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Index March 03 2009
Judge Chastises WCAT For Stigmatizing and Attacking Injured WorkerRegarding language used by the WCB Appeals Tribunal (WCAT) the judge stated: "This language is incredibly broad and strongly suggestive of a pre-formed opinion, or of a finding of lack of credibility on the part of Mr. X (the worker). It certainly does not reflect the conclusions of Dr. Y, psychiatrist. It is also inconsistent with the conclusions of Dr. Z, none of whom made any allegation of malingering despite each of them having assessed the petitioner numerous times.
. . . I have concluded that it was patently unreasonable and unfair for the Vice Chair in this appeal to have commenced his reasoning with what appears to be an attack on the petitioner’s credibility without any detail or context being provided."
The judge stated:[45] With respect to this issue, I cannot fathom why absolutely no references were made to the opinions of a medically trained psychiatrist who had been personally seeing Mr. X for numbers of years when the conclusion of mostly medically untrained personnel who had not even interviewed Mr. X were preferred. One would think that issues of credibility and the basis of conclusions which are generally inconsistent would be looked at in detail by the Board that is inquisitorial in nature. [47] . . . Under the heading Background and Evidence the Vice Chair stated: . . . The worker developed a conviction that he was 100% disabled . . . [48] This language is incredibly broad and strongly suggestive of a pre-formed opinion, or of a finding of lack of credibility on the part of Mr. X. It certainly does not reflect the conclusions of Dr. Y, psychiatrist. It is also inconsistent with the conclusions of Dr. Z, none of whom made any allegation of malingering despite each of them having assessed the petitioner numerous times. [49] I have concluded that it was patently unreasonable and unfair for the Vice Chair in this appeal to have commenced his reasoning with what appears to be an attack on the petitioner’s credibility without any detail or context being provided. [50] The Vice Chair’s further comments at p. 8, para. 2 of the decision, are also suspect. The Vice Chair stated: . . . I agree with the committee, and I find that the worker does not have a permanent functional impairment for his psychological conditions. [51] In effect, I have concluded the Vice Chair also breached the common law rules of fairness, s. 58(2)(b) of the ATA, when its decision appears to be based entirely on the PDAC’s opinion without weighing it against the opinions of Dr. Y and Dr. Z. SUMMARY 1) I order the Worker’s Compensation Appeal Tribunal (“WCAT”) decision . . . be set aside; 2) I direct the WCAT to reopen, rehear and re-determine the petitioner’s appeal with a different Vice Chair; 3) I set aside WCAT decision . . . 4) I direct that WCAT reopen, rehear and re-determine the petitioner’s appeal with a different Vice Chair; and 5) Costs are awarded to the petitioner with respect to the judicial review of Vice Chair Elliot’s decision . . . [77] Finally, although I cannot direct how WCAT proceeds on a rehearing basis, I would strongly suggest to WCAT that the appeals be heard at one time by one Vice Chair and that if there are time limits for hearing appeals, as indicated by Mr. Patterson on behalf of the petitioner, that time be made available for full and complete submissions. [78] I make this suggestion on the basis that the petitioner has been dealing with WCB for just short of two decades, and the fact that the certified WCAT record placed before me exceeds 1,500 pages. http://www.courts.gov.bc.ca/jdb-txt/SC/09/03/2009BCSC0300.htm (CIWS Note: Injured workers report that WCBs: 1) use tactics of delaying the claim for years and even decades 2) overwhelm the claimant with paperwork 3) ignore doctors who differ with the WCB's agenda to deny the claim 4) stigmatize the claimant as a malingerer without evidence This case demonstrates these issues. How many thousands of similar cases never make it to court?) The CIWS is calling for a federal public judicial inquiry into wrondoing by workers compensation boards across Canada. Back to Article Index |