I always Like Talk About the Charter and Human Rights.
How can a Canadian citizen permanently disabled and unemployable at his previous occupations(s) ever get treated fairly, when both the Canada Health Act and our WCB Acts remove our basic rights?
The answer is no justice can be gotten by the injured forced, yes forced, into needless appeals. What government may not realize is that the WCB's, all of them, use these loopholes in the law to deny claims with immunity from having to pay legislated benefits, including providing medical care, wage loss, follow up treatments, retraining that would enable a person to reach their potential and restore them to the workforce, or any other measure that would be a benefit to the individual and society as a whole.
So whose fault is it that this discrimination in society is permitted by government?
Why government itself of course. They have created this discrimination by such clear and obvious legislation completely against the wishes of the peoples of Canada. The laws of Canada must be adhered too. This is non negotiable.
Any discrimination against an individual because of race, colour, religion, MENTAL OR PHYSICAL DISABILITY, is not permitted. No way can a discrimination be justified.
Yet we have our Federal government, by excluding "injured workers" from the protections and guarantees of that Act, have created the most obvious of discriminations. Totally illegal under Canadian law.
Combine that discrimination with the fact every WCB Act bars legal action against the boards, The employees, the doctors, or any one else, then that means your right to equal benefit and equal protection of the law is lost. Again totally illegal under Canadian law. Any fraud may now be committed against you by WCB's with legal immunity.
I do not believe any other country has such discriminatory laws written in its books.
The result is we are seeing an increasing number of suicides in each Province, even a murder in Newfoundland and Labrador where a brain injured man thought WCB spies were trying to cut off his benefits. Sixteen years after his injury? This was particularly nasty as the daughter stated on the local news she could get no help for him anywhere.
How could she? He had no medical rights. WCB in British Columbia was responsible under law to provide therapy, counselling, and to provide wage loss. Instead Mr. Lockyer could get no help, was confused, tortured with fear of losing financial benefits. As most injured workers are finding out, if you get hurt in one Province and can't get treatment for injuries there and move to another Province you will not get treatment there either.
To make matters worse for the client, he/she is disabled, unable to work at former employment, and forced onto welfare.
There can be only one solution and no other bandaid remedy to policy and procedure will work. The clause in the Canada Health Act that is the discriminatory clause and states "injured workers" are excluded from the Act must be removed. Immediately.
The clause in the Provincial WCB Acts that further discriminates by removing legal rights and protections must also be removed. Immediately.
The consequences of not doing so will amount to charges of abuse, breach of trust, culpable homicide, murder, negligent homicide, fraud, being levied against both the Federal and Provincial governments by the people if these pieces of legislation are not adjusted to conform to the basic principles of justice.
By removing the medical and legal rights from a citizen of this country you have left them completely impotent to defend themselves against any wrongdoing whether perceived or real.
That is why we have the high suicide rate in WCB claims. Not because of pain and poverty, but because it is forced onto them by a corrupt government knowingly, without remorse, without any sense of conscience or responsibility, and that is fundamentally wrong.
Our elected representatives are elected to look out for our interests and to protect our property and health. This WCB scheme they have created does exactly the opposite.
For a government to knowingly or unknowingly destroy those rights is corrupt, vile, illegal, immoral, and cannot be tolerated in a fair, open, and just society.
It will not be tolerated.
Best Regards
Fred Palmer
Founder - V.O.C.A.L.
(Victims Of Compensation Abuse League)
P.S. The author below does indeed deserve a pat on the back. I would go so far as to say the Order of Canada for his diligence, determination, and hard work on behalf of all Canadian citizens. It has born good fruit. The answer to why injured workers do not proceed with complaints is because we are paralysed in a system designed to confuse and intimidate rather than nurture back to wellness. Many are brain injured and suffer multiple affects including depression, confusion, are in chronic pain so severe it limits their activities greatly and destroys the ability to concentrate or focus, are denied retraining for suitable jobs or even any jobs, and many more atrocities because the basic fundamental rights you thought you enjoyed as a Canadian citizen are removed just by the fact you became an "injured worker".
In the upcoming election I would like to ask the population of Canada, "Is this what you want? To have your rights removed just because you got hurt on the job? Even if it was company negligence that caused you to become disabled? And be forced to endure welfare for the rest of your life because of this fraud against you? Even to the point of suffering in treatable pain with no relief because your government run insurance scam called WCB has not approved needed treatment? Even to the point of worsening or developing Post Traumatic Stress Disorder?"
That is the reality for hundreds of thousands of innocent Canadian citizens right now. Today.
Ask your upcoming candidates why "injured workers" are excluded from the Canada Health Act.
Ask them why all your legal rights are taken from you by the Provincial WCB Acts that leaves you vulnerable to all manner of deceit and fraud.
Ask yourself if you want to be covered by a program that automatically removes your rights when injured.
Then ask yourself what kind of a country would allow these abuses to continue.
Sent: Tuesday, October 07, 2008 1:51 AM
Subject: Contravention of Human rights Legislation/Section 15.1 of the Charter
I am rather appalled by the number of claimants who do not proceed with human rights complaints or contravention's of Section 15.1 of the Charter. Every claim and I mean every claim filed has the potential to be found either in contravention of human rights legislation, contravention of Section 15.1 of the Charter or both. The claims process is a cesspool of contravention's of human rights legislation as well as contravention's of Section 15.1 of the Charter and most people fail to recognize these contravention's. It would be extremely rare that a claim would not be found to be in contravention of human rights legislation or Section 15.1 of the Charter. The reason for this is simply because WCB or the Appeals Commission do not rely on precedence and all their decisions are inconsistent which increases the risk that claimants will be treated differently in identical circumstances.
All claimants filing a claim are in a protected category, which is being disabled. WCB has a mandate to provide services to disabled workers. In order to challenge a claim a claimant has two of the three elements in filing a human rights complaint. The only thing left is to find an individual or group of individuals that have been treated differently than the claimant, which is referred to as a comparative individual or group of individuals. Every decision therefore has to take into consideration any claim whereby another individual or groups of individuals received a service that the claimant was denied. This could be anything from denying vocational rehabilitation, medical services, impairment ratings, loss of earnings, COLA increases, denial of claims with the identical etiology as another claim that was accepted. The list could go on indefinitely and there is no justification to treat claimants differently when providing services. The same criteria can be used in bringing forth Charter arguments as one is a mirror image of the other.
The Alberta WCB uses two different methods of rating an impairment by using two different impairment guides, one being the AlbertaGuides (old meat charts)and the other is the AMA Guides. Using two different guides in evaluating impairment results in treating claimants differently where if a claimant is evaluated using the Alberta Guides they may not be given an impairment whereas using the AMA Guides may result in an impairment. The Alberta Guides do not factor in pain or chronic pain which is subjective. The AMA Guides factor in pain and chronic pain even though it is subjective. WCB either has to use the Alberta Guides or the AMA Guides in assessing impairment, they cannot use both, otherwise claimants are treated differently due to the differences in the two "Guides". The AMA Guides 3rd, 4th and 5th Editions also present two different methods of determining impairment by using the maximum functional capacity of the individual as a reference and then using fixed baseline averages as a reference for other individuals which has been scientifically proven to produce false impairment ratings. This is illegal as either all individuals must be assessed impairment ratings based on the individuals maximum functional capacity or all individuals must be assessed impairment ratings based on fixed baseline averages. Therefore any use of the AMA Guides 3rd, 4th and 5th Editions relative to this method of rating an impairment are in contravention of human rights legislation as well as Section 15.1 of the Charter. The Alberta Guides are in contravention of human rights legislation as well as Section 15.1 of the Charter as they do not provide any impairment ratings based on pain or chronic pain.
If people remember, I filed a human rights complaint several years ago based on treating individuals differently when using grip strengths in determining impairment. Despite all the evidence that was presented at the Human Rights Tribunal on a prima facie basis the Tribunal Chair determined that individuals were not treated differently. (Duh) He determined that if the AMA Guides were used all over the world, then using two different methods of assessing impairment for loss of grip strength must be okay. His decision can be found at the following link http://www.albertahumanrights.ab.ca/403.asp Mr. Tolley's decision was presented to Dr. Chris Brigham along with my adamant and compelling argument that using two different methods of determining impairment for loss of grip strength was a contravention of the American Constitution, Alberta human rights legislation as well as a contravention of the Charter. He agreed and promised that before the 6th Edition was published that they would delete any mention of grip strengths in assessing impairment. Today I was contacted by the Foothills Hospital Library and was told that they finally had the AMA Guides 6th Edition. I went to the library, perused the "Guide" while paying special attention to the chapter relative to upper extremity impairments . As promised by Dr. Brigham, grip strengths are no longer used for assessing any impairments and have been deleted from the "Guide".
People might ask if I gave up after Mr. Tolley's decision and why Human Rights or myself did not request a Judicial Review on what was a pathetically incorrect decision. There was no need for Human Rights or myself to request a Judicial Review as WCB was forced during cross examinations to admit that they should not have used grip strengths in the first place. This is all part of the transcripts. In the 3rd, 4th and 5th Editions, grip strengths could only be used in the event of a laceration into the forearm muscle mass that results in a painless loss of grip strength. Because of my involvement criticizing and condemning the AMA for using grip strengths at all, they no longer are used. I feel vindicated by all of this as I was portrayed as a trouble maker by the Alberta WCB, the Appeals Commission as well as the Alberta College of Physicians and Surgeons.
Rather than admit defeat and not wanting to pay compensation going back to 1989, WCB then hired a hired gun by the name of Dr. White who then changed from the AMA Guides which according to the AMA provides up to a 5 % PCI rating for chronic pain due to a residual carpal tunnel syndrome that was diagnosed by the AMA from my clients medical records over to the old meat charts (Alberta Guides) that are still used by some of the Provinces, including Alberta. The problem with the meat charts is they do not provide any PCI ratings for chronic pain due to a discernible medical condition because WCB state that they must use objective findings and they cannot provide any impairment ratings for subjective medical conditions. This was the same argument that went before the Supreme Court (Martin/ Laseur v. Nova Scotia WCB) and the Supreme Court determined that subjective medical conditions (Chronic pain) must be treated on an equal basis as objective medical conditions. In essence any provincial WCB still using the old meat charts that do not provide any PCI ratings for non discernible chronic pain are not in compliance with the Supreme court's decision. WCB then suggested that they have a chronic pain policy. The problem with this argument is their chronic pain policy only applies to loss of earnings measured as the ability to work which has nothing to do with an impairment which measures a persons ability to perform basic activities of daily living. All WCB';s in Canada other than Quebec and NT/NU have what is called a dual awards system whereby benefits are paid based on an impairment, loss of earnings or both. I suspect that other than Nova Scotia, none of these provinces with a dual award system provide a separate award for chronic pain due to an impairment. Providing benefits for loss of earnings only provides benefits for one of the dual awards component without any benefits for an impairment due to chronic pain which was the reason why the Nova Scotia Government were forced to provide a PCI rating for chronic pain. (3% and 6% ) PCI rating for chronic pain without objective findings) and referred to as Chronic Pain Regulations. The Alberta Government for some odd reason has not followed suit although our elected MLA's wouldn't have a clue especially if WCB told the Minister in charge of the WCB that they are in compliance. The complaint I filed with Human rights should determine whether or not they are in compliance.
The AMA Guides (6th Edition) provides PCI ratings for chronic pain associated with discernible medical conditions without objective evidence. If memory serves me correct they assess up to 13% PCI rating. They also provide up to 3% PCI ratings for non discernible chronic pain without any objective evidence. Doctors are finally acknowledging that chronic pain is real and even if there are no objective findings, that pain does exist even if medical testing cannot determine why. Any lay person could have told them that. A person can go through every imaginable test and when there is no objective medical evidence, the pain still persists. Rather than find the source of the pain, patients are prescribed pain killers which result in serious complications such as were found with Vioxx and internal bleeding from other pain killers such as over the counter medications like acetaminophen or acetaminophen and codeine. If pain is not real why then are doctors prescribing pain killers to alleviate the pain?
At present I have another human rights complaint filed against WCB for their use of the Alberta Guides which do not recognize chronic pain whether the pain is discernible or non discernible. They did not file a statement of defense, nor would they agree to any conciliation, more so because there is no defense. The Appeals Commission have refused to admit that they made a mistake, will not reconsider their original decision which was based illegally on grip strengths being used in determining impairment even after WCB admitted under oath that they had made a mistake which has led to a complaint to the Provincial Ombudsman who met with the Appeals Commission to try to convince them to send the claim back to WCB. They refused. Human Rights have investigated the decision of the Appeals Commission based on a complaint I filed with them and determined that the Appeals Commission were guilty of an abuse of process but determined that it was outside of their jurisdiction and it was Human Rights who suggested to file a complaint with the Office of the Ombudsman which I have done.
I am now working on putting together a Judicial Review which has now become much easier as the Supreme court in March of 2008 have changed the criteria of the standard of review (Dunsmuir v. New Brunswick) where the courts are starting to realize that Administrative Tribunals should not be given any deference, simply because they are not experts in law and certainly not experts in determining fact. The new standard of review for the Courts is now simply correctness and reasonableness. In all decisions made by the Appeals Commission, their decisions are made on medical opinions, not medical facts and they are in no position to know when a doctor's opinion is simply an opinion or whether the opinion is based on medical certainty or medical science. In a real court of law, this is not a problem as in a real court of law, doctors are subpoenaed and cross examined by knowledgeable lawyers and made to look like fools under cross examinations. A claimant has no right under administrative law relative to WCB to subpoena doctors during an in person hearing unless the Appeals Commission believe it is pertinent to the case. If they are not medical experts which we know they are not, how would they know whether a doctor should be subpoenaed? If they were medical experts, they would have known that you cannot use grip strengths to determine an impairment for pain caused by a residual carpal tunnel syndrome.
As stated previously, I am at present preparing an originating notice which is the preliminary step leading to a Judicial Review which is based on the new standard of review. This should not be overly difficult as it has been acknowledged by WCB that grip strengths were not the correct method of rating an impairment for chronic pain due to a residual carpal tunnel syndrome. Being that the Appeals Commission's decision was based on the incorrect method of assessing an impairment, it follows that the courts would have to determine that their decision does not meet the correctness standard. It then follows that it would be unreasonable for the Appeals Commission to deny the claim when their decision was factually incorrect and acknowledged as being so by WCB.
I think people will understand why the Appeals Commission, WCB, Alberta College of Physicians and Surgeons as well as WCB's medical doctors despise me. I know I was a pain in the ass to the American Medical Association especially when a simple lay person like myself managed to force them to delete any reference to grip strengths. Oddly enough, literally thousands of doctors throughout the world were using grip strengths in cheating injured workers by using these tables going back to 1973 and none of them said anything. For an old red necked senior citizen from Alberta to take on one of the most powerful organizations in the world and force them to delete the tables and charts in the AMA Guides relative to grip strength impairment, I think I deserve a pat on the back, don't you think?
The Workers Compensation systems and the Provincial Governments throughout Canada are in reality nothing more than bullies who use their financial ability to force injured and disabled workers into submission. They take the pooled money provided by employers and use this money to hire their own doctors, lawyers case managers, decision review bodies, Appeals Commissioners to discourage workers from hiring lawyers, doctors to fight the system. If a claimant submits a motion to attend in subpoenaing a doctor for cross examination, they are told they must pay these people out of their own pockets while WCB and the Appeals Commission use the employers moneys to fight the little guy. When filing for a Judicial Review, the claimant in most cases has to hire a lawyer, pay money up front to pay for the ("Originating Notice") while the Appeals Commission use their lawyer who is paid for by WCB through the accident fund to fight the claimant. This is called justice. I call it "financial bullying"
Gerry Miller
How can a Canadian citizen permanently disabled and unemployable at his previous occupations(s) ever get treated fairly, when both the Canada Health Act and our WCB Acts remove our basic rights?
The answer is no justice can be gotten by the injured forced, yes forced, into needless appeals. What government may not realize is that the WCB's, all of them, use these loopholes in the law to deny claims with immunity from having to pay legislated benefits, including providing medical care, wage loss, follow up treatments, retraining that would enable a person to reach their potential and restore them to the workforce, or any other measure that would be a benefit to the individual and society as a whole.
So whose fault is it that this discrimination in society is permitted by government?
Why government itself of course. They have created this discrimination by such clear and obvious legislation completely against the wishes of the peoples of Canada. The laws of Canada must be adhered too. This is non negotiable.
Any discrimination against an individual because of race, colour, religion, MENTAL OR PHYSICAL DISABILITY, is not permitted. No way can a discrimination be justified.
Yet we have our Federal government, by excluding "injured workers" from the protections and guarantees of that Act, have created the most obvious of discriminations. Totally illegal under Canadian law.
Combine that discrimination with the fact every WCB Act bars legal action against the boards, The employees, the doctors, or any one else, then that means your right to equal benefit and equal protection of the law is lost. Again totally illegal under Canadian law. Any fraud may now be committed against you by WCB's with legal immunity.
I do not believe any other country has such discriminatory laws written in its books.
The result is we are seeing an increasing number of suicides in each Province, even a murder in Newfoundland and Labrador where a brain injured man thought WCB spies were trying to cut off his benefits. Sixteen years after his injury? This was particularly nasty as the daughter stated on the local news she could get no help for him anywhere.
How could she? He had no medical rights. WCB in British Columbia was responsible under law to provide therapy, counselling, and to provide wage loss. Instead Mr. Lockyer could get no help, was confused, tortured with fear of losing financial benefits. As most injured workers are finding out, if you get hurt in one Province and can't get treatment for injuries there and move to another Province you will not get treatment there either.
To make matters worse for the client, he/she is disabled, unable to work at former employment, and forced onto welfare.
There can be only one solution and no other bandaid remedy to policy and procedure will work. The clause in the Canada Health Act that is the discriminatory clause and states "injured workers" are excluded from the Act must be removed. Immediately.
The clause in the Provincial WCB Acts that further discriminates by removing legal rights and protections must also be removed. Immediately.
The consequences of not doing so will amount to charges of abuse, breach of trust, culpable homicide, murder, negligent homicide, fraud, being levied against both the Federal and Provincial governments by the people if these pieces of legislation are not adjusted to conform to the basic principles of justice.
By removing the medical and legal rights from a citizen of this country you have left them completely impotent to defend themselves against any wrongdoing whether perceived or real.
That is why we have the high suicide rate in WCB claims. Not because of pain and poverty, but because it is forced onto them by a corrupt government knowingly, without remorse, without any sense of conscience or responsibility, and that is fundamentally wrong.
Our elected representatives are elected to look out for our interests and to protect our property and health. This WCB scheme they have created does exactly the opposite.
For a government to knowingly or unknowingly destroy those rights is corrupt, vile, illegal, immoral, and cannot be tolerated in a fair, open, and just society.
It will not be tolerated.
Best Regards
Fred Palmer
Founder - V.O.C.A.L.
(Victims Of Compensation Abuse League)
P.S. The author below does indeed deserve a pat on the back. I would go so far as to say the Order of Canada for his diligence, determination, and hard work on behalf of all Canadian citizens. It has born good fruit. The answer to why injured workers do not proceed with complaints is because we are paralysed in a system designed to confuse and intimidate rather than nurture back to wellness. Many are brain injured and suffer multiple affects including depression, confusion, are in chronic pain so severe it limits their activities greatly and destroys the ability to concentrate or focus, are denied retraining for suitable jobs or even any jobs, and many more atrocities because the basic fundamental rights you thought you enjoyed as a Canadian citizen are removed just by the fact you became an "injured worker".
In the upcoming election I would like to ask the population of Canada, "Is this what you want? To have your rights removed just because you got hurt on the job? Even if it was company negligence that caused you to become disabled? And be forced to endure welfare for the rest of your life because of this fraud against you? Even to the point of suffering in treatable pain with no relief because your government run insurance scam called WCB has not approved needed treatment? Even to the point of worsening or developing Post Traumatic Stress Disorder?"
That is the reality for hundreds of thousands of innocent Canadian citizens right now. Today.
Ask your upcoming candidates why "injured workers" are excluded from the Canada Health Act.
Ask them why all your legal rights are taken from you by the Provincial WCB Acts that leaves you vulnerable to all manner of deceit and fraud.
Ask yourself if you want to be covered by a program that automatically removes your rights when injured.
Then ask yourself what kind of a country would allow these abuses to continue.
Sent: Tuesday, October 07, 2008 1:51 AM
Subject: Contravention of Human rights Legislation/Section 15.1 of the Charter
I am rather appalled by the number of claimants who do not proceed with human rights complaints or contravention's of Section 15.1 of the Charter. Every claim and I mean every claim filed has the potential to be found either in contravention of human rights legislation, contravention of Section 15.1 of the Charter or both. The claims process is a cesspool of contravention's of human rights legislation as well as contravention's of Section 15.1 of the Charter and most people fail to recognize these contravention's. It would be extremely rare that a claim would not be found to be in contravention of human rights legislation or Section 15.1 of the Charter. The reason for this is simply because WCB or the Appeals Commission do not rely on precedence and all their decisions are inconsistent which increases the risk that claimants will be treated differently in identical circumstances.
All claimants filing a claim are in a protected category, which is being disabled. WCB has a mandate to provide services to disabled workers. In order to challenge a claim a claimant has two of the three elements in filing a human rights complaint. The only thing left is to find an individual or group of individuals that have been treated differently than the claimant, which is referred to as a comparative individual or group of individuals. Every decision therefore has to take into consideration any claim whereby another individual or groups of individuals received a service that the claimant was denied. This could be anything from denying vocational rehabilitation, medical services, impairment ratings, loss of earnings, COLA increases, denial of claims with the identical etiology as another claim that was accepted. The list could go on indefinitely and there is no justification to treat claimants differently when providing services. The same criteria can be used in bringing forth Charter arguments as one is a mirror image of the other.
The Alberta WCB uses two different methods of rating an impairment by using two different impairment guides, one being the AlbertaGuides (old meat charts)and the other is the AMA Guides. Using two different guides in evaluating impairment results in treating claimants differently where if a claimant is evaluated using the Alberta Guides they may not be given an impairment whereas using the AMA Guides may result in an impairment. The Alberta Guides do not factor in pain or chronic pain which is subjective. The AMA Guides factor in pain and chronic pain even though it is subjective. WCB either has to use the Alberta Guides or the AMA Guides in assessing impairment, they cannot use both, otherwise claimants are treated differently due to the differences in the two "Guides". The AMA Guides 3rd, 4th and 5th Editions also present two different methods of determining impairment by using the maximum functional capacity of the individual as a reference and then using fixed baseline averages as a reference for other individuals which has been scientifically proven to produce false impairment ratings. This is illegal as either all individuals must be assessed impairment ratings based on the individuals maximum functional capacity or all individuals must be assessed impairment ratings based on fixed baseline averages. Therefore any use of the AMA Guides 3rd, 4th and 5th Editions relative to this method of rating an impairment are in contravention of human rights legislation as well as Section 15.1 of the Charter. The Alberta Guides are in contravention of human rights legislation as well as Section 15.1 of the Charter as they do not provide any impairment ratings based on pain or chronic pain.
If people remember, I filed a human rights complaint several years ago based on treating individuals differently when using grip strengths in determining impairment. Despite all the evidence that was presented at the Human Rights Tribunal on a prima facie basis the Tribunal Chair determined that individuals were not treated differently. (Duh) He determined that if the AMA Guides were used all over the world, then using two different methods of assessing impairment for loss of grip strength must be okay. His decision can be found at the following link http://www.albertahumanrights.ab.ca/403.asp Mr. Tolley's decision was presented to Dr. Chris Brigham along with my adamant and compelling argument that using two different methods of determining impairment for loss of grip strength was a contravention of the American Constitution, Alberta human rights legislation as well as a contravention of the Charter. He agreed and promised that before the 6th Edition was published that they would delete any mention of grip strengths in assessing impairment. Today I was contacted by the Foothills Hospital Library and was told that they finally had the AMA Guides 6th Edition. I went to the library, perused the "Guide" while paying special attention to the chapter relative to upper extremity impairments . As promised by Dr. Brigham, grip strengths are no longer used for assessing any impairments and have been deleted from the "Guide".
People might ask if I gave up after Mr. Tolley's decision and why Human Rights or myself did not request a Judicial Review on what was a pathetically incorrect decision. There was no need for Human Rights or myself to request a Judicial Review as WCB was forced during cross examinations to admit that they should not have used grip strengths in the first place. This is all part of the transcripts. In the 3rd, 4th and 5th Editions, grip strengths could only be used in the event of a laceration into the forearm muscle mass that results in a painless loss of grip strength. Because of my involvement criticizing and condemning the AMA for using grip strengths at all, they no longer are used. I feel vindicated by all of this as I was portrayed as a trouble maker by the Alberta WCB, the Appeals Commission as well as the Alberta College of Physicians and Surgeons.
Rather than admit defeat and not wanting to pay compensation going back to 1989, WCB then hired a hired gun by the name of Dr. White who then changed from the AMA Guides which according to the AMA provides up to a 5 % PCI rating for chronic pain due to a residual carpal tunnel syndrome that was diagnosed by the AMA from my clients medical records over to the old meat charts (Alberta Guides) that are still used by some of the Provinces, including Alberta. The problem with the meat charts is they do not provide any PCI ratings for chronic pain due to a discernible medical condition because WCB state that they must use objective findings and they cannot provide any impairment ratings for subjective medical conditions. This was the same argument that went before the Supreme Court (Martin/ Laseur v. Nova Scotia WCB) and the Supreme Court determined that subjective medical conditions (Chronic pain) must be treated on an equal basis as objective medical conditions. In essence any provincial WCB still using the old meat charts that do not provide any PCI ratings for non discernible chronic pain are not in compliance with the Supreme court's decision. WCB then suggested that they have a chronic pain policy. The problem with this argument is their chronic pain policy only applies to loss of earnings measured as the ability to work which has nothing to do with an impairment which measures a persons ability to perform basic activities of daily living. All WCB';s in Canada other than Quebec and NT/NU have what is called a dual awards system whereby benefits are paid based on an impairment, loss of earnings or both. I suspect that other than Nova Scotia, none of these provinces with a dual award system provide a separate award for chronic pain due to an impairment. Providing benefits for loss of earnings only provides benefits for one of the dual awards component without any benefits for an impairment due to chronic pain which was the reason why the Nova Scotia Government were forced to provide a PCI rating for chronic pain. (3% and 6% ) PCI rating for chronic pain without objective findings) and referred to as Chronic Pain Regulations. The Alberta Government for some odd reason has not followed suit although our elected MLA's wouldn't have a clue especially if WCB told the Minister in charge of the WCB that they are in compliance. The complaint I filed with Human rights should determine whether or not they are in compliance.
The AMA Guides (6th Edition) provides PCI ratings for chronic pain associated with discernible medical conditions without objective evidence. If memory serves me correct they assess up to 13% PCI rating. They also provide up to 3% PCI ratings for non discernible chronic pain without any objective evidence. Doctors are finally acknowledging that chronic pain is real and even if there are no objective findings, that pain does exist even if medical testing cannot determine why. Any lay person could have told them that. A person can go through every imaginable test and when there is no objective medical evidence, the pain still persists. Rather than find the source of the pain, patients are prescribed pain killers which result in serious complications such as were found with Vioxx and internal bleeding from other pain killers such as over the counter medications like acetaminophen or acetaminophen and codeine. If pain is not real why then are doctors prescribing pain killers to alleviate the pain?
At present I have another human rights complaint filed against WCB for their use of the Alberta Guides which do not recognize chronic pain whether the pain is discernible or non discernible. They did not file a statement of defense, nor would they agree to any conciliation, more so because there is no defense. The Appeals Commission have refused to admit that they made a mistake, will not reconsider their original decision which was based illegally on grip strengths being used in determining impairment even after WCB admitted under oath that they had made a mistake which has led to a complaint to the Provincial Ombudsman who met with the Appeals Commission to try to convince them to send the claim back to WCB. They refused. Human Rights have investigated the decision of the Appeals Commission based on a complaint I filed with them and determined that the Appeals Commission were guilty of an abuse of process but determined that it was outside of their jurisdiction and it was Human Rights who suggested to file a complaint with the Office of the Ombudsman which I have done.
I am now working on putting together a Judicial Review which has now become much easier as the Supreme court in March of 2008 have changed the criteria of the standard of review (Dunsmuir v. New Brunswick) where the courts are starting to realize that Administrative Tribunals should not be given any deference, simply because they are not experts in law and certainly not experts in determining fact. The new standard of review for the Courts is now simply correctness and reasonableness. In all decisions made by the Appeals Commission, their decisions are made on medical opinions, not medical facts and they are in no position to know when a doctor's opinion is simply an opinion or whether the opinion is based on medical certainty or medical science. In a real court of law, this is not a problem as in a real court of law, doctors are subpoenaed and cross examined by knowledgeable lawyers and made to look like fools under cross examinations. A claimant has no right under administrative law relative to WCB to subpoena doctors during an in person hearing unless the Appeals Commission believe it is pertinent to the case. If they are not medical experts which we know they are not, how would they know whether a doctor should be subpoenaed? If they were medical experts, they would have known that you cannot use grip strengths to determine an impairment for pain caused by a residual carpal tunnel syndrome.
As stated previously, I am at present preparing an originating notice which is the preliminary step leading to a Judicial Review which is based on the new standard of review. This should not be overly difficult as it has been acknowledged by WCB that grip strengths were not the correct method of rating an impairment for chronic pain due to a residual carpal tunnel syndrome. Being that the Appeals Commission's decision was based on the incorrect method of assessing an impairment, it follows that the courts would have to determine that their decision does not meet the correctness standard. It then follows that it would be unreasonable for the Appeals Commission to deny the claim when their decision was factually incorrect and acknowledged as being so by WCB.
I think people will understand why the Appeals Commission, WCB, Alberta College of Physicians and Surgeons as well as WCB's medical doctors despise me. I know I was a pain in the ass to the American Medical Association especially when a simple lay person like myself managed to force them to delete any reference to grip strengths. Oddly enough, literally thousands of doctors throughout the world were using grip strengths in cheating injured workers by using these tables going back to 1973 and none of them said anything. For an old red necked senior citizen from Alberta to take on one of the most powerful organizations in the world and force them to delete the tables and charts in the AMA Guides relative to grip strength impairment, I think I deserve a pat on the back, don't you think?
The Workers Compensation systems and the Provincial Governments throughout Canada are in reality nothing more than bullies who use their financial ability to force injured and disabled workers into submission. They take the pooled money provided by employers and use this money to hire their own doctors, lawyers case managers, decision review bodies, Appeals Commissioners to discourage workers from hiring lawyers, doctors to fight the system. If a claimant submits a motion to attend in subpoenaing a doctor for cross examination, they are told they must pay these people out of their own pockets while WCB and the Appeals Commission use the employers moneys to fight the little guy. When filing for a Judicial Review, the claimant in most cases has to hire a lawyer, pay money up front to pay for the ("Originating Notice") while the Appeals Commission use their lawyer who is paid for by WCB through the accident fund to fight the claimant. This is called justice. I call it "financial bullying"
Gerry Miller