Oct 252019

These are the events that are going on in the U.S. with more workers
wanting presumptive status and in all likelihood should receive
presumptive status.

Moving forward to the CEO and President of Workers Compensation Central
is the response of Bob Wilson.

I have attended a number of webinars chaired by Mr. Wilson who is one of
the leading authorities on workers compensation in the U.S. The
enactment of legislation providing special status for any occupational
group opened up a Pandora’s box and has created a two tiered system both
in Canada and the U.S. Emergency dispatch operators in the U.S. should
have presumptive status, but then so should nurses, teachers, customer
service representatives, clerks in gas stations, clerks in convenience
stores, truck drivers, any one driving a vehicle, animal services or for
that matter any one who serves the public or is a resident in the world
we live in. In Canada, presumptive status was never required as in the
U.S. workers compensation adjudication is based on an adversarial system
which is a tort based system involving two litigants, a worker and an
employer who appear before a Judge. The worker has the burden of proof
and if a Judge believes that the evidence supports a claim, then the
burden of proof shifts to the employer.

In Canada, workers compensation adjudication is supposed to be based on
an Inquiry system where the burden of proof, both for and against is on
the “Board” and if the evidence remains in a neutral state, which in
most cases it does, the worker receives the benefit of doubt. The
adjudication of claims in Alberta has taken a sharp reversal of the
inquiry system and has gone to the adversarial system where the burden
of proof is placed on the worker and WCB has taken on the role of a
referee or Judge.

Presumptive status for workers in an inquiry system was never required
and all legislation should be rescinded and the “Board” having to prove
both for and against. A two tiered system is contrary to Section 15.1 of
the Charter as all individuals are to be treated equally which means if
one occupational group is provided special services, then all
individuals are entitled to the same special services. The
epidemiological evidence was flawed as there is no scientific validity
that first responders are any more likely to suffer PTSD, heart attacks,
cancers at a higher rate than any other occupational groups. The problem
with epidemiology or any other study, the correct comparative group must
be selected. Furthermore the Supreme court of Canada has determined that
workers compensation adjudication does not have to be based on
scientific evidence as that is too high a standard. Adjudication is and
should be based on probability and using common sense is what the SCC

Based on probability and common sense, if a first responder filed a
claim for PTSD, I would accept the claim. If a first responder filed a
claim for a heart attack, I would accept the claim. If an office worker
filed a claim for stress related heart attack, I would accept the claim
just as I would if a heavy manual worker had a heart attack performing
heavy manual work on a very cold or very hot day. Adjudicating claims is
pathetically simple if a person is to use common sense and logic
although the problem lies with the adjudicators, they do not possess
common sense and logic and the MLA’s that supported presumptive status
did so based on a knee jerk reaction to something that was never
required. Scientifically it is a proven fact that genetics is the cause
of PTSD and researchers have concluded that people susceptible to PTSD
should be screened prior to hiring them. The following link contains the
information attributing genetics to
PTSD. https://www.hsph.harvard.edu/news/press-releases/molecular-genetic-evidence-ptsd-heritability/

Aug 062019

By Gerald

A new study has come out determining that firefighters diagnosis of PTSD is far less of a risk than any other workers and questions why firefighters have been provided presumptive status for PTSD. Firefighters also have a far less chance of contacting cancer, heart attacks than other workers who are exposed on a daily basis to known carcinogens and the incidents of heart attacks. White collar workers and shift workers have a far higher risk of CVD than do firefighters or first responders. Lately, class action law suits involving “Roundup” has resulted in Bayer having to potentially have to pay out billions of dollars to settle thousands of law suits that have been heard by the courts and other claims pending. Roundup has been speculated to cause numerous medical conditions due to the use of glyphosates and the additives which has entered our food chain with a bigger effect on children due to consumption of cereals that have been used to treat crops. The toxicity of glyphosates are controversial as there is a divided opinion among experts as to whether they are safe.

Click on the following link: https://www.workerscompensation.com/news_read.php?id=33303

Jan 222018

By Gerald

Click on the following link: https://www.alberta.ca/release.cfm?xID=522899A395324-C302-107C-BCF199961973BE25

While I have nothing against presumptive status for all workers, question is whether it is legal to provide presumptive status to one occupation and not to all other occupations. Unfortunately, under Alberta Human Rights Legislation as is other provincial and federal legislation it is legal to discriminate based on a person’s occupation as a person’s occupation is not within the protected grounds or group characteristics that are protected. In other words if a person or group is not within the protected grounds under provincial legislation or federal legislation, then equality does not apply, however under the charter, section 15.1 of the Charter, every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination. 

The Alberta Human Rights Act is like any other poorly written legislation. In the introduction, the “Act” states that it is a fundamental principle and a matter of public policy that all persons are equal in: dignity, rights and responsibilities. The “Act” then contradicts itself then by excluding equal protection for every one other than the individuals or groups that fit into the protected categories. Occupation is not included in the protected category. Oddly enough, nor was gender identity, gender expression, or sexual orientation which was added, yet the Government would not add occupation. I did file a human rights complaint after presumptive status was enacted in legislation for firefighters and although the Alberta Human Rights Commission agreed that the legislation resulted in differential treatment, by law they did not have jurisdiction to include occupation in the “Act”. My complaint was dismissed which in all fairness was a good decision. I was advised to file a complaint with the Office of the Ombudsman which I did. They also agreed that the legislation did result in differential treatment and they could not change legislation. It was recommended that I contact the Minister of Justice Jonathon Denis whose office responded but suggested that there was nothing they could do which in reality was that they would not do anything because if they did add occupations to the protected category, the Government and the opposition who had voted in favor of the Magnus “Bill” would look like a bunch of morons 

The introduction of presumptive status for firefighters was first introduced in Canada by  the Manitoba government by copying the introduction of presumptive status for firefighters by their neighbor, Minnesota. Problem with this is, in Canada adjudication in all provinces is supposed to be based on an Inquiry system not an Adversarial system which is used in the U.S. where the burden of proof is on the worker and the employer. In Canada, in an Inquiry system, the burden of proof both for and against is on the “Board” Some how, the system in Canada has gone from an Inquiry system to an Adversarial system and the burden of proof has been illegally placed on the worker.

Firefighters by law, should have never had to prove causation and employers did not have to prove contrary which is the way an Inquiry system works. Because the benefit of doubt has to always go to the worker, all workers have presumptive status when the claim remains in the neutral position.  Because no one knows what causes cancer, all claims would remain in the neutral state. If in fact we knew what causes cancer, we would have come up with a cure by now. Providing presumption status only for fire fighters  for myocardial infarction is another gross injustice to other workers when workers such as office workers are more at risk than a firefighter due to the sedentary nature of their job. The same goes for PTSD which can happen to anyone even when diagnosed with a terminal illness such as cancer. Further to this is in proving causation, adjudication is supposed to be based on a balance of probability and not on medical probability which is far higher than the legal standard. It does not have to be proven that any occupational group has to prove that they are double the general population risk, triple or 20 times the risk. In fact, if epidemiological studies would perform a risk analysis on most occupational groups and compare the risk to the general population, it would be determined that there is a higher risk. For example: workers performing repetitive work over prolonged periods of time have 20 times the risk of cumulative trauma disorders such as carpal tunnel syndrome, tendinitis, pulled ligaments or any other injury to the upper extremities.  As well, these same workers have a much higher risk of vascular disturbances to the upper extremities ( Schedule B Section 8) when blood flow to vital parts of the upper extremities is reduced resulting in abnormal bone formation during the bone remodeling process that is subject to stress fractures that would not affect normal bone. This results in sever medical conditions such as avascular necrosis of the scaphoids (Preisers disease) or avascular necrosis of the lunate (Kienbocks disease) which are recognized by experts as being work related but never accepted by WCB, DRDRB and the Appeals Commission who do not have any medical expertise and wouldn’t know Preiser’s disease from hemorrhoids. Section 24(6) of the WCA deems that “all” workers employed in an industry within the last 12 months are deemed by the regulations to have caused that accident and thus is not discriminatory questioning why the Government provided presumption status only to firefighters and first responders which is discriminatory. Epidemiological studies have also determined that workers in occupations where they are exposed to harmful carcinogens on a daily basis have a much higher risk than firefighters. That being the case then why is the government not enacting presumptive status for workers in these occupations. Would the Government bring in presumptive legislation for firefighters and first responders in the criminal justice system where only firefighters and first responders would be presumed innocent until proven guilty and all other individuals would be considered guilty and have to prove their innocence.

The presumption for firefighters was introduced by Richard Magnus who I knew quite well as he was my Alderman in Calgary. We argued over his introduction of the “Bill” as in my opinion, under an Inquiry system, firefighters did not have to prove causation and furthermore the “Bill” was illegal under the Charter. Richard, not being a lawyer or having any knowledge of the historic agreement specific to an Inquiry system and burden of proof  had no idea what I was talking about and went ahead and sponsored the “Bill” which was enacted by the Conservative Government when Clint Dunford was the Minister in charge of WCB. I also argued with him and he also had no idea what I was talking about. The issue specific to how long a firefighter must work in their occupation before presumptive status begins has gone to the courts in several states as being unconstitutional or discriminatory. A firefighter was diagnosed with cancer after two years of employment and the required time was ten years. The court determined that length of exposure was discrimination ion and overturned the denial of his claim. 

As far as burden of proof goes, workers do not have any powers of investigation, so why would any one put the burden of proof on some one who by law and policy makes it illegal to gather evidence. This is supported by the WCA Section 17(1) that gives WCB “exclusive” jurisdiction to examine, inquire into, hear and determine all matters. Surely, the Government knows that the word exclusive jurisdiction excludes everyone including workers from gathering evidence, yet the Government sits back and do nothing when WCB, DRDRB and the Appeals Commission places the burden of proof on workers.

If in fact any worker whose claim was turned down would take the issue of presumptive legislation to the courts contrary to Section 15.1 of the Charter which provides presumptive status to an identifiable occupational group and not providing presumptive status to all occupational groups according to numerous lawyers, the worker would win.

Oct 042017

By Gerald

I have reviewed the submissions presented to the WCB Review Panel by the numerous parties such as Adorn Consulting, Alberta Construction Association, Alberta Federation of Labor, various unions, Friends of Medicare, Canadian Federation of Independent Businesses to name a few who offer their concerns and recommendations but the concerns and recommendations fall far short of what the primary problems are. Organizations that provided any meaningful and useful input into the problems that workers have when filing a claim with WCB are the Canadian Injured Workers Association of Alberta, who had the benefit of having thousands of worker’s input into how the system failed them. Other organizations especially AUPE, Worker Advocates, Friends of Medicare and Unions representing Alberta unions also provided useful input and recommendations. The firefighters concern and recommendations are based on selfishness as all they are concerned with is how their claims are adjudicated and have no concern as to how other more vulnerable workers claims are adjudicated. Other workers do not have the luxury of having dual disability insurance, both private and WCB disability insurance and if WCB denies their claim, private disability insurance accepts their claim and provides short term or long term disability benefits without having to fight for decades to have a claim accepted and benefits provided. 

The least useful and predictably so is the input from employers who gullibly believe that the system provides a fair method of adjudicating claims with no concerns as to how WCB, DRDRB and the the Appeals Commission are performing their jobs. Of course if employers premiums are the lowest in Canada and they receive billions of dollars in rebates, why then would a person complain. Employers have no idea what goes on during the appeals process as for the most part it is rare for an employer to get involved in the appeals process as they are adequately represented by WCB and the Appeals Commission with the WCB being an employer( member of the Alberta Chamber of Commerce) who pays premiums to themselves and the Appeals Commission who are selected by the Alberta Government who also are employers paying premiums to an arms length Government monopoly. In effect workers are left on their own to fight WCB and the Appeals Commission rather than an employer and have the impossible task of fighting two employer represented bodies with unlimited powers, unlimited financial power to buy medical opinions and control the court process if workers are able to take their claims to the courts. Unfortunately, the courts also do not have the power to overturn a decision based on fact and forced by legislation to defer to the decision of the Appeals Commission who are far from being experts in determining the facts as in nearly all cases, the facts have never been investigated and if gathered are biased by the body who are by statute and policy are required to perform a thorough investigation but rarely ever do. Employers have no idea of the billions of dollars that they and workers have to pay in excess taxes to fund Alberta Social Services, Alberta Health Care and also pay premiums to CPP. 

Of note and it is a good recommendation by employer groups is to have an office of the appeals advisor for employers as there are numerous small employers who like workers have no idea of how the system operates and cannot afford to pay for representation. Both of the Office of the Appeals Advisor for workers and employers must be independent of WCB and staffed by lawyers who are experts in workers compensation issues and paid out of the accident fund. I also like the idea of a WCB Ombudsman or Fair Practices Officer which I recommended nearly twenty years ago to Justice Friedman.

Workers Compensation Regulations have to be revised with no exemptions for any employer from having WCB coverage if changes to the workers compensation system results in better decisions that favor workers to eliminate any possibility of workers becoming a charge on family, friends and society which is the whole idea of the Meredith Principles. The regulations also have to be specific as to the amount of exposure required by specifying in column 2 of Schedule B of the Regulations, rather than significant exposure with reference as to where this information was obtained. Most if not all allowable exposure levels were determined over 40 years ago and have never been updated. A particular disturbing presumptive description of a work related occupational hazard occurs in point 8 column 1 of Schedule B specific to “Vascular disturbances of the extremities” which is explained in Column 2 of Schedule B which species only one cause , vibration without specifying other causes such as repetitive actions of the hand and wrist which causes reduced flow of blood to the upper extremities resulting in through the bone modeling process, the formation of abnormal bone which is susceptible to micro-fractures when workers are involved tasks that require high grip and pinch strengths leading to what is referred to in the literature as insufficiency fractures that if not treated results in avascular necrosis of the carpal bones, especially the scaphoid bone (Preisers disease) and lunate (Kienbochs disease) which are work related occupational injuries. Most doctors have no idea how the mechanism of reduced blood flow due to repetitive actions of the hand and wrist can result in micro-fractures to the carpal bones due to overloading of abnormal bone. 

Whether the WCB Review Panel likes it or not, I believe that there are some claims that have to be referred to to get a good understanding of why all long standing claims must be heard. I filed a claim for bilateral avascular necrosis of the scaphoids on behalf of a worker and the claim was denied through all levels of appeal based on the false work description provided by the employer and reviewed by a WCB Medical Advisor who provided an opinion based on the false description of the work activities. WCB refused to provide an ergonomic assessment of the work place and I then requested that this be done by Alberta OH&S by an expert in ergonomics. Despite the objections of the employer and WCB, OH&S performed an ergonomic assessment which supported the claimant’s description of the work activity and proved that the employer was lying. I requested a reconsideration by the Reconsideration Threshold Panel and based on the new evidence presented numerous medical opinions from all WCB Medical Advisors and as well as an outside Occupational Specialist and Hand Surgeon along with medical literature supporting causation, the Reconsideration Threshold Panel determined that there was a causal relation, overturned the decision of the original Appeals commission denial and sent the claim back to Customer Services. Customer Services despite absolute evidence to support the claim, denied the claim, the denial was upheld by the CSRC and went back to the Appeals Commission who then denied the claim despite absolute evidence supporting the claim by all private and WCB Medical Advisors who supported the claim. The reason why the claim was denied by the Appeals Commission was that George Pheasy decided that with due diligence, the ergonomic assessment should have been performed prior to determining causation and all the doctors opinions supporting causation could have with due diligence been provided by the worker supporting causation and should have been provided at the first appeals commission in person hearing. In affect all medical opinions were disregarded, medical literature was disregarded by the Appeals Commission and despite the fact that causation had been established based on medical fact, the Appeals Commission blamed the worker for not investigating and providing the information prior to their decision. In effect, the Reconsideration Threshold Panel disagreed with the original Appeals Commission and George Pheasy resulting in the same bodies within the Appeals Commission, Appeals Commission and Reconsideration Threshold Panel disagreeing with each other. The question then is who must investigate and gather the facts, is it the worker or the “Board” Who has the burden of proof and why would the burden of proof be on a worker when they do not have the powers of investigation. Why should a worker be held accountable for an employer lying about how work is performed and then having doctors providing medical opinions based on their belief that the employers false work activity has been been investigated by WCB and is found to be accurate. Denying a claim supported by all doctors and medical science is an abuse of power, an act of bad faith and most likely criminal fraud, yet no one wants to prosecute any one within the WCB system and most likely couldn’t any way because according to the WCA, WCB and the Appeals Commission can make an honest mistake. (LOL)

I take exception when any one accuses all WCB Medical Advisors as being biased or corrupt when in fact there are many WCB Medical Advisors who are good honest doctors who provide opinions on what they believe is true. Case Managers will with hold evidence from doctors who become victims of WCB by being lied to when performing IME’s or providing medical opinions. The ergonomic assessment that I have referred to performed by OH&S was deliberately with held by a Case Manager and being that I was in attendance at the IME, I provided the ergonomic assessment that resulted in the Hand Specialist determining a work related cause which the Appeals Commission refused to accept because it was after the fact and they did not want to admit they had made an incorrect decision in denying the claim. I also take exception to people who believe that Medical Specialists know more than a GP as there are many GP’s who take a special interest in a certain medical condition and are far more knowledgeable than a Specialist. 

Of interest is that presumptive status for firefighters which originated in the U.S. under total adversarial civil law where the burden of proof both for and against in all situations is placed entirely on the worker and the employer and then went further to include first responders which has resulted in major complications and financial burdens on tax payer with respect to PTSD claims. Recent studies have found that 87% of claims for PTSD by first responders are based on fraud as it is relatively easy to go on the Internet and get all the information a person wants on the symptoms of PTSD and then utilize these symptoms to convince a psychologist or psychiatrist to diagnose PTSD. Numerous fire fighters and first responders will submit a claim for PTSD prior to announcing their retirement and then receive compensation on top of their public pensions. The support for fire fighters and first responders as to why they were provided presumptive status in the first place is being questioned in the U.S. as all fire fighters and first responders knew prior to employment the risks they would face in their professions of being exposed to toxins, horrific accidents, violence etc. and thus could have chosen another profession. Unlike the military, civilian firefighters and first responders can hand in their resignation any time they decide to. Clearly,it must be realized and acknowledged that the only reason why fire fighters and first responders were provided presumptive status in the U.S. is that in an Adversarial system, the impossible burden of proof was placed on firefighters to prove causation specific to certain types of cancers as opposed to Canada which is supposed to adjudicate claims under an Inquiry system and thus there was no need to provide discriminatory legislation that favors fire fighters and first responders as common sense and logic based on a balance of probabilities is all that is required by law as evidence that any cancers diagnosed for fire fighters or first responders would most likely be caused by work exposure. Furthermore, causation is supposed to be based on common sense and logic (balance of probabilities) and not on medical evidence as that requires a much higher standard. This higher standard has been determined by numerous Canadian courts to not fit into workers compensation systems but seems to be a problem for WCB and the Appeals Commission to understand.

Having said that in Alberta and the rest of Canada, some one has to determine “who has the burden of proof” in all situations under what is supposed to be an Inquiry system whether for causation, offers of modified work, determination of disability, determination of earning losses etc. It is grossly illogical to provide WCB all the powers of investigation and then place the burden of proof on a worker who does not have the legislative powers to investigate, has relatively little or no knowledge of the system, has relatively little or no knowledge of medicine, has no financial ability to contact medical experts. It is obvious that the WCB BoD do not believe that the burden of proof is on the “Board” as evidenced by the fact that WCB Policy 01-03 specifically places the burden of proof on the worker, Policy 01-08 places the burden of proof on the worker and the Appeals Commission Rules of Procedure also places the burden of proof on a worker by stating that “with due diligence” the evidence that the worker was illegally forced to submit in an Inquiry system could have been provided at the original in person appeal panel hearing. In my humble opinion, in an Inquiry system, any evidence that was not provided by WCB during their investigation is not the responsibility of a worker to provide.  

Basically, workers compensation has very little in common with civil litigation and is analogous to the criminal justice system where there is a victim and the police who are usually considered to be neutral have all the powers of investigation and after a through investigation hands the evidence over to a usually independent Crown Prosecutor who decides if the evidence supports going to trial. In the workers compensation system, WCB is supposed to be a neutral party who investigates and determines whether there is evidence both for and against. In all cases, there has to be two scenarios, either the accident arose out of and occurred in the workplace or the accident did not arise out of and occur in the work place. Both scenarios have to be included in the adjudication process. In other words if an Adjudicator determines that the accident did not arise out of and occur in the course of employment, the Adjudicator then must determine the risk factors and the time and place outside of the work environment that caused the accident. It does not matter in any disagreement, if one person provides an opinion based on some evidence they have read, seen or been told, there has to be some conflicting evidence to contradict the evidence, not simply a negative opinion rebutting the other persons evidence without providing evidence to support the rebuttal. Climate change is a good example; some experts suggest that climate change is a natural phenomena that is simply changes of natural or normal weather patterns that have occurred previously over the last million or more years due to volcanoes etc, other experts suggest it is due to man made causes. Who does a person believe? It is obvious from the decisions made by the Alberta Appeals Commission that adjudication is based on the strict rules of civil procedure where a worker is considered to be a plaintiff bringing an action against a defendant which is not the employer but the “Board” as in nearly all cases, the employer does not attend in person hearings. Obviously that was never the intentions of Meridith to force workers from for the most part a fair and just court system where a worker had all the rights of a natural person into an administrative system adjudicated by incompetent, deceitful, disrespectful people where workers have lost all their rights to a fair and unbiased adjudication of their claims. If I am wrong, then why is it that in every situation upon investigation of WCB, there are glaring deficiencies in the system. After over one hundred years, the system should have been perfected not constantly having to be reviewed for corruption. Obviously no system can operate when the system consists of lay people determining medical evidence that is based on medical opinions from doctors who themselves have no idea whether the opinion they are providing is based on undisputed medical fact, undisputed medical literature or undisputed medical consensus. As with anything, any opinion must be based on a reference to specific literature, the chapter and pages where the medical opinion is derived from.  For anyone who is interested and spends a lot of time reading medical literature on a daily basis as I do, the word “may” is used consistently in medicine rather than the word “will” as it is impossible to determine how each individual based on their genetic makeup will react to prescription medications, toxins, stress, pain etc. and is the reason why there are some people who take prescription medications that result in death for some but total relief for the majority of people. In fact prescription medications are marketed based on the fact that some prescription medicines will cause major side affects and may result in death for some people but if the majority of people receive relief, these prescription medications are allowed to be marketed. 

Some of the responses to questions specific to psychological diagnosis is not complex at all especially when it involves a disabling injury. I have been in attendance at several psychological evaluations and for the most part, the assessment of determining a work related cause is simple. A psychiatrist determines the correct diagnosis from the DSM Manual and the severity of the psychological evaluation. They then consider the past history of a worker before and after an accident by review of a workers medical history. They go into a workers past family history prior to an accident which is very personal and leave nothing to chance. If a worker did not have any mental or emotional problems involving suicidal ideations and homicidal thoughts prior to a disabling accident and they have mental and emotional problems after a disabling accident, then it is easy to conclude that the emotional and mental condition is work related but if a worker has a history of emotional and mental problems such as marital disputes, financial problems etc. prior to a disabling accident it would be concluded that the psychological condition is not work related. In all actuality it is easier to diagnose a psychological disorder especially when the psychological diagnosis is based on a disabling injury than it is to diagnose an acute injury that may not show up on imaging.  More often than not it is Case Managers, DRDRB and the Appeals Commission who cause secondary work related psychological disorders by the inhumane and contemptuous treatment of workers. Although worker suicides or homicides are rarely or if ever reported in the media, most if not all workers have homicidal thoughts of harming the people who have destroyed their lives. All the workers I have talked to have stated that if they knew they could get away with it, they would cause harm to the people who destroyed their life. In a CBC Radio live broadcast after the incident involving Patrick Clayton, I was asked if I thought what he did was justified. My reply was that if local authorities do nothing to fix a broken system then any kind of violence against WCB Personnel was justified. 

The Alberta WCA does not specify as to who has the “burden of proof” . No one in Government, WCB or the Appeals Commission will answer that question. On November 8 and 9th I represented a worker in an in person hearing and was the first question I asked. The Appeals Commission refused to answer the question. I then requested that they file an originating notice for the Court of Queens Bench to answer that question which obviously forms the basis of every claim as without knowing who has the burden of proof, you cannot adjudicate any claim.  It is obvious also that the Alberta Court of Queens Bench also do not know who has the burden of proof in the workers compensation system as this was an issue that was dealt with by two different Judges on subsequent Judicial Review and Appeal. Justice Millar agreed with me that the workers compensation system is based on an Inquiry system and the burden of proof is on the “Board” to prove that modified work was offered and sent the claim back to the Appeals Commission to reconsider their decision to deny the claim and to contact the employer to determine if modified work had been offered. The Appeals Commission refused to contact the employer as directed and again denied the claim despite finally acknowledging that there was no offer of modified work and I was forced to go back to the Court of Queens Bench to rehear the same claim before a different Judge. Justice Yamauchi disagreed with Justice Millar as to who has the burden of proof in an Inquiry system and instead determined that adjudication is based on an adversarial system not an inquiry system and the burden of proof is on the victim (worker) resulting in total confusion as to who has the burden of proof. After over one hundred years, no one knows who has the burden of proof. How can a claim be adjudicated when no one knows who has the burden of proof? 

Questionably is why the Alberta Government does not enact legislation that provides the benefit of doubt to a worker rather than having the WCB BoD determine questions of law which they do not have jurisdiction. Providing a worker with the benefit of doubt when there are differences in medical opinions would make all claims that are supposedly complex, relatively easy as if there is a medical difference of opinion, rather to proceed to a MRP who in most or all cases are not world recognized medical experts and are simply providing more medical opinions that are not based on medical science, peer reviewed medical literature or medical consensus. According to the WCB BoD the benefit of doubt has to be based on medical fact which is not the proper or correct standard in workers compensation systems as medicine is not or rarely based on fact but is based mainly on speculation or in legal terms circumstantial evidence which is used in all legal proceedings but according to WCB cannot be used in adjudicating claims. If in fact the WCB Review Panel would zero in on the two primary problems that I have presented  as to “who has the burden of proof both for and against” and “providing the benefit of doubt in all cases to workers when there was a medical disagreement”, everything else would be totally irrelevant.

Question 17 posed by the WCB Review Panel is an interesting question “Should an option be made available for workers to obtain additional coverage through the WCB? Why or why not?” Why would workers want additional insurance through WCB when WCB does not provide compensation now and is why there is a review as to why the system is not working. The question that should have been asked is “Should employers be mandated to provide private disability insurance that is not based on work related injuries. In my opinion this should be a no brainer as employers and workers at present pay for both private disability and WCB disability insurance (dual benefits) for all public employees and as well as WCB employees to ensure that if WCB denies their claim, then the private disability insurer will accept the claim and pay benefits without going through years of appeals. This being the case then all workers in Alberta should be covered under the same dual benefits as public workers and WCB employees.

Aug 072012


Click on the following link http://www.stalbertgazette.com/article/20120606/SAG0801/306069972/workers-compensation-bill-draws-union-criticism

Other occupations seek better access to WCB coverage for PTSD

By: Megan Sarrazin | Posted: Wednesday, Jun 06, 2012 06:00 am

A government bill aimed at making it easier for first responders to claim post-traumatic stress disorder (PTSD) is facing criticism for failing to acknowledge other vulnerable workers.

The proposed Workers Compensation Amendment Act introduced last week by Dave Hancock, Minister of Employment and Immigration, makes PTSD a ‘presumptive’ illness for first responders including firefighters, police officers and paramedics.

“When you name particular [jobs], you automatically eliminate thousands of others,” said Guy Smith, president of the Alberta Union of Provincial Employees (AUPE). “Restricting it to certain jobs is the wrong way to go about it.”

Although the amendments are a “good first step,” he said they fail to recognize that the illness is present in a variety of occupations dependent more so on the working conditions.

“Anybody potentially can experience a traumatic situation,” he said. “There’s environments all over the place where workers are exposed to traumatic events and situations.”

Current rules require employees to prove that their illness is a result of job-related duties before a claim is accepted by the Workers Compensation Board (WCB).

Shawn Friedenberger, communications advisor at WCB, said the process is the same as any other claim, requiring individuals to tell their employer, doctor and WCB.

“In the case of PTSD, the most challenging component is confirming the diagnosis as doctors follow a pretty precise diagnostic process,” he said via email. “Once the diagnosis has been confirmed … we make sure the trigger that caused the PTSD was work-related and pay any benefits needed.”

This process would remain in place for all occupations excluding first responders, who would not have to prove the trigger was work-related.

WCB records indicate that there were 22 approved claims of PTSD since the beginning of 2010 — only six of which were claimed by first responders.

The remaining cases were claimed by workers in a variety of fields, including transit operators, social workers and accommodation services managers.

Kevin Grabowsky, regional president for the Union of Canadian Correctional Officers, said he is concerned that correctional officers weren’t included in the amendment.

“If you look at everyone that they’re putting into this act – firefighters, EMTs, police officers, peace officers and sheriffs – well, we’re all of that in one job,” he said. “We’re the first responders to everything that happens inside those penitentiaries.”

Grabowsky spent 33 years working in correctional institutions and said there is no reason correctional officers should be excluded.

“We walk the meanest streets in Canada because everybody is a bad guy,” he said. “We play certainly a big part in public safety and we see a lot and deal with a lot of bad things.”

He said the Union of Canadian Correctional Officers is looking at the next step to advocate for correctional officers and have them included in the amendment.

Social workers are another vulnerable occupation that would like to be included in the Workers Compensation Amendment Act.

“[Social workers are] going into situations that are quite volatile and violence is possible, so I think it makes sense to put our profession on the bill,” said Lori Sigurdson, representative with the Alberta College of Social Workers (ACSW).

She said many social workers have a large caseload, which puts an increased demand on already scarce resources.

The government’s move towards zero-based budgeting threatens this demand further, she said, adding it will put further stress on social workers.

Sigurdson said the ACSW has discussed the amendment and is working with several other groups to obtain better access to PTSD coverage.

Smith said individuals who are not listed in the bill and are experiencing a similar situation to first responders could potentially make a claim that the legislation is discriminatory.

Debate on Bill 1 will continue when the legislative session is resumed in the fall.



Any one with half a brain could have predicted that this would happen. Only a moron would introduce a bill providing discriminatory presumptions to a specific group of workers which includes only first responders and excludes all other workers. This moronic legislation began when an MLA by the name of Richard Magnus introduced a private members bill giving presumptive status to firefighters for certain cancers, followed by presumptive status for firefighters specific to heart attacks while excluding all other workers who had much higher risks than firefighters for cancers and heart attacks. The problem with exclusion by designating a specific occupational group to receive special benefits while excluding all other occupational groups results in discrimination. To combat the insanity of exclusion, a private members bill has to provide presumption for all workers which was the original intent of the Meredith Principles and placing the entire burden of proof to the contrary on the “Board” who has the financial means of acquiring the knowledge specific to causation. Placing the burden of proof on a worker is a breach of the agreement between workers and employers that formed the basis of the Meredith Principles when they went from a civil system to an administrative system that was supposed to place the entire burden of proof onto the “Board” . Instead of having claims adjudicated under administrative law, claims are adjudicated under civil law where the worker becomes a plaintiff rather than a victim with the “Board” being the defendant and the employer being represented by the “Board” who pays bonuses to Case Managers to have claims denied based on the deliberate false medical opinions of the “Boards” network of dishonest medical advisors who the Alberta Government protect by legislation specifically Section 34(4) of the Alberta WCA where a doctor’s opinion even if they admit they lied, cannot be sued unless it can be proven that the medical opinion was based on malice rather than financial gain.

Introduction of Section 34(4) of the Alberta WCA does indicate that the Alberta Government is complicit in protecting WCB’s network of doctors who are not held accountable or responsible for providing knowingly false medical opinions for financial gain.


Gerry Miller