the Alberta Court of Appeals had not agreed with the Alberta Court of Queens Bench, then why did the Alberta Court of Appeals dismiss the appeal of the Alberta Appeals Commission. She refused to answer and sat their dumbfounded that I was questioning her ability to read and comprehend what she was reading. Overall, she was a very nice lady and did allow the case to proceed with very little of the usual court procedures.
As usual even after the Judicial Review, I had and will proceed with a back up plan as I did expect to lose because of the WCA supporting an administrative system where policy is enacted by goof balls that cannot be questioned by adjudicators and the courts but can be remedied by Government intervention. Fortunately, I was retained by the worker at no cost and unlike other workers who retain lawyers or worker advocates who charge thousands of dollars for retainer fees as well as costs and disbursement the worker I represented is not being left with massive debt despite losing the Judicial Review.
My back up plan is to file a complaint with the Office of the Ombudsman to investigate whether the fraud was the fault of the WCB BOD or was the WCB BOD’s policy of using impairment ratings as a direct method of determining a loss of earnings a misunderstanding by adjudicators. On review of the WCA and WCB policy there is nothing in either one that directs that an earning loss is to be determined by multiplying 90% of net earnings by an impairment rating, thus possibly exonerating the WCB BOD. I am presently writing up the complaint to the Ombudsman and when completed I will send a copy of the complaint to every one and especially to those workers whose accidents occurred prior to Jan 1, 1995 who were defrauded by determining an earning loss by multiplying 90% of net earnings by an impairment rating. I believe that all workers should send in the copy of my complaint that I will send to every one as an attachment, edit it where necessary based on their own circumstances and simply sign their name to the document and send it in and wait for the Ombudsman to respond. This will also determine whether the Ombudsman is simply a yes person for the Government and refuse to upset the sacred cow or will actually recommend to the Government to reimburse employers and pay workers what they were entitled to.
Click on the following link:
Just because the WCA protects employers from civil litigation, there is
nothing in the “Act” that protects WCB from civil litigation.
Questionably is why the burden of proof is placed on workers when the
burden of proof is and always has been on the “Board”. Not only is the
burden of proof on the “Board” to prove causation, they also have the
burden of proof to provide evidence of an alternate cause. If not, the
claim remains in a neutral state and the benefit of doubt goes to the
Determining causation according to the SCC does not depend on medical
certainty as this is too high a standard and all that is needed is to
determine that the work environment was a contributing factor, even a
trivial contributing factor. Workers compensation systems are
prehistoric remedies that a hundred years ago may have had some
significance but in today’s world, there are better systems that
guarantee acceptance of claims without spending decades fighting for
compensation when a mandatory system that does not depend on causation could be brought in which would more than likely result in getting rid of a lot of deadwood at WCB and forcing doctors to get real jobs rather than providing medical opinions that are based on nothing but their
I have in the last several years assisted two workers, one whose claim
goes back to 1973 and another to 2009, both long standing claims which
are now under investigation by WCB due to obvious errors by the WCB,
DRDRB and the Appeals Commission. I suspect that the decisions were
deliberate but I cannot prove malice or deliberate denial of the claims,
therefore I have no choice but to call them errors. As well a Judicial
Review is coming up on Feb. 20, 2019 specifically on how impairment
ratings have been illegally used as a direct method of rating a
disability. On top of this I have the Fair Practice Office attempting to
determine who has the burden of proof and who has the burden of proof of
an alternate cause which is how the inquiry system is supposed to operate.
The writer also hit the nail on the head when it is a proven fact that
workers whose claims and benefits have been illegally denied are being
supported by taxpayers through our health care plan and social
services. Of course no government wants to admit that this is the way to
keep premiums low to benefit the economy.
According to the historic agreement, adjudication within the workers compensation system is supposed to be based on an inquiry system, not an adversarial system. At some time in the past, this all changed from an inquiry system to an adversarial system. Rather than a worker being a claimant, they are considered to be the person bringing forth an action as a plaintiff. No one including Notley, Gray, Ganley or the former Conservative Government would explain or define what an inquiry system is based on.
I have had over the last several years, had to argue that the burden of proof is on the Board with Case Managers, DRDRB and the Appeals Commission who are adjudicating claims based on civil law which is clearly the incorrect legal standard in workers compensation. Yesterday, I talked to a Case Manager who in a case I am representing a worker argued that the burden of proof is on a worker, not the Board. I attempted to explain to her how an inquiry system is supposed to work and she said that has has no idea what an inquiry system is and that all her colleagues place the burden of proof on the worker despite the WCA and WCB policy that clearly places the burden of proof on the Board. I have had that same argument presented to me by a senior member of the Appeals Commission during a heated discussion at an in person hearing, who is a lawyer and oddly enough makes over $175,000.00 a year as a hearing chair. Her argument was quashed at a Judicial Review by a Court of Queens Bench Judge who had to explain this to the Appeals Commission’s and WCB’s legal counsel how an inquiry system works and how it differs from civil law.
A number of years ago, I had a letter from a former Minister in charge of WCB who told me that WCB rarely if ever performs any investigations involving a claim because it was to time consuming and expensive thus resulting in numerous claims being denied because WCB did not do their due diligence to perform any investigations and when the claim was illegally denied, the blame for not providing the evidence was placed on the worker who they claim has the burden of proof, not WCB.
Oddly enough, the Appeals Commission when a worker requests to subpoena a witness or witnesses, the Appeals Commission refers to the Alberta Rules of Court which are rules for civil procedure where a plaintiff who brings an action has to pay for the attendance of witnesses which they should. Why should workers have to pay for the attendance of witnesses when WCB can have witnesses subpoenaed and have the witnesses conduct fees paid out of the accident fund. Questionably is why WCB Medical Advisors who are the worst offenders when knowingly providing false medical evidence do not have to sign an affidavit to swear that the evidence they are submitting is true and when it is proven to be false, they should be charged and imprisoned.Section 151.1(1) does make it illegal for any one to provide false or misleading information to the Board and that would include their own employees. According to Section 152(1) of the WCA a person can be fined up to a maximum of $25,000.00, a further fine of $10,000.00 a day if the offense continues or in lieu of a fine be imprisoned for a period not exceeding 6 months. Problem is that we have a Justice Minister that would not allow charges against any one in the system, thus negating the WCA. What is the point of enacting laws if these laws are not used to punish people for contravening the law.
While it cannot be disputed that WCB places the burden of proof on workers, the Appeals Commission also places the burden of proof on the worker. This fact is presented in their rules specific to reconsideration where they do in fact undeniably place the burden of proof on a worker. This is proven by the Appeals Commission stating that “with due diligence, the evidence could have been presented at the previous in person hearing. What evidence could be presented when WCB has exclusive jurisdiction to gather the facts and their own policy directs that they perform a thorough investigation to gather the facts. A good example of this is in a case where a Case Manager lied about the employer offering modified work and the employer and worker both presented evidence that there was no offer of modified work. WCB and the Appeals Commission acknowledged that modified work was never offered but refused to pay the worker the loss of earnings he was entitled to and had been directed by the Court of Queens Bench to pay the worker $9000.00 in earning loss. This was refused by the Appeals Commission who should have complied with the Judge, sent the claim back to WCB and direct that this sum be paid. Instead, Wispinski, the now head of the Appeals Commission represented the Appeals Commission which questions her ethics and sense of decency to represent a body who would defraud a worker from what he was entitled to and his entitlement had been determined by a Judge. The second incident I was involved in and still am is specific to concurrent earnings. The worker at the time of her injury had two sources of income and WCB did not investigate contrary to the WCA and their own policy. and using only the one income to determine an ELP. Once this was brought to their attention, they denied the second concurrent earnings because they believed that the worker had the burden of proof to provide this evidence. Most, if not all workers have no idea what concurrent earnings are and would not have the knowledge to question WCB as to why only their earnings from the accident was used to determine a loss of earnings. Gathering this evidence is the sole responsibility of WCB, not the worker. These are fundamental questions that WCB must ask a worker during the course of their investigation.
In reviewing the revised WCA, it appears in the preamble that the purpose of the workers compensation system is to provide appropriate compensation to workers and the central focus of the workers compensation system is the health and well being of workers, this is a lie and is proven to be a lie based on my own personal experience in the workers compensation system. The central focus of all workers compensation system is to protect the accident fund to maintain low premiums for employers to encourage or maintain employment. Accepting claims and benefits destroys jobs and the economy as opposed to denying claims and benefits that increases employment and the economic benefits of low premiums. What was considered the “grand bargain”is not and has not been a grand bargain for workers but has been a grand bargain for employers who cannot be sued and have their premiums subsidized by tax payers who pay taxes and these taxes are used to provide income support for disabled workers through social assistance. As well, Alberta Health Care provides medical care and benefits for disabled workers. No one can deny that this is not true. If it was not true, then then why are there so many disabled workers on social assistance. If a person can name one, one is too many and when naming one, some one else could name other disabled workers who are on social assistance. Why is the Government so secretive about this. Perhaps this would be a request submitted to FOIP. Obviously, the Government knows when a person applies for social services what medical condition they have that is considered to be prolonged and severe and whether the injury or disease is work related or not work related..
If in fact, the Fair Practice Office does determine that the Board has the burden of proof in an inquiry system, the only remedy is to re-adjudicate all long standing claims on the correct legal standard and in compliance with Section 157.1 rather than to continue to believe that the Government and the courts should provide deference to the Appeals Commission when they have been adjudicating claims on the wrong legal standard. While it is not surprising that Case Managers and the DRDRB would not be expected to understand the difference between an adversarial system and an inquiry system, Appeals Commissioners who earn close to two hundred thousand dollars a year should not be pleading that they were making honest mistakes by using the incorrect legal standard when adjudicating claims.
WCB is sending a message to workers who have long standing claims that to have their claim accepted or to receive any benefits, that a worker must commit suicide, threaten to commit suicide, attempt to commit suicide or threaten to kill WCB employees or Appeals Commissioners. Gregory Jacks committed suicide and WCB apologized to his family and provided compensation to his widow. Another fellow set himself on fire and received compensation. Patrick Clayton threatened to kill WCB employees and was sentenced to prison. When he got out, he received compensation for his work related injuries which indicates that had WCB provided him with compensation he was entitled to, he would have not of had to threaten to kill WCB employees and then be sentenced to prison. I have a copy of one of his checks for fifteen thousand dollars presumably for a NELP as WCB did not explain what the fifteen thousand dollars was for with several hundred thousand dollars still coming in for an ELP. Obviously this should indicate to workers that to receive their entitlements, they have to either commit suicide, threaten to commit suicide, attempt to commit suicide or get a shot gun, take hostages and threaten to kill WCB employees.
Rather than continue beating my head against a wall arguing with Case Managers, DRDRB and the Appeals Commission, I sent the following letter to the Fair Practice Office who now have to explain what an inquiry system is and who has the burden of proof in an inquiry system.
Fair Practices Office
Braithwaite Boyle Building
602 1701 Centre Street NW
Dec. 3, 2018
This is a question that needs answering. Workers compensation in Canada is based on an inquiry model, not an adversarial model. There is no one who disagrees that workers compensation is based on an inquiry model, yet there is a reluctance by WCB, DRDRB, Appeals Commission or the Alberta Government to explain how an inquiry system works. The question that seems to be evasive is “who has the burden of proof in an inquiry based system”.
The gold standard for adjudicating claims in Canada is found in Dr. Terrence Ison’s book Workers Compensation in Canada 2nd Edition. According to Dr. Ison who was Canada’s foremost expert on workers compensation systems who is now deceased, he states in his book, “The Acts provide for an inquiry system, not an adversarial system. There is, therefore no burden of proof on any one except the Board. In common law litigation, it is normal to place the burden of proof upon the plaintiff and in medical science, the negative is commonly assumed from the absence of positive data. Neither of these approaches is appropriate to a workers compensation system operating in an inquiry model. The worker, the employer and the attending physician are responsible for supplying information to the Board which is within their power to provide. With regard to any other information that may be required, the obligation rests with the Board to make the necessary inquiries. The absence of any evidence on any point leaves the adjudicator in a neutral position that calls for further inquiry. It is not a ground for any particular conclusion. Where an injury arose in the course of employment, the claim must be allowed unless there is affirmative evidence of an alternate cause and evidence that the employment was not contributory”
In the workers compensation system in Canada, adjudication by WCB, DRDRB and the Appeals Commission is therefore not based on the correct legal standard as the burden of proof has been placed on the worker as evidenced by numerous decisions of the Appeals Commission. As noted by the SCC adjudication in workers compensation systems is based on a lesser standard than civil standards, which ranges from a trivial contributory factor to a balance of probabilities. If a claim remains in the neutral state, the benefit of doubt is supposed to go to the worker. Many claims submitted to WCB have unknown etiologies which should result in a neutral state but the claim is denied despite no evidence to the contrary. If in fact it cannot be determined whether an injury or disease arose out of and occurred in the course of employment, WCB must provide an alternate cause as the negative cannot be assumed from the absence of positive evidence.
On Judicial Review where I was allowed to represent a worker, Justice Bruce Millar had to explain to the Appeals Commission Legal Counsel and WCB Legal Counsel that in an inquiry based system the burden of proof is on the Board and not on a worker. This decision is not on Canlli but I have the transcript of the action and Justice Millar’s explanation. This question was also asked to the Office of the Ombudsman and the Ombudsman also verified that in an inquiry system the burden of proof is on the Board.
Section 17(1) of the WCA provides exclusive jurisdiction to the Board to examine, inquire into, hear and determine all matters and questions arising under this Act. Read correctly, only the Board has jurisdiction to gather evidence and it would be contrary to the Act for a worker to gather any evidence which thus would prohibit a worker or an employer from having any burden of proof. Section 17(4.1) also provides direction to adjudicators that when a claim remains in a neutral state, the benefit of doubt goes to the worker. Section 20 of the WCA also gives WCB all the powers, privileges and immunities of a commissioner appointed under the Public Inquiries Act. Questionably then with absolute and exclusive jurisdiction to gather evidence, how then could the burden of proof be put on a worker or an employer.
Adding to this is WCB Policy 02-01 Part I, it states in part, “When WCB is notified of an accident, it initiates inquiries to obtain all relevant evidence and adjudicates the eligibility of the claim based on the weight of that evidence” Interpretation 4 of the same policy then states “if the information received on the required reports is not sufficient to adjudicate the claim, WCB is responsible for gathering additional evidence relevant to the claim”This then is contradicted in WCB policy 01-03 Interpretation I where they state “A worker is not required to prove beyond any reasonable doubt in support of a claim for compensation” This would indicate that the worker is required to bear the burden of proof which in essence is typical of an adversarial system and not an inquiry system where the burden of proof is on the Board.
Going into this further, it is apparent that the “but for” test and “material contribution” test that is used in civil law is being applied in the lesser standard of proof in the workers compensation system. This can be found in WCB policy 02-01 Part II Application 7. Curiously, when reading this policy, WCB places the civil standard on themselves as having the burden of proof, yet when adjudicating a claim, they place the burden of proof on workers. Even in civil law, the burden of proof is shifted from the plaintiff to the defendant if the defendant is more knowledgeable then the plaintiff. Refer to the SCC decision cited as Snell v. Farrell. This case was also based on precedence cited by McGhee v National Coal Board. Clearly, WCB is the knowledgeable party, has exclusive jurisdiction to gather the facts and yet places the burden of proof on workers with no burden of proof on employers questioning what system are adjudicators using, an inquiry system and a lesser standard of proof, an adversarial civil standard where workers filing a claim are considered plaintiffs without any defendants as employers rarely bother to get involved resulting in WCB representing employers as the defendants. This being said, how then would workers have the burden of proof. This is an extremely important question that has to be answered as the Fair Practice Office has a responsibility to ensure the correct legal standard is being used when adjudicating claims.
Sadly enough, the system in Alberta has been broken for years and
questions why the system is not simply abolished as it serves no useful purpose other than to create jobs for doctors who evidently have taken over the system and has become a total disaster. Questionably whether any system can work when the medical profession gets involved and the
whole adjudication process is based on medical opinions as to causation, work restrictions, impairment ratings, compensation, psychological evaluations.etc. Any body, organization or system that is based on doctors opinions are doomed for failure. Workers lives are turned upside down by doctors, especially WCB doctors who provide opinions that are totally false and any one with any access to real medical experts or reliable internet medical information can provide a better medical opinion than WCB Medical Advisors who clearly are not medical experts. I have yet to come across a complex claim and I have reviewed hundreds or thousands of claims.
Why ask doctors anything when the Supreme court of Canada has determined that in the workers compensation system, claims should be based on common sense and logic rather than waiting for decades to determine a claim on medical certainty which in the workers compensation system is not required. No one has to spend millions of dollars on medical studies when the Supreme Court of Canada has determined that in all workers compensation systems there only needs to be a trivial probability of a work related cause.
A much better system could be provided by removing causation from the system and simply going to a system where workers are provided compensation without the need for doctors opinions as to what caused the injury or disease. Who cares other than doctors whose livelihoods are maintained through medical piss fights with each other with the worker caught in the middle. Rather than having employers fund the system which is a lie as employers do not have the financial capability of funding the system so the Government subsidizes the system through our tax dollars by having taxpayers provide income support through Social Assistance and Alberta Health Care. To deny this, a person would have to deny motherhood. A much better system could be put into place where
employers and employees share the cost of premiums with the same agreement where a worker cannot sue the employer or other workers, causation is no longer the deciding factor and every one could get on with their lives with doctors having to work for a living rather than to prey on workers and fill the heads of ignorant Case Managers, DRDRB deadheads and worse yet the apathetic deadhead Appeals Commission who have been given absolute power to destroy peoples lives whose decisions cannot be overturned by the Minister in charge of these retards who in reality are in charge of the Minister.
We elect governments to be innovative, not to carry on with a dead horse that has long been dead but every one is attempting to resuscitate a horse that has been dead so long that all of the body cavities are filled with rot and maggots. We have had numerous investigations over the last 40 to 50 years and none of these investigations have found anything good about the system and attempting to fix the system has been a dismal failure.