Friday, 10 April 2020

In the Course of…


In the Course of…

Ok I am struggling to understand something in the entitlement of personal injuries, as a result of a workplace accident and I was hoping to get some insight from others.



My understanding being that a personal injury being physical or psychological in nature. A work accident being a sudden event or an over time event which causes the personal injury.



The law, depending on Province/Territory has a statement to the effect of presumption of a workplace accident being in and out of the course of employment. The presumption being until proven otherwise.



When a worker suffers a personal injury from a workplace accident, we consider these two separate things. The workplace accident is the event. The personal injury is the result/cause of the event. Often, workers compensation boards will grant a work accident and then deny the personal injury. They will say there is no medical documentation proving the injury is related to the work accident.



However, when you look at the written law, it provides for definitions.

For example, in Ontario’s most current edition of the Workplace Safety and Insurance Act, 1997 it provides the definition of what an accident is:

“accident” includes,

(a) a wilful and intentional act, not being the act of the worker,

(b) a chance event occasioned by a physical or natural cause, and

(c) disablement arising out of and in the course of employment; (“accident”)



The first two are what most would describe of an accident. However, the third is what we would describe as the resulting injury. If one knows what a disablement is “the act of becoming disabled to the extent that full wages cannot be earned also : the state of being so disabled”. It should also be added that if there is a permanent disfigurement this too is considered a disablement.



So, a work accident is something that causes a loss of earning capacity. Moreover, this cause is presumed under law as mentioned above.



In our civil court system, when a person is suing another, for a personal injury. The individual must establish something called causation. Causation is the act of the defendant, which caused the harm to the plaintiff. Or more accurately defined:

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus (an action) from which the specific injury or other effect arose and is combined with mens rea (a state of mind) to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.



Therefore, in dealing with workers compensation matters, specifically the granting of workplace accidents and injuries, the causal effect of the injury is proven once the accident has been accepted, unless proven otherwise.



For example, when Betty is working at her employer’s workplace, she is involved in a workplace accident when a machine crushes her arm. The workplace accident is “the machine crushed betty’s arm”. Betty’s injury as a result of the workplace accident is “a crush injury to her arm”.



One is the event and the other is the result.

The WSIB (Ontario’s WCB) receives the three reports employer, worker, and doctor. After reviewing the reports, the WSIB grants or accepts the workplace accident occurred but, in some cases, then denies the injury to Betty’s arm. The WSIB has a lawful duty to state the reason (to prove otherwise) the injury was denied, as, in effect, an injury is presumed when an accident is accepted.



Often, workers compensation boards will deny claims for personal injuries, based on improper or no medical documentation. This I believe is unlawful. There is a lawful requirement for the workers compensation boards to prove the lack of causation between the accident and personal injury, as the law makes them one and the same. Instead, the workers compensation boards claim a worker MUST have medical documentation of a personal injury. In doing so, this places an unlawful reverse onus on the injured worker to prove their work injury, even though the accident was accepted by the workers compensation board.



So, if your personal injury in your claim for workers compensation benefits has been denied initial entitlement, then maybe you should look to see if the work accident was accepted or denied by the workers compensation board.



This is not legal advice but my thoughts on understanding causation in workplace accidents.



Please let me know your thoughts in this topic. Am I right, wrong, or totally insane?


Friday, 13 March 2020

Judcial Review & National Class Action Lawsuit Coming!


Ok I am sure I have been keeping most of you up to date with my current issues with the WSIB (Ontario’s WCB).



I just filed my application for Judicial Review - Certiorari with the court today. I also responded to an e-mail from a lawyer form the WSIB. He wanted a copy of my application. I have no doubt in my mind he has an ulterior motive. That is ok time will as they say tell the test of tales.



In performing my preparations for my Judicial Review, I had notice the WSIB Return to Work Advisor – RTW, had said performing the job of computers was physically suitable for me. However, when I looked closely at their report, they never mention my accommodations or the HRDC working conditions. These are the two KEY pieces of information needed to determine suitability.



Well I wanted to find out, so I called the WSIB. I spoke to the person on the phone and OMFG! I felt like I was on a really fast merry-go-round. I would say I want to ask this board staff member a question. People in legal actions have a right to speak to people and ask them questions prior to the court proceeding. I mean the individual can say I have nothing to say, but this was just stupid. She would say you will have to speak with the WSIAT. I would say to her, what the hell does the WSIAT have to do with this witness, they are at the WSIB and she would then repeat herself. So, I ask to Speak with the President’s office and left a message. I said I would file a motion if I did not get to speak with her.



I then sent an e-mail to Mr. Belec counsel for the WSIB and explained what I wanted from the WSIB to him. I thought he might be a bit more receptive being a lawyer and all. So, Mr. Belec e-mail me right back, faster than my adjudicator (I refuse to say case manager) I admit. He wanted a copy of the application I field with the Court. It seemed like he didn’t believe me, but that’s ok I am used to being accused of being a liar by the WSIB. So, I sent the filed application to him I also unloaded on him as I know a few things about lawyers that they must be nice. I also informed him I would be filing a national class action lawsuit against all WCBs and WCATs in Canada on behalf of all injured workers, this in addition to my application for Judicial Review.  
The following is my response and Mr. Belec's e-mail. 
  



I will be preparing my class action and hope to file it with the court sometime next week.

YES I KNOW I will, if it is certified will let everyone know so they can add their name as plaintiffs.

Monday, 17 February 2020

FOI - FUNCTIONAL OVERLAY & HOW ARE BENEFITS CALCUALTED?


Freedom of Information Request for Functional Overlay & calculation of benefits

For some time, I have had major concerns with two major issues. The use of a term Functional Overlay, which the WSIB (Ontario’s workers compensation board) claims to be a medical term. I had written a previous BLOG about Functional Overlay here My second concern is how the WSIB calculates your benefits.
I had made many request of information from the WSIB then in January 2020 I made a formal Freedom of Information request. The WSIB provided a response which is available.



Information request for Functional Overlay 

My first concern is with what the WSIB claims to be a medical term of “Functional Overlay”. According to recently obtained information through my freedom of information request, the WSIB classifies Functional Overlay, as
mental Disorders; Pain disorders related to psychological factors; Psychological pain, sit unspecified”. 

The WSIB, in their response to my freedom of information request, explained that:

 “the “WSIB Diagnostic Codes” are part of the Provider Bill Approval System (PBAS). These codes were previously used by our processing staff to facilitate the payment to the practitioner for the service provided.” 

So, from reading the explanation by the WSIB, the term is not used as a medical assistive aid to assist doctors in diagnosing injured workers, or even to assist WSIB adjudicative staff in granting entitlement. You see I was very confused by this, as I read a scientific report entitled “Functional Overlay: An Illegitimate Diagnosis?”. The report was published in the Western Journal of Medicine, a reputable journal. The report states the term “Functional Overlay is not a recognized psychiatric diagnosis”. What I found even more interesting is that the report was written almost twenty years before it was used in my case.  



What is even more disturbing is I was able to obtain evidence from the WSIAT (Ontario’s workers compensation appeals tribunal) that the WSIAT also made use of this unrecognized and illegal medical term to disallow legitimate entitlement to benefits to injured workers.



I can only speculate at this time but would likely anticipate that this term would be utilized is most cases involving repetitive strain injuries.



This is the second time I have referenced medical scientific research confirming the abuse of the medical community for the benefit of the WCBs. The first was a medical report I previously referenced and was provided to me an injured worker advocate which confirmed Degenerative Disc Disease is NOT age-related, but it is work related.



The intentional and deceptive use of Independent Medical Examiners – IMEs to improperly use medical terms and non-medical terms by workers compensation boards and will be one of my facts for confirming the WCBs and the WCTs across Canada have intentionally, knowingly and deceptively abused their public office to be unjustly enriched at the cost of denying legitimate claims for workers compensation!



I AM PISSED!


Information request for calculation of benefits:

The second concern I raise, is how the WSIB makes payment to injured workers, like all WCBs in Canada. Injured workers who suffered a worker injury prior to January 1, 1998, received 90% of their net pay. After January 1, 1998, injured workers would receive 85% of their net pay. Now I am sure many get this confused. So, I will explain it here. Our gross pay is what we are paid before taxes. Our net pay is what we get on our cheque, after all the deductions. Our net pay is normally calculated by our employers. Our employers provide a detailed break-down with what is paid out on every pay stub. How much we pay in federal taxes, provincial taxes, OHIP and so on. They do this because it is the law. The WSIB, on the other hand, does not. The WSIB is provided a gross salary by your employer when you are injured on the employer’s report of injury form. From this the WSIB calculates your net earnings. And you are paid either 90% or 85% depending when you were injured. What is very problematic is that the WSIB never tells you or I what is the calculations used to get to net pay. Now many may argue it is all the same, but it is not. A single person’s net pay will be much lower than a married person with dependents. This is also why when an injured worker family status changes they are to notify the WSIB. When my daughter was born in 2006, I notified the WSIB, but no change was made in my benefits. Since that time, I have been fighting with them just to be told how they calculate my benefits form gross to net. Obviously with very little success! One would think it the providing of such information would be very transparent. That I should have received a letter from the WSIB when I was first injured that confirms the accident, the areas of injury, the accepted gross reported amount and the calculation for net income. One would think a letter would go something to the effect of



Dear Mr. Injured worker,



This letter is to confirm on accident date, description of accident, this resulted in you injuring your areas of injuries.  As a result, your gross income has been accepted at gross daily pay rate, per day.  It was also reported by your employer that you are Family composition and household income. Therefore, your net daily pay rate is net daily pay rate. This has been based on your family composition, household income and allowable tax credits. Therefore, as you work accident occurred prior/after to January 1, 1998 you will be paid income replacement benefits at the rate of 90%/85% of your net daily pay rate for each full day you remain off work.                



The information in the above form-type letter, which I created in two minutes, is crucial information an injured worker needs to fight any future appeals. to understand their claim and provides for true transparency. I believe the WSIB intentionally leaves this information off so they can make up any dollar amounts they wish with no required proof!  



What is also very disturbing is that the Net pay calculation is something that very few are informed of by the WSIB or any WCBs, if any. Moreover, we are never told the calculation used to get to Net pay, so if a mistake is made, we can have it corrected.



Like the first issue of Functional Overlay, I had been after the WSIB to provide the calculation for my benefits. Then in January 2020, I filed a freedom of information request, with the WSIB. I was expecting to see something to the effect of:

Mr. Taylor your gross pay was accepted as $198.25 per day. From this your net pay was calculated at $_____, per day. This has been calculated based on your family status of being single, married etc. which is __.

Instead the WSIB provided the answer of a copy of WSIB policy 18-01-03, which was useless to say the least. It provides for minimum and maximum benefit dollar amounts, but it makes no mention of if your income is in between the min or max.



Therefore, after receiving the WSIB’s response to the above two concerns, needless to say, I will be pursuing a review with the Information and Privacy Commissioner of Ontario for this WSIB decision. This will be on the simple basis that the first concern and request for information was not answered. I asked where did the WSIB (not the doctor) get the term from? Additionally, I had also asked how my Net pay was calculated and I was provided a policy which did not provide the information.  

Please let me know what you think!

Monday, 27 January 2020

CAN YOU APPEAL A DECISION OF A WORKERS COMPENSATION APPEALS TRIBUNAL TO THE COURTS?


CAN YOU APPEAL A DECISION OF
A WORKERS COMPENSATION APPEALS TRIBUNAL 
TO THE COURTS?

My round-about opinion of the recently released decision by the Supreme Court of Canada to revise the review of administrative decisions, in their decision of
 Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65.



Technically this may sound simple, and easy to answer. Unfortunately, it is not. Canada’s workers compensation system is provincial/territorial. This means the laws vary from one region to the next. You’d be shock how much they vary! For example, some provinces allow for an appeal to the provincial/territorial Courts of Appeal, while others only allow Judicial Review. Then sadly some, like Ontario, who is the alleged birthplace of workers compensation,

do not allow an appeal or Judicial Review, within its law.



So, your best option is to read what the workers compensation law says in the province or territory where you are from, where you were injured, and where your employer is based out, if they are different. For example, in a hypothetical case, what would make things even more fun for an injured worker to appeal after getting a tribunal decision, is when a worker works in multiple provinces/territories, and/or lives in one and works in another. You would be surprised how often this actually happens!



To start with, just so you know there are different types of Judicial Review, with different standards or tests to be met. There is Injunction, which is used to stop a government agency and/or officer from acting. There is Mandamus, which is used to compel a government agency and/or officer to act. There is also Prohibition and Declaration. Finally, there is Certiorari, which is when a court reviews a lower court, board, tribunal, government agency, and/or government officer’s decision.  



To make things simple, if that is possible with workers compensation, I will focus on Ontario. It is a province with the strictest, or as I like to say, “one of the most fascist systems of workers compensation laws in Canada!” It is also sadly, the province where I live and have been fighting for more than twenty years.



I currently have two applications for leave to appeal before the Supreme Court of Canada. So, I am almost at the end of my fight. Well, then there is a plea to the International Labour Congress – ILC, which is a division of the United Nations and can only be done once all avenues of appeal have been exhausted. Unfortunately, only my first application to the Supreme court of Canada, has been inputted into the Supreme Court of Canada’s database, which is Paul Taylor v. Workplace Safety & Insurance Board – WSIB, et al.  This application, which I prepared on my own – ugh! Dealt with the right of an injured worker to sue a  workers compensation board – WCB and/or a workers compensation appeals tribunal – WCAT, when they abuse their public office and/or positions as public officers.



My second application to the Supreme Court of Canada involves the right of an injured worker to have speedy determination of decisions regarding workers compensation benefits. This is widely understood in common-law across Canada and I was just trying to enforce this right. This is what judges tell injured workers when they want to sue their employers for their work injuries. The judges say yes, our Charter rights are violated by the various workers compensation laws, which restrict our right to sue our employers. However, and don’t yell at me! then the judges invoke s. 1 of the Charter. Stating that yeah well, some injured workers may lose, but most get speedy determination and payment of benefits, so it is justified in a democratic society.



YES, I KNOW, BULLSHIT RIGHT!



Section 1 of the Charter is something that courts can invoke, and regularly do when a Charter violation is found to be valid, but the courts don’t want to give you the violation. They can say yeah but the Charter violation is acceptable under section 1. Also, section 33 of the Charter, can be invoked by the same way by a legislature or the Parliament of Canada. That was what Dawg Ford invoked when he reduced the size of the councilors in the City of Toronto. Honestly, everyone I talked to said if he did it after the election no one would have cared. However, it was clear it was a personal vendetta and improperly used the s.33. Not surprisingly, the Court of Appeal for Ontario agreed with Dawg Ford.



Well I used the court’s argument, that we get speedy determination and payment of benefits, against the courts, or so I thought. I forgot they make the rules! In my particular case, I had asked the WSIB (Ontario’s workers compensation board) to cover the cost of over the counter pain medications and topical pain cremes. Not surprisingly they said no. I knew the last time I went to the WSIAT it took ten years – I can’t wait that long! No one can or should! So, I brought an Application for Judicial – writ of mandamus, to ask the court to order the board and/or tribunal to hurry up and schedule a hearing, hold the hearing, and render a decision. Ironically, the WSIB made things even more fun for me. They had sent me a letter to get up to date medical information from my doctor. First time in over twenty years. So, I did, exactly as the letter said, I took the letter to my doctor and asked her to prepare a report and send it directly to the WSIB. Now I assumed the doctor sent the report in. One would think the WSIB would call me, weeks before and say hey we didn’t get the report. Nope! Instead they cancelled my medical benefits. Therefore, this made my Application for Judicial – writ of mandamus urgent and of concern. When it went to court, even the judge noted it was now a great concern. Unfortunately, the judge blindly listened to the WSIB lawyer who said that it is a WSIB policy that injured workers are required to submit the medical directly to the WSIB and medical reviews are done every two years. Ironically, the lawyer never provided any documented proof or reference any section of law. Not surprisingly, I lost and again lost at the Court of Appeal for Ontario. So, as I said that has gone to the Supreme Court of Canada and I am just waiting on it to be inputted into the Supreme Court of Canada’s database. I have repeatedly asked the WSIB for the policy or procedure but have never received anything aside from in short form we can do whatever we want!



Well that said, onto the current topic of Judicial Review – Certiorari in Ontario…



Many people have been intentionally and deceptively misled to believe that they have no right of appeal or even a right of Judicial Review, after a tribunal decision is made. This is especially the case in Ontario, with the Workplace Safety & Insurance Appeals Tribunal – WSIAT. Where in their website they state no one has the right of appeal and they even write it in such a way to influence people to believe they have no right of anything after a WSIAT decision. Including a right to bring an application for Judicial Review, when they state There is no right of appeal from a decision of the Workplace Safety & Insurance Appeals Tribunal.”



I argue that in many ways, an application to the courts for Judicial Review – writ of certiorari, is in effect an appeal to the courts. In fact, the WSIB and WSIAT lawyers actually made that statement in court. The WSIAT on their webpage goes, so far as to brag and boast, that it is IMPOSSIBLE for an injured worker to get a judicial review of their decision, when the WSIAT arrogantly states that WSIAT’s recognized expertise is a major reason why in its twenty-eight year history WSIAT has only had one decision overturned by the Courts on judicial review.”



First, to clarify you DO have a right to file an application for Judicial Review, even if the law says you do not. This was confirmed in the Supreme Court of Canada’s decision of Canada (Minister of Citizenship and Immigration) v. Vavilov, where at paragraph 24 the Supreme Court stated “judicial review is protected by s. 96 of the Constitution Act, 1867, legislatures cannot shield administrative decision making from curial scrutiny entirely



That said, I will now discuss the options available to an injured worker in Ontario after receiving a WSIAT decision.



First, the injured worker should file a request for a reconsideration of the first WSIAT decision. When you do, and MOST IMPORTANTLY, do not just restate the things you or your representative argued previously before the WSIAT. The key issue with reconsiderations and appeals is that many people miss the important fact that you are arguing why you believe the decision is wrong. Prove this by stating facts, which were missed or misstated. Also reference law, and policy which was overlooked or ignored. Also reference evidence which was missed or not provided. This way you may find you are more successful, but sadly as a Self-represented Litigant – SRL, you will find success very rare.

As, the WSIAT has a hatred towards injured workers who represent themselves!
Sadly, this is something I can easily prove in my own experience – another BLOG!



Then after receiving the reconsideration decision or not, if you decided not to do a reconsideration. Then if you believe the decision(s) are wrong, then you could consider filing an application for Judicial Review. The first issue in preparing your arguments is to determine which standard of review the court should be using. This will help you understand how you will convince the court the decision should be changed.



Here is where I start talking about the Supreme Court of Canada’s latest decision, regarding the standard the court is to use when reviewing administrative decisions (reviewing workers compensation appeals tribunal decisions) in Vavilov.



Prior to the Canada (Minister of Citizenship and Immigration) v. Vavilov 2019 SCC 65 decision, which was just released this past December, I will call this the Vavilov decision, for simplicity. Then prior to the Vavilov decision there was the Dunsmuir v. New Brunswick 2008 SCC 9 decision, again for simplicity I will call this the Dunsmuir decision. Prior to the Dunsmuir decision there was other cases such as Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63 .



So, to explain how the standard of review works with a Judicial Review – certiorari, I am going to discuss the standard prior to the Dunsmuir decision. So, prior to the Dunsmuir decision there were three standards of review set by the Supreme Court of Canada that was used by courts when reviewing decisions of administrative tribunals. Then I will discuss the Dunsmuir decision and finally the Vavilov decision.



 Prior to Dunsmuir Decision

The Supreme Court set three standards, which were Correctness, Unreasonable, and Patently Unreasonable. The basis of deciding which standard the reviewing court would use created much discussion, argument, and wasted resources.

This was only recently, we hope, resolved in the Vavilov decision.



Starting with the correctness standard. This is the least restrictive standard where the court reviews the tribunal’s decision to determine if the decision is right or wrong. If it is wrong, the matter is not referred to the tribunal, instead the court makes its own decision in place of the tribunal’s decision. Prior to the Vavilov decision this would only occur when the standard of correctness was implied by the legislation. For example, if the legislation made mention of a right to Judicial Review or a right to an appeal. T the correctness standard would be used by the reviewing court. If the legislation barred an appeal and a judicial review, then this standard would not be used.

This has been recently changed in the Vavilov decision, which I will discuss later.



The next standard was the reasonableness standard. This is where the reviewing court does not look at whether the decision was right or wrong, but instead whether the decision was made reasonably. This, The Supreme Court justified using by claiming it was to protect the intent of the legislature.



The next standard was patently unreasonable. So, it is when the decision, yes you guess it, may have been wrong, but must be patently unreasonable in order for the court to consider reviewing the tribunal’s decision.



Guess where the review of WSIAT decisions stood in this list? Yes, you got it, patently unreasonable. Many including myself ask why such a high standard of review. Especially when I look at the true purpose of workers compensation system, to financial protect injured worker, but more importantly to financial protect taxpayers, from caring for injured workers.

I have no answer, or explanation as to why the court reasoned this!  



The Dunsmuir decision

Ok so that was the three standards, which were in place until the Dunsmuir decision. This was when the Supreme Court looked at the Judicial Review standard and simply said, hey it is very confusing having three standards of review with two standards of reasonableness. Instead let’s just have one reasonableness standard. So, the Supreme Court folded the two reasonableness standards into one. That being just reasonableness. They left the correctness standard alone. So, after Dunsmuir decision, we were left with two standards of review

Correctness and Reasonableness.   

As I mentioned earlier the standard of correctness was if the decision was right or wrong and the reasonableness standard had a higher threshold of the decisions could be wrong but were not reviewed by the courts as they were reasonable.    



Now, before I move onto the final decision of the Vavilov decision, I thought you might need a laugh! Ok, so even though the Supreme Court of Canada now said the there are only two standards of review in Canada for courts to use.

Guess what the Court of Appeal for Ontario said for judicial review of decisions from the WSIAT?

Yeah that’s nice, but here in Ontario we will stick with the patently unreasonable standard. Unfortunately, I don’t have the decision right now, but I can find it if anyone was seriously interested in it.



The Vavilov decision

Ok, now that I have explained the history and hopefully you are still with me here. The Supreme Court again looked at the standard of review. They still use the two standards of review being reasonableness and correctness standards. They did explain each is to be decided on a case by case basis. They also said that the default standard is reasonableness. So, first I will explain the new correctness standard and hopefully I do so correctly, no pun intended! and you hopefully understand it.



So, a person arguing an application for judicial review wants to try and get the court to review on the correctness standard. This is because the correctness standard has a much lower threshold than that of the reasonableness standard. Being that whether the decision was right or wrong.  

The first consideration is to look at the legislation to determine, if the law provides for a right of appeal and/or an application for Judicial Review. If this is the case, then the correctness standard would be used. Now, at this point this is where the Vavilov decision differs from the Dunsmuir decision. The Supreme Court added that:

respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies.” (para 53)

Now it is easy for one to say oh yeah, my decision meets all three of those. So, I am good, I can do correctness standard. I wish it was that easy! In reality, you have to prove each one and there are different tests in doing so. Like for example, if you are raising a Charter argument. That the decision violated a section of the Charter, then there is a procedure or test for arguing that.

My point is that the Supreme Court’s decision to do this, gives people who are making applications for Judicial Review a bit better chance of success.



Now in addition to adding the added criteria for the correctness standard, the Supreme Court also clearly defined what is the reasonableness standard. That in order for a decision to be reasonable, a decision must be Justified, Intelligible, and transparent. I won’t get too deep into the legal meaning of these words. However, suffice to say if the decision contains “a fundamental gap or reveals that the decision is based on an unreasonable chain of analysis” “or if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise” (para 104), then as the Supreme Court states, the decision would be unreasonable.



Additionally individuals should be aware that in cases where the correctness standard is used, the Supreme Court has made it clear the reviewing court will substitute its decision in place of the tribunal’s decision in order to prevent a back and forth effect between the tribunal and the court. However, in matters involving reasonableness the court would normally refer the matter back to the tribunal with its reasons. The court can, in some cases, make its own decision in place of the tribunal’s decision.



Well, hopefully I have explained the process of Judicial Review, specifically Certiorari correctly and most importantly you understand what I have explained here. I will now provide my thoughts on the whole Judicial Review standard – correctness and reasonableness.



My thoughts on why the reasonableness standard is wrong and illegal.

A wrong decision is not just. This is because it is wrong even it is reasonable or not. Saying a decision is reasonable does not make it right. It still leaves a wrong and ultimately an unjust decision. If the justice system knowingly allows a wrong decision, to stand that is known to be unjust then this would and does bring the administration of justice into disrepute. The justice system allowing wrong decisions to stand, is the same as allowing illegal evidence to be admitted in a criminal trial, which would not be normally admitted. The admission of illegal evidence is unjust and would mean the justice system has fallen into disrepute as stated in s. 24(2) of the Charter. Therefore, in my view, I believe that the Supreme Court in continuing to allow a standard of review that is lower than correctness has allowed the justice system to fall into disrepute. Moreover, the action is in violation of the Rule of Law, is in violation of the principles of Natural Justice, and is in violation of the Constitution.



That said, I want to now discuss the standard for workers compensation appeals, specifically in Ontario. This is where the standard of review has been previously set by the Ontario Court of Appeal as patently unreasonableness. Without repeating what I just mentioned about the use of reasonableness standard and how that that standard should no longer be used. I will argue that a new standard should be employed for workers compensation decisions, which has a lower standard than that of correctness. This is because unlike any other administrative decision process, the workers compensation is one of the few where the outcome bares a direct financial impact on taxpayers in Ontario and Canada. This is because of the following reasons.



First, I submit that workers compensation is privately funded and when it works properly, it does not cost taxpayers. However, when injured workers are denied their legitimate claims to workers compensation benefits it ends up costing taxpayers. This is because injured workers are then forced onto taxpayer funded social programs. Social programs such as, income replacement, housing assistance programs, education assistance programs, health insurance.



I can easily prove that legitimately denied and delayed claims for workers compensation benefits in Ontario, costs Ontario taxpayers approximately $34 million per year. This is because on average each month more than 4,500 injured workers are forced onto taxpayer funded income replacement programs known as Ontario Works and Ontario Disability Support Program. Therefore, on my first point, on its own, one would think that this one proven cost to Ontario taxpayers, should provide more than enough justification for the Supreme Court and lower courts to provide a lower standard than the correctness standard for judicial review of workers compensation tribunal decisions. Ironically, as I said earlier, the Ontario Court of Appeal went the other way, with a very high standard for injured workers to meet for reviewing WSIAT decisions.



Secondly, I argue the intent of the Ontario legislature is contrary to what the court has interpreted. I have argued with several legal scholars including law professors, who I have had the honour of speaking with. I argue to them that in Canada’s justice system, when decision makers are deciding if the evidence meets the facts of the case there are three standards. The first is commonly known in the criminal justice system as beyond a reasonable doubt. Simply, this means that if you have been charged with a criminal offence, then the Crown prosecutor must prove beyond a reasonable doubt, with the evidence, that you committed the offence. This is the highest standard and for obvious reasons to protect the innocent from being wrongly jailed. The next standard is the standard used in most other matters like civil actions, which is balance of probabilities. This simply means for example, in a civil court claim, you would have to prove to the judge on a balance of probabilities that the evidence proves the other party committed a wrong against you. So, the evidence proves that more than 50% you were wronged by the other party, so to speak.



Now in dealing with workers compensation matters, this is where well everyone disagrees with me ! You see, I say that the standard of decision making is NOT balance of probabilities. I believe the standard is lower, which is as stated in law, as benefit of the doubt. This is a standard of equal or less than 50%. The Workplace Safety & Insurance Act states at s. 119(2) “If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.”  This is referred to by the WSIB Policy 11-01-13 as Benefit of the Doubt. Therefore, in understanding the standard one would conclude that the intent of the legislature was not to be more restrictive with workers compensation matters, but less restrictive, as the decision-making standard establishes.



Third, the original purpose to create the workers compensation system in Ontario back in 1914, was first to protect injured workers from the financial hardships of their work injuries. The second and more import reason was that it was realized that if injured workers were not properly cared for, then taxpayers would have to bear the financial burden of caring for injured workers.

Ironically, it seems to me today this has happened!     

   

Therefore, the standard in reviewing decision involving workers compensation matters should be lower than the correctness standard set by the Supreme Court.





Well, I hope that you enjoyed this blog and especially my explanations of the process of Judicial Review and how it directly impacts workers compensation matters.



PLEASE let me know what you think, make a comment, my ego really really really needs it LOL!

No seriously, it does!





This blog is not legal advice, but my personal opinions on my experiences and research I have conducted. It is no substitute for proper legal advice by a lawyer or a paralegal.

Thursday, 2 January 2020

Functional Overlay or Faking!



What is Functional Overlay   

Have you ever seen the term Functional Overlay in your WCB/WSIB/WorkSafe file and wonder what it meant?

Well overtime I wondered as well, and eventually, I learned to perform research in my many years of schooling. I found a shocking discovery that Functional Overlay is code for Malingering. Malingering means simple to exaggerate or fake an injury. What is interesting is that it is diagnosed like a real medical condition, yet according to several scholarly scientific research papers it is not a recognized medical condition by any medical association.

Click here to see the paper which states “Functional overlay is not a recognized psychiatric diagnosis.”

In other words, it is a made-up medical diagnosis to deny legitimate claims for workers compensation benefits, which is based on an allegation the individual is faking. What is even more troubling is that the doctors who make these diagnoses are usually medical doctors and not psychologists or psychiatrists. It is ironic as it is like a person being referred to a foot doctor for an ear problem.

Ironically mine was diagnosed by an orthopedic shoulder surgeon. Dr. Richard Holtby out of Holland Centre of the Sunnybrook Health Sciences located at 43 Wellesley street in Toronto. Interestingly enough, he never even discussed or explained it to me. This is but one of many major problems with Independent Medical Examiners (IMEs). IMEs are doctors paid by private insurance companies and workers compensation boards to provide medical proof an individual is not injured or not as severely injured, when they are. 
In most cases the IME's diagnosis and prognosis are contrary to the family doctor and many many other medical specialists the individual has seen. 
This is such a problem one doctor who was fired on the direction of the WSIB. The Doctor had refused to change her diagnosis to a less severe rating. In response the doctor filed a civil lawsuit against her employer and the WSIB. Click here to read the article. 

In my case, dad the, quack of a doctor,  bothered to talk to me, like a real doctor, he would have learned that my problems were from the extreme heavy and repetitive physical work I performed. You see every day I physically unloaded a 53-foot trailer with product loaded from floor to ceiling, and back to front. I was lifting varying weights from 1lb to 150lbs or more. Over time this takes a huge toll on the body. It is

now more commonly known as a repetitive strain injury. Another connection to look for is when the WCB/WSIB/WorkSafe claims a diagnosis of Degenerative Disc Disease – DDD is used. The WCB/WSIB/WorkSafe will claim it is an age-related condition, when in fact it is work-related condition. Again, scientific medical research confirms the blatant and deliberate misuse of medical information by workers compensation boards to deny legitimate claims for compensations.


The paper uses an example of a nurse performing heavy repetitive physical work and being intentionally and incorrectly diagnosed with age-related DDD. The paper explains that in a normal person one would not see DDD until well into their 70’s, unless they were performign heavy repetivei physcial work - at work.
I was 29 years old when I was diagnosed by the WSIB appeals officer with age-related DDD. Ultimately, this is without question defamation of my character. So, to prove my point I submitted a freedom of information request for the WSIB’s meaning and origins of this diagnostic term they used to claim it is age-related when I know it is not. You see I had to do a freedom of information request as I had previously made a request to the WSIB Business Rules department and also sent a copy to WSIB legal counsel Mr. Belec, in June of 2019. Ironically my request was ignored. Well they can not ignore my request now.

I will update this post when I have more information from my freedom of information request…

Thursday, 21 March 2019


POST TRAMATIC STRESS DISORDER – PTSD IN THE WORKPLACE GETTING REDRESS!

I again want to apologize for not keep up with the blog and the content on the website. I have been crazy busy with school and my two applications to the Supreme Court of Canada to appeal Two Court of Appeal for Ontario Decisions.   



I have pulled myself away for a minute to writ this quick blog to maybe help you think in a slightly different way about PTSD and how to get redress or justice.



I like to describe to people that there are four types of work injuries:



Physical injuries:


First there are what we all commonly known as physical injuries. These can be visible a missing leg or arm or indivisible nerve damage.



Psychological Injuries:

Second there are psychological injuries. These are injuries that happen to our mind.
Note that many times people may suffer a head injury, but one would consider that a physical injury
as it causes physical damage to the brain.    



Sudden Injuries:

Third a subcategory of either one or two above, which is a sudden injury. For example, in the case of a physical injury, you had something fall on you. Or in the case of a psychological injury you had a sudden traumatic event. For example, watching a co-worker die. The sudden injury is somewhat easier to prove as oppose to the next.  



Overtime Injuries:

The fourth is the overtime injury. In the case of physical injuries commonly refer to as a repetitive strain injury – RSI. This is when you suffer a physical injury from performing a repetitive task over time. For example, a wrist and hand injury from repetitive data entry work. The other type of over time injury is now commonly referred to as Post Traumatic Stress Disorder – PTSD. This is when a person is routine exposed to traumatic events or stressful events. For example, a 911 operator, a first responder, an air traffic controller, or a worker being routinely harassed and bullied at work.



Whether you agree with these definitions or not. I think we need to better understand the types of
injuries so we can best find ways to fight for all our benefits as injured workers. Also, we need to know all options available to us a people. For example, recently workplace bullying, which is an overtime psychological injury or commonly known as PTSD, has become a major issue. As previous these workers who were victimized would be just told they are weak. This caused them to be re-victimized, much like the rape victim in the trial when the judge questions her actions that she could have reduced or prevent the rape. Shameful! My point here is that there maybe several options to injured workers who suffer workplace harassment especially when they employer knows of it and takes no remedial action.



The recourse available to a worker who has been harassed and bullied in the workplace has several options and obviously you want to take the best option, so it is always best to discuss all options with your representative.



Option 1 – Apply for WCB Benefits:
You can and most definitely have a right to apply for workers compensation benefits. Afterall, this is an injury, which occurred in the course of employment. This injury also occurred overtime and has
caused damage to your psychological well-being. This will provide you with replacement income and possible retraining options for a different field of work, as well as medical coverage. The issue will be proving that your condition was work related and that you have a psychological injury. This is best done by mental health experts such as a psychologist or psychiatrist.



Option 2 – Human Rights Complaint:

If you wish legal redress in addition to or in place of filing for workers compensation benefits you can file a complaint with the Provincial or Federal Human Rights Tribunal/Commission. If you intend to file a human rights complaint you must first establish whether it is Provincial/Territorial or Federal jurisdiction. For most cases, but not all, banks, railroad, federal government employees, Canada Post workers, and transport are all considered under Federal jurisdiction. You can easily ask the Provincial/Territorial Human Rights Tribunal/Commission to determine if you would file a complaint with them or not. Be careful to note in some cases where you work for an employment agency it is how that agency is categorized and not how the employer client.

In considering a human rights complaint you can also opt for filing a civil suit. Note that you can file one or the other but not both.

Also note that there are time limits to filing a complaint with Human Rights Tribunal/Commission. It
is usually within one year of when you realized the violation occurred or last incident. Many people believe this time limit is absolute. However, if one can prove deception (the company told you that you can not file a complaint) or that you were not mentally capable at the time to file a complaint you may be able to ask to have the time extended.

The benefits of the Tribunal are that they are: less formal than a court; you don’t need a lawyer or paralegal, although it is strongly advisable; and have the tribunal may have no limits for their damage awards, but rarely award high damages.

You can also consider taking legal action against your employer for wrongful dismissal based on constructive dismissal in civil court.



Option 3 – Civil Action:

If you wish legal redress in addition to or in place of filing for workers compensation benefits you can file a civil action against your employer. In this case depending on the amount you wish to claim, will depend on the court you must file in. In many Provinces/territories they have Small Claims Court with limits and anything over that limit must then be done in the higher court (Superior/Supreme/Queens Bench). For example, in Ontario the Small Claims Court limit is presently $25,000, which is separate of court costs and disbursements (Court costs and disbursements is what you paid to your lawyer, paralegal to bring the action to court). However, if you wish to bring a claim in Small Claims Court you can waive anything over the limit, which means you lose anything over the $25,000 limit.

Please realize it is important to win your case. If you lose your case, you will have to pay your lawyer/paralegal and you may also be awarded to pay the other sides court costs. Therefore, you need to make sure you have if possible good quality credible witnesses and if possible good quality evidence. You also must establish that your employer committed a wrong and that the evidence proves this, which is more than just your word. Pretend like everything you say is not believed. Then build a case with physical concrete clear evidence and witnesses and then provide all this to your lawyer/paralegal. Lawyers/paralegals represent you they generally do not build your case for you, you must do that.



I hope I have opened the door for people to better understand their options within the law, as how I see it and of course it is ALWAYS best to seek proper legal advice before deciding anything! It is always good to be aware of your options and don’t be afraid to ask your lawyer/paralegal questions. Please remember this is not legal advice but personal opinions based on my life experiences with my workplace injury.   


Wednesday, 10 January 2018

My Story! Part II - Work Injury


Me working before my
work accident. 
The stuff behind me is
what fell on me!
My Story! Part II - Work Injury:

Please remember, this is a severely watered-down version of my story. I have started to post a detailed version of story on my website. I also included backup documentation as well. However, it is nowhere near finished due to publishing issues. It can be found here www.fightwcb.org/my-story.html

 

So, like all injured workers, I unfortunately suffered a workplace accident and subsequent injuries. However, lucky for me, being in Ontario, Canada, I was fortunate as my workplace accident happened before Jan. 1/98. This is when the new workers compensation law came into effect. This was the Workplace Safety & Insurance Act. Which was through the provincial legislature passing ‘Bill 99’ (UGH!).



To, put it simply, the Ontario workers compensation system went from a system of being ‘investigative’ to a system that is an ‘adversarial system on steroids’! You read it here first - don’t forget it!



What do I mean by this? Simple, before January 1, 1998, injured workers were given ‘speedy’ workers compensation benefits, which was in place of being able to sue their employers. If there were problems or concerns, the WCB would fairly and properly investigate. Injured workers were given the benefit of the doubt. Ironically, this is part of the workers compensation law! Under the post Jan. 1, 1998 system, injured workers were forced to prove beyond any doubt in the mind of the WSIB staff member, that they, the injured worker, deserved the benefits. Most injured workers would agree it went from being protected, to being treated like you were asking for welfare handouts! No disrespect to people on the welfare system, my point is that workers compensation IS DIFFERENT, as it is NOT funded by taxpayers! It, is ironic as a lot of injured workers because of these neoliberalism cuts, or as I like to say neo-Nazism cuts (I am sorry, as I don’t mean to offend victims of the Nazi era, I only wish to
empathize how much they suffered by using it as a frame of reference of suffering). I will add that ‘Lucky or fortunate’ is a weird and perverse way of saying a victim of an accident is lucky, but when the way victims of workplace accidents are treated, nowadays, becomes worse, you start to understand.



Ok, so I was injured in 1997, as I said under the old Ontario workers compensation system, or as the ‘all mighty’ at the WSIB, love to throw in my face, I am “pre-1998”. Like I got away with robbing a bank or something! After my work injury and treatment, I returned to work more times than I can count. Once or twice on my own will, but most of the times through fear of retaliation by the WSIB and my employer.



The employer and the WCB have an unfair advantage over injured workers. I say it is like holding
a gun to a person’s head and then asking that person to do something unsafe. Then being shocked, when that person raises issue over how dangerous what you are asking them to!



During my time with my employer and the WSIB, I would suffer numerous additional injuries, even during their so called “safe suitable return to work program”. What a laugh! Translation, it is a program to save WSIB(WCBs) and employers money that is it! It is a program, in my opinion that is a complete and utter violation of every Human Rights code, as well as the Charter of Rights & Freedoms in Canada!



The best part was when I returned to work and after suffering additional injuries, the WSIB said I was faking and it was all in my head. They even had a ‘so-called doctor’ to make this claim. He said get this… after me suffering from the injuries for more than a year and a half after my accident, that I “would be fully recovered in six to eight weeks” and with no formal treatment or medication. This so-called doctor’s report, even now reminds of those people in the southern states. ‘Faith healers’, who would slap people in the forehead and say, “you are healed, by the grace of god!” That is what
I felt like what happened and still do, every time I read this doctor’s report! I did a little research on this doctor. Surprisingly, I found he was an avid supporter of the WSIB/WCBs and their ways. He would be part of medical research, which would increase the mobility of an injured worker. This was at no matter the cost and suffering to the injured worker. So, if there was great risk, of life or more severe permanent pain, the medical procedure or treatment would be forced on the injured worker. This was just to increase the injured worker’s mobility, even a little. This goal, which was to save the WSIB/WCBs money in permanent injury cost awards.



I question the ethical and moral actions of these so-called doctors and scientists. I also raise a greater concern, that if the WSIB/WCBs, who are a body representing government, forces a person to undergo a medical treatment/procedure, that may not be in their best interests, is this not a violation of the Declaration of Human Rights enacted by the United Nations – Only time will tell….



Sorry I had another ADD moment again! I did recently file a complaint against this doctor, with the College of Physicians and Surgeons of Ontario. I filed the complaint not for financial reward, but for justice for myself and for other injured workers. To also attempt to bring back credibility to the medical profession. A profession, which has been severely damaged in the eyes of injured workers. Surprisingly, the complaint against the doctor, is going forward!



This will be the topic of another blog, which will be how to deal with WSIB/WCB doctors during and after examinations, as well as the use of what the Ontario Network of Injured Workers Groups - ONIWG calls ‘papers doctors’ in their campaign #WorkersCompIsARight. I will show you how to fight these doctors using the College of Physicians and Surgeons complaint process!



My Established Permanent Injury:

So, after many failed return to works, and several work accidents and injuries, the WSIB, after more than three years after my work accident, finally agreed I suffered a permanent injury, but only to my lower back. I explain this in a minute…

So, just a year prior to this, I love this part, I found in a WSIB/WCB board memo that was written by a WSIB/WCB doctor, which he states MMR reach, but no PI.



Not So Interesting side note:

Board memos are what is placed in your WSIB/WCB claim file. This is what they say or write about you, after they talk to you. Therefore, you have an extremely difficult time fighting them with appeal decisions. The Appeals officer and the Tribunal panel all have access to these memos, unfortunately you don’t get access to them, until it is usually much too late to correct any inconsistencies. I mean you have a right to access them, but who would access their file every time they communicated with the WCB. To ensure to ensure the WSIB/WCB documented the right thing. Therefore, I tell injured workers after a phone call, or verbal communication always follow it up with a letter, which will trump these memos! Or better yet only communicate by e-mail (yes other WCBs allow use of e-mail by injured workers, but not Ontario) So, we in Ontario are left to using snail mail - a letter. I complained to the WSIB, stating it costs me a dollar every time I send a letter now, to communicate with them. Why should I or any injured worker has to pay this, or pay for a fax line or service every time I wish to communicate with them?



Sorry, I got side tracked yet again, or side noted 😊! So, this WSIB/WCB doctor (yes, a paper doctor) said in this memo, regarding my injury that “MMR reached, No PI”. It was WSIB/WCB memo #50, which I can remember like yesterday. Ok, are you a little confused? No problem, let me explain and translate the WSIB/WCBs short-forms they use, because they write like they are somewhat lazy, or two-year olds!



First, the doctor said maximum medical recovery reached, no permanent impairment. Now for those who do not know the WSIB/WCBs determines when a person suffers a permanent impairment – PI. This is when the injured worker’s injury is not going to get any better. This is referred to as Maximum Medical Recovery. The alternative, in case you were wondering, is a full recovery. This is not what is stated here. Ironically, in the WSIB/WCB law it defines a “…permanent impairment as when MMR is reached. To further add to this part of the story. MMR is reached according to WSIB/WCB law/policy, when the usual healing times has been exceeded. In the case of my injury – a soft tissue injury they said, it was three months. This memo was written almost three years after the injury. So, one wonders what is really going on at the WSIB/WCB?

Secondly, this doctor never examined me, which is a great concern for most patients of doctors. This concern is where doctors who make comments without seeing their patients first. My point here, is that this is but one example of many of the WSIB/WCB & the WSIAT/WCT’s intentional deceptive behaviors in my file and likely in many others.

Another issue was that after the WSIB/WCB accepted my entire injury for more than three years, they just suddenly changed my injury from my ‘entire back, neck, and head’ to just my lower back. This too was in contravention of the WSIB/WCB law.



Interesting Side Note:

In making the determination that I did suffer a permanent injury, after more than three years after my accident, the WSIB says hey you not going to be able to drive a truck anymore, with a bad back.  

What is interesting about this is that I have talked to numerous injured workers including Dave Curtis who have sworn to me, and I believe them. They stated that the WSIB/WCB trained them to be truck drivers. The WSIB/WCB informed them that the job was suitable for a person with a bad back! Of course, I laughed when I heard that – yes, I do a lot of laughing, but I think you are starting to understand why. The WSIB/WCB do whatever they want with no accountability!         



Can’t/Can Take Transit Bus:

In the Spring of 2000, the WSIB/WCB decision maker stated in a memo that a previous return to work program my employer offered, and I did, was unsuitable for me. He explained this was due to the hour and half public transit bus ride, which I had to take to work. He stated this was due to my permanent physical limitations.

Ironically, this decision maker’s attitude would not only change but turn on me – in the worst way!

Then in the fall of 2000, when I had been attending the WSIB/WCB sponsored retraining program. The WSIB/WCB call it an LMR, not sure what they call it now. They keep changing names of stuff!

Well, my car broke down. I contacted the WSIB/WCB as I was unsure, if I would be able to afford a replacement car. You see my personal credit was destroyed with amount and length of the WSIB delays, I am sure you know exactly what I mean! So, I contacted the WSIB decision maker and was just advising him. This was so he was aware that I may have a problem as I may have to take the bus and it may be a problem for me. You see, I had checked what buses I would need to take to this program, and unlike during the employer modified work program, where it was just two buses, at an hour and a half. To travel to this WSIB/WCB program, I learned would be three buses and over an hour and forty-five minutes. When I informed the WSIB/WCB decision maker, he advised me to get a letter from my family doctor. However, before I got the letter from my family doctor, he had written me. In his letter, he stated, and I quote I “Suffer from self-perceived limitations”. This was not only, personally offensive, but it was without question slanderous and libel. My employer did on several occasions use this statement against me in the appeals process and gained from it, as a result. The best part of the whole situation, was that I was only advising him. I never stated to him I was taking the long bus ride, only, that I was concerned as I may have to. In fact, I was able to get a replacement car and it was not an issue, but the damage to my character was clearly done!       



My next Blog will be about my retraining program, my return to work, which was unsuitable due to my preexisting non-work-related disability and the events leading up to the WSIB and WSIAT appeals…….


In the Course of…

In the Course of… Ok I am struggling to understand something in the entitlement of personal injuries, as a result of a workplace a...