"These onerous, demanding, and complicated provisions in
combination allow the WCB to completely control the payment outcome to any
claimant. They allow the WCB to dictate the actions of claimants in a way that
would have made any Stalinist state operation
proud, and they allow for no recourse." Mr. Backs
Alberta Hansard, November 23
"In common law, persons who excercise the legal powers of
the Crown (public officers or public officials) are subject to a tort (civil
wrong) action if they abuse their powers." From "Misfeasance in Public Office" by
Robert C. Worthington. (Summit magazine Nov/Dec 2004)
Stories of possible misfeasance and abuse of power are being
submitted to the CIWS on a regular basis by injured workers across Canada.
Because of this, the CIWS believes that misfeasance is a common denominator in
many injured workers cases and is being regularly perpetrated by workers
compensation board officials across Canada.
The tort is
illustrated in cases such as Odhavji Estate v. Woodhouse, 2003 SCC 69,  3
S.C.R. 263, Roncarelli v, Duplessis  S.C.R. 121,
Powder Mountain Resorts Ltd. v. British Columbia (2001), 94 B.C.L.R.
(3d) 14, 2001 BCCA 619; and Alberta (Minister of Public Works, Supply and
Services) v. Nilsson(2002), 220 D.L.R. (4th) 474, 2002 ABCA 283; and
From the Supreme Court of Canada
discussion (in Odhavji Estate v. Woodhouse, 2003 SCC 69,  3
S.C.R. 263): ". . . that misfeasance in a public
office is a recognized tort in Canada."
". . . that there is a broad range of misconduct that can
found an action for misfeasance in a public office."
(For example, in Northern Territory of Australia
v. Mengel (1995), 129 A.L.R. 1 (H.C.), Brennan J. referenced
Henly v. Mayor of Lyme [(1828), that . . . "Any act or omission done or made by a public official in
the purported performance of the functions of the office can found an action
for misfeasance in public office".
And in Garrett
v. Attorney-General,  2 N.Z.L.R. 332, the Court of Appeal for New
Zealand, Blanchard J. concluded . . . that the tort
can be committed by an official who acts or omits to act in breach of
duty knowing about the breach and also knowing harm or loss is thereby likely
to be occasioned to the plaintiff.
And the House
of Lords reached the same conclusion in Three Rivers District Council v.
Bank of England (No. 3),  2 W.L.R. 1220 . . .
that the tort can be constituted by an
omission by a public officer as well as by acts on his
part. and If there is a
legal duty to act and the decision not to act amounts to an unlawful breach of
that legal duty, the omission can amount to misfeasance [in a public
office]. (see also R. v. Dytham,  Q.B. 722
" . . . In Australia, New Zealand
and the United Kingdom, it is equally clear that the tort of misfeasance is not
limited to the unlawful exercise of a statutory or prerogative power actually
". . . in the United
Kingdom, a failure to act can constitute misfeasance in a public office, but
only if the failure to act constitutes a deliberate breach of official
"In Garrett, supra, Blanchard J. stated,
. . . that [t]he purpose behind the imposition
of this form of tortious liability is to prevent the deliberate injuring of
members of the public by deliberate disregard of official
duty. "In Three Rivers, supra, Lord Steyn
stated, . . . that [t]he rationale of the tort
is that in a legal system based on the rule of law executive or administrative
power may be exercised only for the public good and not for
ulterior and improper purposes.
that the tort is
directed ". . . at a public officer who could have
discharged his or her public obligations, yet wilfully chose to do otherwise.
VIOLATING THE INTENT OF THE ENABLING LEGISLATION -
Violating Natural Law - Violating Presumptive Status:
100 years ago, the
"Historic Compromise" guaranteed prompt and adequate injury compensation for
workers in exchange for workers giving up their right to sue companies for
damages. This legislation gave injured workers the 'benefit of the doubt',
meaning, that, unless WCB could prove otherwise, the injury was PRESUMED to be
a workplace injury.
Injured workers have always had 'presumptive
However, over time, the provincial workers
compensation boards have eroded this 'presumptive' system, into a system of
denial. Now, being injured at work plunges the worker into an adversarial
system of denials and repeated appeals. The WCB makes the worker prove their
case, putting the 'burden of proof' on the injured worker at a time when the
worker is vulnerable and is least likely to have the energy or money to fight a
battle with WCB.
Not only is this inhumane, it is also against the
The fact that several provinces have just legislated 'preumptive
status' for firefighters with cancer shows how ignorant our provincial
politicians have become about the intended function of the workers compensation
system. The fact is that, since the early 1900s, firefighters (and all other
workers) HAVE ALREADY HAD 'presumptive status' under the legislation. (Therefore the firefighters
should never have had to lobby for this redundant
Legislative presumption ALREADY APPLIES to all
claimants (not just firefighters) and it requires WCBs to PROVE (beyond a
balance of probabilities) that the injury, death or occupational disease DID
NOT arise out of, and during the course of, employment.
worker was never required to prove their case.
WITHHOLDING, TAMPERING WITH AND FALSIFYING MEDICAL
Injured workers complain of several issues such as: - WCBs
'losing' files which contain medical evidence - WCBs selectively ignoring
medical evidence from specialists which would advance the worker's claim -
specialists' reports being overrruled by WCB doctors, nurses, and even
non-medical staff - assessments being made on workers by WCB-paid doctors
without even seeing the worker or consulting with the worker's GP. - doctors
who have lost their licenses due to disciplinary reasons doing employee medical
investigations. - physical harm caused by WCB medical examinations -
WCBs withholding video evidence and engaged in inappropriate video
Withholding and tampering with medical evidence is a
Criminal Code violation.
DISCRIMINATION - Denying Compensation For
Since the Supreme Court ruling which confirmed that
chronic pain was, indeed compensable, the whole issue of non-discriminatory
compensation for occupational diseases has come into focus. At issue are
chronic pain, chronic stress, cancer, chemical toxicity and many
Yet workers compensation boards still routinely deny
compensation for these diseases.
Not only is this discrimination (a human rights
violation), it is also a violation of the legislation.
By denying these
claims, workers compensation boards allow corporations to be unaccountable for
the workplace hazards that caused these diseases.
Hazards such as toxic chemicals in the workplace go
uninvestigated if WCBs deny chronic disease claims.
by the International Journal of Disability, Community & Rehabilitation
states that workers compensation boards are putting themselves at risk for
litigation by denying these claims: "The requirement
for provisions under workers' compensation to be equitable for all workplace
injuries alike, undoubtedly leads to an expanded liability for workers'
compensation boards, with an effect that is yet to be realized."http://www.ijdcr.ca/VOL04_01_CAN/articles/wagner.shtml
Canada is signatory to the
United Nations Convention on the Rights of Persons with
Disabilities and therefore has a responsibility to comply with Article 5
which states: "Article 5 - Equality and non-discrimination 1. States
Parties recognize that all persons are equal before and under the law and are
entitled without any discrimination to the equal protection and equal benefit
of the law. 2. States Parties shall prohibit all discrimination on the basis of
disability and guarantee to persons with disabilities equal and effective legal
protection against discrimination on all grounds. 3. In order to promote
equality and eliminate discrimination, States Parties shall take all
appropriate steps to ensure that reasonable accommodation is provided."
In particular, as a UN member, Canada has a further responsibility
to uphold the
for the protection of persons with mental illness and the improvement of mental
health care which was adopted by the United Nations General Assembly in
1991. It states: "4. There shall be no discrimination on the grounds of
mental illness. "Discrimination" means any distinction, exclusion or preference
that has the effect of nullifying or impairing equal enjoyment of rights. . . .
5. Every person with a mental illness shall have the right to exercise all
civil, political, economic, social and cultural rights as recognized in the
Universal Declaration of Human Rights, the International Covenant on Economic,
Social and Cultural Rights, the International Covenant on Civil and Political
Rights, and in other relevant instruments, such as the Declaration on the
Rights of Disabled Persons and the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment."
Also see extensive discussions on psychological injury
Read the story of Dr. David
Kuntz, British Columbia doctor who alleges that the WCB participated
in: Collusion: ". . . collusion of the Workers Compensation
Board (WCB), British Columbia Medical Association (BCMA), B.C. College of
Physicians and Surgeons, Canadian Medical Protective Association (CMPA),
Medical Services Commission (MSC) and B.C. Attorney General Department, all of
whom joined to create and perpetuate the scientific fraud that state of the art
spinal disc replacement surgery was "experimental" . .
Cover-ups: " The WCB was cheating Napoli* of his
legitimate benefits as he deteriorated neurologically and abused its authority
so as to cover up this known condition by delaying authorization for treatment
while focusing their efforts on psychological testing of Napoli to justify
terminating his legitimate claim for benefits."
Conspiracy: "WCB doctors plotted, planned and directed my suspension
. . ."
(*Napoli v. British Columbia (Workers'
Compensation Board) (1981), 126 D.L.R. (3d) 179 (B.C.C.A.) - The Napoli case,
decided by the B.C. Supreme Court and Court of Appeal in 1981, first gave
Canadian workers the right to see their files so that they could prepare an
effective case for appeal.)
WCBS REPORT FALSE WORKPLACE INJURY STATISTICS:
WCBs report "Lost Time Injury" rates and other statistics for workplace
injuries. These numbers are misleading and can be used in 'creative' ways to
justify certain biases.
These statistics are used: - by WCBs to
justify millions of dollars of rebates to companies while injured workers go
uncompensated. - by Statistics Canada to report workplace injury rates -
by politicians to boast about decreased injury rates (see article -
"Numbers don't lie - or do
Lost Time Injury" rates are only those injuries
ACCEPTED and being paid by WCB.
So as WCBs routinely deny legitimate claims
and cut off payments prematurely (as
injured workers are reporting), these numbers can grossly underestimate the
REAL numbers and types of of injuries that are occurring.
As WCBs deny legitimate injury claims, the workplace
hazards that caused those injuries go uninvestigated.
The result is that Canada cannot be sure of its REAL
workplace safety status!
Without accurate statistics, workplace safety cannot
be realistically addressed.
"It is absolutely dangerous to have a perception put out
there by a minister that safety is moving in the right direction when it is
not," said Martin. "You know the old saying: statistics don't lie, but liars
use statistics." - Ray Martin, NDP MP Quoted in "Numbers don't lie -
or do they?"
If WCBs are not insurance companies, why do they
belong to insurance industry associations?
Canadian wcbs have a MONOPOLY on workplace injury
insurance because of their LEGISLATED STATUS AS ADMINISTRATIVE BOARDS,
yet THEY ARE ABUSING THIS MONOPOLY BY ILLEGALLY
DENYING LEGITIMATE CLAIMS (as private insurance companies do to make
UNLAWFUL USE OF IMPAIRMENT RATINGS AND AMA
WCBs are illegally using 'impairment' ratings and AMA guides and
percentages to set compensation amounts. This is against the legislation which
only allows WCBs to evaluate 'disablity', not 'impairment'
This may seem
like a small technical matter, but it is not. Complete disability to perform a
certain work function can occur whether the worker has a 10% impairment or an
80% impairment. By using 'impairment' percentages', WCBs are decreasing the
amount of compensation given to the worker despite the fact that the worker is
still technically totally disabled from performing the work function.
By doing this, WCBs decrease compensation payments to
injured workers unlawfully.
US Judge Declares Schedule of Payments to Permanently
Disabled Workers is Illegal because it does not take into account loss of
earnings - Boughner vs. Comp USA
these illegal "impairment" ratings are used routinely by Canadian
AMA Guides Not Valid - 2009 Yet
these illegal "impairment" ratings are used routinely by Canadian
State Rejects AMA Guides - May 2008 - ". . . the AMA Guides were rejected
by the New York State Insurance Department as a basis for determining
impairment and/or disability in claims before the New York Workers'
Compensation Board. . . . Hopefully, this will start a trend in other states to
banish these hurtful Guides that have been labeled "hokum" and "not evidence
based" by renowned workers' compensation expert, Dr. John Burton."
Longtime WCB critic, Gerry Millar states, "The
Alberta Guides are worse as they were compiled by a Dr. Bell in 1960 and no one
knows how or why Dr. Bell came up with the impairment ratings which do not even
bother to factor in pain in any of their impairment ratings as the feeling is
that pain is subjective, therefore pain is not factored in."
June 2008 - More States Follow NY and Abandon AMA Guides - "Following New York's rejection of the AMA Guides to the Evaluation of Permanent Impairment for its own workers compensation system, . . . now the states of Utah, Washington and Colorado are not adopting the current version of the AMA Guides. . . . This comes on the heels of workers' compensation expert Dr. John Burton recently labeling the AMA Guides as "hokum" and "not evidence based". Clearly, the tide across the country is shifting away from the AMA Guides as they are exposed for what they really are - an insurance industry tool to lower workers' compensation benefits to injured workers."
Overview of the World Health Organisation
Definitions- The WHO makes an important distinction between
"impairment" and "disability". "Impairment" is a
body/physical/medical description ONLY and cannot be directly related to social
or vocational functioning (or "disability") as
is the WCBs' illegal practice. (From the original WHO International
Classification of Impairments, Disabilities and Handicaps (ICIDH) to the more
recent International Classification of Functioning, Disability and Health
The Journal of the American Medical Association (JAMA)
states: "The (AMA) Guides, currently
undergoing revision, has been the focus of considerable controversy. Criticisms
have focused on 2 areas: internal deficiencies, including the lack of a
comprehensive, valid, reliable, unbiased, and evidence-based system for rating
impairments; and the way in which workers' compensation
systems use the ratings, resulting in inappropriate compensation. We
focus on the internal deficiencies and recommend that the Guides remains a tool
for evaluation of permanent impairment, not
Nachman Brautbar, (the Forensic Toxicologist who was the first treating
physician to study chromium toxicity as part of the Hinkley groundwater
contamination case presented in the movie, "Erin Brockovich")
states: "Impairment ratings were designed
to reflect functional limitations and not disability. The whole person
impairment percentages listed in the Guides estimate the impact of the
impairment on the individual's overall ability to perform activities of daily
living, excluding work . . ."http://www.environmentaldiseases.com/article-workers-compensation-impairment-rating-guide.html
Expert Lawyer, David DePaulo states: "Revelations about how the Guides are authored should cause
the entire workers' compensation community . . . to carefully reconsider the
validity of the Guides, and indeed, the validity of our system of determining
the appropriate amount of indemnity paid to injured workers for their permanent
disabilities. . . . the American Medical Association . . . would not publish
specious, artificial medical information, would it? Perhaps it would. . . .
Cases are brewing at the trial level, prepared to challenge any reliance on the
Guides rating of impairment for pain, and setting the record for appellate
review of this important issue to the workers' compensation
VIOLATING THE POLICE ACT - Violating the "Special
Constable Status" awarded to WCB by the Police Act:
Where WCBs have been
awarded "Special Constable" status under the Police Act, they have set up
'investigation units' to investigate abuse of the system. Yet, according to the
Alberta WCB website, "Ninety-nine per cent of WCBs investigative
activity is directly related to claims adjudication (determining benefit
entitlement) - criminal prosecution investigations make up less than one per
criminal prosecutions are not being pursued in 99% of the cases, what method is
WCB using to determine guilt?
If these 99% of the investigations result
in a decrease in benefit entitlement, then this would be a penalty inflicted on
an injured worker without that worker being given a trial.
In no place
in the Police Act does it allow any police officer or "Special Constable" to
administer fines or penalties without giving the accused the benefit of a
Yet WCB seems to be doing exactly this.
This is contrary to the Rule of Law under which all
Canadian society is based.
Yet provinces are pushing through legislation which
attempts to eliminate the Charter rights of individuals appearing before
administrative boards such as the WCB:
EXAMPLE: ALBERTA BILL 23: (2005)
Bill 23 will deny injured workers the right to demand fair
treatment under the Charter by the Workers Compensation Board and will force
those injured workers to fight a battle before both the Board and the Courts to
get fair treatment. The Supreme Court of Canada has said that administrative
Boards, like the Workers' Compensation Board, should act fairly to protect the
Charter rights of individuals who appear before them. Bill 23 will remove these
rights. The Province of Alberta proposes to eliminate the Charter rights
of individuals appearing before administrative Boards, forcing them to seek
remedy from the Courts instead. This is an unfair denial of the rule of
law." http://www.ciws.ca/ACTLA_backgrounder_2005.pdf (this has
become law - see article "Alberta WCB Appeals Commission 'Goofs Off' on Charter
Responsibilities" BC BILL 33: (2007) Bill 33, in its first reading in
BC, takes away the Human Rights of injured workers to have their rights
interpreted by the WCB. It is an amendment to the Administrative Tribunals Act
which circumvents the responsibility of aministrative tribunals (such as
WorkSafe BC) to apply the Charter and Constitution. It strips injured workers
of their access to fundamental justice and basic human rights. BILL
33 - First Reading
Other ways that provinces are passing
legislation to strip injured workers of their rights to natural law and
fundamental justice: 1.) ALBERTA: BILL 15 (2005) The
purpose of this Bill appears to be to prevent an injured worker from retaining
his or her own legal counsel to represent their best interests in pursuing a
claim for injuries or loss arising from work related accidents. Even in cases
where the WCB is in a conflict of interest, Bill 34 prevents Albertans from
retaining their own lawyer. The Alberta Court of Appeal has clearly ruled that
an injured Alberta worker has this right, but the Alberta Government seeks to
remove it. Both the Alberta Court of Queen's Bench and the Alberta Court of
Appeal have recently ruled in Workers Compensation Board v. Gutierrez, that the
Workers Compensation Board cannot insist on being the sole client of a lawyer
in injured worker litigation. This protects injured workers as it allows them
representation in circumstances where there is a conflict of interest on the
part of WCB. In other jurisdictions in this country, the claimant has the
choice to make the claim on his or her own, or through the services of the
Workers Compensation Board. In Alberta, the Court of Appeal recently clarified
that such a worker can retain his or her own counsel in order to pursue a
In matters involving the Workers Compensation Board,
Bill 15 prevents Albertans injured in work related accidents from obtaining
legal counsel of their own choice even when the WCB is in a conflict of
PSYCHOLOGICAL PROFILING AND MENTAL DAMAGE OF
2.) Inappropriate Psychological
Assessments: Injured workers repeatedly report that the workers
compensation board has forced them to submit to inappropriate psychological
assessments (regardless of the type of injury they have sustained) that appear
to be targeted at 'fishing' for any evidence of psychological problems in the
injured worker's past that could possibly be used as an excuse to deny
" . . . there was an attempt by the CEO/VP of the WCB of BC to
hide the assessment, from an MLA no-less, and impugned me to being incurably
mentally ill . . . This is the extreme worst case scenario for an individual
because of the severe effects to income security and psychological stability
due to harm caused by the stigmatizing effect." - Darrell
Powell - as presented to The Standing Senate Committee On Social Affairs
Science And Technologies 2005 From
RainyDay Syndrome (Also, hear Darrell Powell's
radio series on WCB as a Negative Social Determinant of
Mental Damage Caused by the Delay and Denial of
Compensation: Injured workers report that going through the
adversarial and often abusive WCB process is, itself, damaging to them mentally
and that the delay and denial of needed supports harms them (as well as their
families) mentally and physically. (Hear Darrell Powell's
radio series on WCB as a Negative Social Determinant of
" . . . trauma involves exposure to a life-threatening
experience . . . Yet, many individuals exposed to violations by people or
institutions they must depend on or trust also show PTSD-like symptoms -- even
if their abuse was not directly life-threatening. . . . it appears that
betrayal by someone on whom you depend for survival . . .may produce
consequences similar to those from more obviously life-threatening
traumas." - The Trauma Information Pages
5.) Mental Damage Caused by Inappropriate Video Surveillance of
Injured Workers: "The clandestine surveillance of injured
workers can also cause mental distress . . . in those cases where the worker
had been made aware of the surveillance, the mental anguish associated with
this type of violation remains unrecognized and uncompensated. . . . It is also
unclear why some jurisdictions permit video surveillance of workers in cases
where it would be illegal to use the same techniques to catch criminals." -
Katherine Lippel, Professor of Law -
Legal and Social Issues Raised by the Private Policing of
Injured Workers and
How Injured Workers Get Screwed By Insurance Companies
regarding video surveillance
Canadian statistics are not easy to find. However, the
New Brunswick workers compensation board, (the Workplace, Health, Safety and
Compensation Commission (WHSCC)) is one of the few provinces that reports fraud
statistics. In their
Report for the third quarter of 2006, they report that several claims were
investigated internally, however they state that: "As a result of its investigations, two complaints of fraud
committed against the Commission were filed with local police departments."
(There were no fraud cases reported filed with police in the
first two quarters of 2006 ) - It was not reported whether these police
filings were employer fraud or employee fraud allegations. - It was not
reported whether these allegations resulted in convictions. If they did
result in convictions, and assuming they were both employee fraud cases, and
given that the total claims for that year to date were 19,026 . . . then the claimant fraud rate was . . .
0.01% (In 2005 there
were no fraud prosecutions reported, in 2004 there was one, and in 2003 there
were none reported. Although there were several reports of investigations that
did not lead to reported prosecutions. As well, several claimants were cut off
benefits apparently without being prosecuted.)
Yet despite the extremely low incidence of claimant fraud
(0.01%), WCBs routinely advertise the importance of claimant fraud, misleading
the public into believing that claimant fraud is an important economic factor
and causing unwarranted 'psychological profiling' of injured workers as
malingerers, cheats and frauds.
"The fraud of worker
fraud. In the early 1990s, insurers and businesses began a misleading
media campaign focusing on employee fraud, even though only a tiny percentage
of workers one to two percent engaged in it. Despite its lack of
substance, the campaign caused rights and benefits to be cut in many states,
and created an unfair stigma for injured workers." -
Center for Justice & Democracy
"Despite the fact that studies show that claimant fraud in
this system is minimal . . . these exposés, encouraged by irresponsible
allegations from the insurance industry, feed the myth that workers injured on
the job are frauds, cheats, and malingerers" -
The Myth of Workers' Compensation Fraud (PBS
Psychological Profiling of Injured Workers as Careless, Clumsy or
Stupid: The new push on advertising workplace safety practices
subtly looks at workplace injuries as, somehow, the fault of the worker as
opposed to addressing real workplace hazards. This stigmatizes workers as being
somehow responsible for their own injuries and contributes to the psychological
profiling of injured workers as careless, clumsy or stupid. SEE:
WSIB Removed from Facebook for
Posting Callous Photos that Mock Injured Workers - " . . . the photos and the comments on them display "a
contemptible level of callousness" towards injured workers, and . . . show
the WSIB views injured workers as "worthy of mockery, rather than respect
PTSD Can Be Induced By Adversarial Workers Compensation
System - "To put it simply, Legal Abuse Syndrome is the result of an
abuse of power differential. The legal system represents the power to take a
life, incarcerate a person, remove a persons children, family or property
. . . conditions that cause Legal Abuse Syndrome come from often inadvertent
but officially sanctioned bullying."