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"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 2005


WCBs Are Operating Outside of Canadian Law - INDEX:
ALSO SEE LAW - COURT DECISIONS

Misfeasance

Illegal Financial Activities

Violating The Intent Of The Enabling Legislation

Withholding, Tampering With And Falsifying Medical Evidence

Discrimination - Denying Compensation for Occupational Diseases

Collusion, Cover-ups and Conspiracies

Reporting False Workplace Injury Statistics

Using an Insurance Industry For-Profit Business Model to Deny and Delay Claims

Unlawful Use of Impairment Ratings and AMA Guides

Violating the Police Act

Constitution And Charter Violations

Psychological Profiling and Mental Damage of Claimants



MISFEASANCE



"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, [2003] 3 S.C.R. 263, Roncarelli v, Duplessis [1959] 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 others.

From the Supreme Court of Canada discussion (in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 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, [1997] 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), [2000] 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, [1979] Q.B. 722 (C.A.)))

" . . . 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 held."

". . . 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 duty."

"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. "


Odhavji Estate v. Woodhouse (HTML), 2003 SCC 69, [2003] 3 S.C.R. 263 Supreme Court decision

Further Discussion of the Odhavji Case

Also see:
THE WCB ACT DOES NOT CONFER IMMUNITY UPON GOVERNMENT REGULATORS FOR BREACH OF STATUTORY DUTY BY WCBs


ILLEGAL FINANCIAL ACTIVITIES:

Reports are coming forward of illegal financial activities being perpetrated by WCBs. WCBs are reportedly:

- denying an injured worker's legitimate claim, then turning around and suing the person who caused the accident for half a million dollars.

- falsifying overpayments to injured workers, then terminating the injured worker for fraud when the injured worker never received any of these so-called 'overpayments'.

- rewarding case managers in a 'bonus system' for saving money and clearing away cases by specific deadlines.

- paying dividends to employers from surplus funds as injured workers and their families are forced to go to food banks, etc.

All of the above can be considered as misappropriation of money held under direction and omission of duty,

These activities are illegal, are fraudulent and are an abuse of power.

See:
WCB funds mismanaged, stolen, alleges city advocate for injured workers
Claims derailed - Workers' Compensation decisions skewed by incentives, deadlines
Allegations of fraud
Overworked Food Bank Feeding Injured Workers as WorkSafeBC Reports Surpluses Over $2.2 Billion



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 status'.


According to Terence Ison - Professor Emeritus, Osgoode Hall Law, a recognized expert on WCB law,
"The Acts provide for an enquiry system, not an adversary system.
There is, therefore, no burden of proof on anyone except the Board."



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 law.

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 legislation.)

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.

The injured worker was never required to prove their case.

Workers cmpensation was never intended to be an adversarial case law system. It is a legislative administrative body, not a decisional court or an insurance company. Yet workers compensation boards routinely use case law concepts such as 'triggering' and 'probability' to deny claims.

The injured workers right to presumption under legislation is being routinely violated by WCBs across Canada.

More discussion on presumption can be found at:
- BURDEN OF PROOF - BC Supreme Court Rules that placing the burden of proof on the worker is "an error of law", a "jurisdictional error".
- Terence Ison - Professor Emeritus, Osgoode Hall Law School - "The Acts provide for an enquiry system, not an adversary system. There is, therefore, no burden of proof on anyone except the Board."
Also see:
NEWS RELEASE - Canadian Injured Workers Society
Our Firefighters Deserve Much Better
http://wcbcanada.com/modules/WCB-BB/viewtopic.php?t=953


WITHHOLDING, TAMPERING WITH AND FALSIFYING MEDICAL EVIDENCE:

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 surveillance.

Withholding and tampering with medical evidence is a Criminal Code violation.

See "Tapes kept from workers" (Nov, 2006) regarding withholding video evidence.
and How Injured Workers Get Screwed By Insurance Companies regarding video surveillance


DISCRIMINATION - Denying Compensation For Occupational Diseases

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 others.

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.

SEE:
Industry Health concerns extend beyond shipyard workers, council told

Newfoundland Government-Owned Business in Marystown Not Compensating Toxic Chemical Cancer Victims - CAW

Chronic pain court ruling - possible $12 million payout to 1,400 people


Specifically on Stress claims:

By denying chronic onset stress diseases caused by excessive workload, WCBs allow corporations to understaff their workplaces to increase corporate profits.

This is a conflict of interest for provincial government employers.

2009 Important New Decision May 2009: BC Court Strikes Down Wcb Policy On Compensation For Mental Stress - Finds It Discriminatory Under The Charter

A report 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

Despite the fact that people who are under chronic stress in their work place are at particularly high risk of getting depression (according to the American Journal of Public Health), workers compensation boards do not compensate for depression due to work stress. From: Major Depressive Episodes and Work Stress: Results From a National Population Survey

the Final Report of The Standing Senate Committee on Social Affairs, Science and Technology ("Out of the Shadows At Last" - May 2006), stated:
"The Committee . . . . recommends . . . that the Canadian Mental Health Commission . . . work closely with provincial and territorial governments as well as with Workers’ Compensation Boards, employers and trade unions across the country to develop best practices with respect to compensation for occupational stress-related claims."
Out of the Shadows At Last - Transforming Mental Health, Mental Illness and Addiction Services in Canada - (aka "KIRBY REPORT") - The Honourable Michael J.L.Kirby, Chair The Honourable Wilbert Joseph Keon, Deputy Chair May 2006
(PART 1 (pdf)) (PART 2 (pdf)) (FULL REPORT (html))


also see:
Public policy for the prevention and compensation of mental health problems related to work: issues of importance for women - Katherine Lippel CRC in OHS Law, University of Ottawa, International Congress Women, Work and Health, Zacatecas, October, 2008


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 Principles 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 issues at:

WCB and Stress

WCB Statistics Grossly Under-represent Mental Health Injuries

PTSD, Chronic Stress, Psychological/Mental Injury and WCBs

CUPE PSYCHOLOGICAL INJURY (Human Rights Class Action) 2007

PTSD Can Be Induced By Adversarial Workers Compensation System

Veteran Firefighter with PTSD Made Homeless by Alberta WCB

Psychological Profiling And Mental Damage Of Claimants

Public policy for the prevention and compensation of mental health problems related to work: issues of importance for women - Katherine Lippel CRC in OHS Law, University of Ottawa, International Congress Women, Work and Health, Zacatecas, October, 2008



COLLUSION, COVER-UPS AND CONSPIRACIES:

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."

and Conspiracy:
"WCB doctors plotted, planned and directed my suspension . . ."

Related:
Read the story of Dr. David Kuntz
A Giraffe has been sighted in Vancouver BC - David Kuntz MD
The Matter of Dr. David Kuntz

(*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 they?")"

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?"
SEE:
DECEMBER 2006: - FIVE DEATHS A DAY - Workplace deaths on the rise in Canada - (WCB's statistics flawed - underestimate incidence of injury and death)

Canadian Injured Workers Society - Workers compensation - misleading workplace injury statistics, stats


USING AN INSURANCE INDUSTRY FOR-PROFIT BUSINESS MODEL TO DENY AND DELAY CLAIMS:

Canadian WCBs are delaying and denying compensation for injured workers in cases of expensive long-term claims. Delay and denial are well-documented insurance industry tactics.

Yet Canadian WCBs are not insurance companies, they are administrative boards of the provincial governments.

Nevertheless, Canadian WCBs belong to the American Association of State Compensation Insurance Funds: (http://www.aascif.org/public/2.0_directory.htm) and the International Association of Industrial Accident Boards & Commissions (http://www.iaiabc.org/about/executive.asp) (mainly American)

WHY?

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 more profit.)

SEE:
WCB Has An 'Identity Crisis'


UNLAWFUL USE OF IMPAIRMENT RATINGS AND AMA GUIDES:

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

Yet these illegal "impairment" ratings are used routinely by Canadian WCBs

AMA Guides Not Valid - 2009
Yet these illegal "impairment" ratings are used routinely by Canadian WCBs

New York 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 (ICF).)

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 disability."
http://jama.ama-assn.org/cgi/content/abstract/283/4/519

Dr. 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

WCB 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 community." http://www.workcompcentral.com/signup/news/article.htm?article=r37m06m1491123no34a0fm



More on AMA guides and the difference between 'disability' and 'impairment' can be found at:
http://wcbcanada.com/modules/WCB-BB/viewtopic.php?t=221

More controversy surrounding the AMA guidelines can be found at:
http://wcbcanada.com/modules/WCB-BB/viewtopic.php?t=1079
and at:
Special Report: American Medical Association is Injuring Patients with RSD



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 WCB’s investigative activity is directly related to claims adjudication (determining benefit entitlement) - criminal prosecution investigations make up less than one per cent."
http://www.wcb.ab.ca/about/siu/siu_about.asp

If 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 trial.

Yet WCB seems to be doing exactly this.

This is contrary to the Rule of Law under which all Canadian society is based.

(Note: The Saskatchewan WCB has recently lobbied to be able to prosecute without a conviction.
(See their 2006 Review submission)


CONSTITUTION AND CHARTER VIOLATIONS - Denying Injured Workers Their Constitutional Rights:


The Supreme Court of Canada ruled that injured workers should be able to ask administrative Boards to treat them fairly under the Charter. From Alberta Trial Lawyers Association and
Supreme Court Decision - Chronic Pain - Martin and Laseur, Nova Scotia

“. . . the power to interpret law is not one which the legislature has conferred lightly upon administrative tribunals”. When a legislature chooses to do so, whether explicitly or by implication, the courts must assume that the administrative body at issue was intended to be an appropriate forum for the resolution of complex legal issues, including the interpretation and application of the Charter."
Supreme Court Decision - Chronic Pain - Martin and Laseur, Nova Scotia
http://www.meao-cfs.on.ca/disability/legal_supreme.shtml

Yet provinces are pushing through legislation which attempts to eliminate the Charter rights of individuals appearing before administrative boards such as the WCB:


FOR 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


ONTARIO The WSIB Appeals Tribunal had to be forced by the Supreme Court of Canada to acknowledge its human rights duties. Yet they still erect bureaucratic barriers to access to fundamental rights for injured workers. See WSIB Appeals Tribunal Forced by Court to Finally Acknowledge Human Rights Duties





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 claim.

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 interest.




PSYCHOLOGICAL PROFILING AND MENTAL DAMAGE OF CLAIMANTS:

1.) Psychological Injury Caused by WCB Leading to Suicide:
SEE:
SUICIDE and WCB
Judge Chastises WCAT For Stigmatizing and Attacking Injured Worker
and
"Mr. Bupindar Sing Kang is not here after eight years with the WCB of BC. Before that he was a functioning, contributing member of society, namely a truck driver I believe, just as I was an extremely active and successful ship builder. What his story has in common with others of suicide is the psychiatric injury caused by interaction with the WCB that precedes the event, subsequent to occupational injury and disability." Disability Adjustment And The Co – Relationship of Workers Compensation Induced Psychiatric Injury - Darrell Powell, - as submitted to the Standing Senate Committee Social Affairs, Science and Technology – On Mental Health
(Also, hear Darrell Powell's radio series on WCB as a Negative Social Determinant of Health)
SEE: SUICIDE and WCB
100% of Workers' Advocates have had clients who have committed suicide - from "Comments for the INDEPENDENT REVIEW PANEL On the WHSCC of New Brunswick Submitted by the Office of Workers’ Advocates November, 2007" - "All of the advocates have had clients who have committed suicide while on a claim."
Judge Chastises WCAT For Stigmatizing and Attacking Injured Worker

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 compensation.

" . . . 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 The RainyDay Syndrome
(Also, hear Darrell Powell's radio series on WCB as a Negative Social Determinant of Health)

3.) Inaccurate Psychological Assessments:
Injured workers report that WCB uses its own slate of doctors and ignores any psychological reports by other doctors if they are in the injured worker's favour.
Judge Chastises WCAT For Stigmatizing and Attacking Injured Worker

4.) 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 Health)
" . . . 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

Judge Chastises WCAT For Stigmatizing and Attacking Injured Worker

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


6.) Psychological Profiling of Injured Workers as Cheaters or Frauds:
Over the last decade, there has been increasing media propaganda that paints injured workers as malingerers and frauds when the statistics do not support those findings. Studies from the US show that not more than 1% of total claims are due to claimant fraud and the real number is closer to 0.01%. ( see "Widespread fraud: Bogus claim" and New York Committee for Occupational Safety and Health and The Myth of Workers' Compensation Fraud (PBS Frontline)

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 Corporate 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.)

The above statistic of 0.01% is reinforced by the New York Committee for Occupational Safety and Health who state that the NYS Insurance Department reports a 0.01% incidence of claimant fraud as well.
(From http://www.nycosh.org/workers_comp/2007reform/08%20WorkerCompFS.pdf

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.

Judge Chastises WCAT For Stigmatizing and Attacking Injured Worker
"For every person who abuses the system, there's a thousand more being abused by the system,"
- Blair Doucet, president, N.B. Federation of Labour


"The fraud of worker fraud. In the early 1990’s, 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

Employer WCB Fraud Pegged at $100 BILLION in California Alone- Bill Zachary who chairs the California Fraud Assessment Commission says, " The focus at the commission and among law enforcement is shifting from employee fraud to . . . employers misreporting payroll . . ."

"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 Frontline)


7.) Further 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 and empathy."

"Stigmatisation of injured workers is often the result of derogatory
comments about them in the media and by politicians."

- Katherine Lippel, Professor of Law
Legal and Social Issues Raised by the Private Policing of Injured Workers



ALSO SEE: 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 person’s children, family or property . . . conditions that cause Legal Abuse Syndrome come from often inadvertent but officially sanctioned bullying."

AND
PTSD, Chronic Stress, Psychological/Mental Injury and WCBs
Also see extensive discussions on psychological injury issues at:
WCB and Stress

WCB Statistics Grossly Under-represent Mental Health Injuries

PTSD, Chronic Stress, Psychological/Mental Injury and WCBs

CUPE PSYCHOLOGICAL INJURY (Human Rights Class Action) 2007

PTSD Can Be Induced By Adversarial Workers Compensation System

Veteran Firefighter with PTSD Made Homeless by Alberta WCB

DISCRIMINATION - Denying Compensation For Occupational Diseases

SEE WHAT INJURED WORKERS ARE REPORTING



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