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Community Of Injured Workers In Canada Visit Their Site:

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Posted 01 December 2004 - 10:05 PM

Community of Injured Workers in Canada

Here is a very informative and friendly Canadian Injured Worker online support forum,
recommend you view their site - they have much similar issues as we face.

Click on the picture to open the website:
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#2 User is offline   fairgo 

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Posted 02 December 2004 - 10:29 AM

I can recommend this site... amazing how similar the issues are.
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#3 User is offline   Gary Webster 

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Posted 20 December 2004 - 04:55 AM

Hi Everybody I have been browsing through your site here Quite interesting, and very similar to the canadian system I have been dealing with.

It certainly appears CMs are the same every where, though you appear to have a leg up on us regarding FCE's as they are given much more weight here, and when refusing to perform tasks in one there is more risk your benefits will be cut off for noncompliance.

Excellent Site Talk to you all again Gary
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Posted 07 January 2005 - 09:29 AM

these threads are interesting, note how similar issues are:

Symptoms of Victimization Paranoia VS. Hypervigilence
http://wcbcanada.com/modules/WCB-BB/viewto...1076&highlight=



DOES THE UNION Staff HAVE THE PROTECTION OF THE WCB ACT TOO
http://wcbcanada.com/modules/WCB-BB/viewto...1077&highlight=

http://members.fortu...ty.com/wcbwcat/
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#5 Guest_IDB_*

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Posted 08 January 2005 - 10:38 PM

found this from the canadian support site too, make for interesting reading

http://www.caw.ca/wh...ewmillenium.asp

The New Millennium: Looking Backward, Looking Forward

WORKERS' COMPENSATION IN CANADA

The New Millennium: Looking Backward, Looking Forward



What’s the Problem?

“Too many Canadian workers are being hurt, suffering from occupational diseases and are even sometimes dying as a result of our work. We need to put more effort into preventing these harmful consequences of work. Instead, we are devoting more and more effort to fighting about whether and how much disabled workers are paid and by whom. This pamphlet describes why and how workers’ compensation was set up and what some of the current issues are throughout the country. It also tells us what we can do in the short run to protect our members’ interests and introduces what we need to do to change the system in the long run, establish a system of universal disability insurance. This pamphlet is meant to be read with the companion pamphlet, Universal Disability Insurance Plan

.

Buzz Hargrove, President

Workers’ Compensation - Why?

The workers’ compensation system began in Germany under Otto von Bismarck during the last century. Bismarck was concerned about worker upheaval and the growing trade union movement. He decided that introducing social programs such as workers’ compensation and a pension system would help to meet people’s needs and stem dissent.

In Canada during the last century, child labour was still permitted. The dangerous conditions in factories meant children were often maimed or killed. Their families’ only recourse was to sue the employer in the courts. While employers frequently used the defence of “contributory negligence” against adult injured workers, it was much more difficult to claim that a child should have been aware of all of the risks of industry. In the beginning of the century, juries began to award large damages against employers who had killed or seriously harmed workers. Although these successful lawsuits were relatively infrequent, employers in Canadian manufacturing realized it could lead to financial ruin. By 1913 they decided to support a system of workers’ compensation.

The trade union movement lobbied long and hard for better working conditions including safer machinery and shorter work days. As well, they argued for a system of workers’ compensation so workers injured would have an income when they were unable to work, as well as receiving medical treatment and a decent burial for those workers who died on the job. They knew that the lawsuit system was a lottery in which most workers lost.

Meredith Royal Commission

The Ontario government appointed Ontario Chief Justice Meredith head of the first Canadian Royal Commission into Workers’ Compensation. Before his appointment as a judge, Meredith had been head of the Conservative Opposition in the Legislature.

Meredith recommended a system based on the following principles:

Security of Payment - The worker was to be guaranteed compensation for as long as earnings were impaired.

No Fault System - It would not be necessary to prove negligence in order to receive benefits. Contributory negligence would not prevent workers from receiving benefits.

“In these days of social and industrial unrest it is, in my judgment, of the gravest importance to the community that every proved injustice to any section of class resulting from bad or unfair laws should be promptly removed by the enactment of remedial legislation and I do not doubt that the country whose Legislature is quick to discern and prompt to remove injustice will enjoy, and that deservedly, the blessing of industrial peace and freedom from social unrest. Half measures which mitigate but do not remove injustice are, in my judgment, to be avoided. That the existing law inflicts injustice on the workingman (sic) is admitted by all. From that injustice he (sic) has long suffered, and it would, in my judgment, be the gravest mistake if questions as to the scope and character of the proposed remedial legislation were to be determined, not be a consideration of what is just to the workingman, but of what is the least he can be put off with; or if the Legislature were to be deterred from passing a law designed to do full justice owing to groundless fears that disaster to the industries of the Province would follow from the enactment of it.”

The Hon. Sir William Meredith, Commissioner, 1913

Employer Funded Collective Liability - The vast majority of employers would have to contribute to a fund from which benefits would be paid. This protected small firms from the potentially high cost of serious accidents. Employers were grouped into assessment rate groups so employers with similar risks paid the same assessment rate which would be higher than those in industries which were less hazardous.

Administration by an Independent Agency - This was the beginning of the Workers’ Compensation Boards. Workers were to be spared the expense and delay of going to court.

Injured Workers Could Not Sue Their Employers - In exchange for the establishment of workers’ compensation, workers gave up their right to sue their employers. This is often referred to as the historic compromise. This means that workers’ compensation is not welfare; workers’ compensation is a right.

Meredith’s recommendations became law in Ontario in 1914 and other provinces followed suit and established the same system.

“...Industry and not soup kitchens must look after the helpless humans sacrificed in the service of industry. To the yawning criticism that workers surrounded by such pleasant options (WCB benefits) will not maintain their usual safeguards, the retort of experience is that no worker in his sane senses deliberately invites a painful, perhaps fatal bodily hurt...”

Maclean’s Magazine, April 1, 1915

Continuous Improvement

From 1914 to the late 1980's, workers compensation laws and practices continued to improve in each Canadian province. Waiting periods were eliminated. Benefits levels were increased. More occupational diseases were recognized. Inflation indexing of pensions was introduced. Independent appeal systems were established. Formerly secret WCB policies and decisions were published.

All of these improvements came about because we fought for them. Widows camped out on the steps of provincial legislatures; injured workers groups demonstrated repeatedly; newspapers, radio and television carried stories about injustice to workers with disabilities; and unions lobbied for improved benefits. These efforts resulted in positive improvements to the workers’ compensation system.

The 1990's - Everything was at Risk

During the 1990's, however, for the first time in Canadian history, the workers’ compensation system came under a dramatic attack. Why did this happen? What were the roots of the attack?

The Corporate Agenda

The international corporate agenda of privatization, deregulation and free trade has had far reaching effects in Canada. Our social institutions were under attack like never before.

Workers’ compensation is no different. Employers tried to reduce their costs and erode a system Canadians have had as a right for ninety years. Remember, the historic compromise required employers to pay all of the costs for workers’ compensation while workers gave up the right to sue them. The employers’ attack on workers’ compensation took place in the context of free trade with the attempt to harmonize downwards to the lower benefit levels of the privatized U.S. system.

Debts, Deficits, and Unfunded Liabilities

Corporate Lies

Corporations and right wing governments have argued that governments’ deficits and debts are a problem. And they argued in order to reduce debts and deficits Canadians must cut their social safety net. Slashing government spending in critical areas like health care and education together with erosions in our social programs like Canada Pension and Unemployment Insurance were all claimed to be necessary to reduce government deficits. The CAW and other progressive forces in our society argue that high interest rates, unemployment, and inadequate corporate taxation were the reasons for deficits and debts. Slashing social programs only makes people poorer with less money to spend in our society. All the while the rich get richer. Bank profits are at record highs while several years ago General Motors reported the highest corporate profit ever in Canadian history. In fact, GM’s profits were so high in Canada they stopped reporting them altogether and now lump them in with their U.S. profits, as do Ford and DaimlerChrysler.

Debts and Deficits

A government deficit means the government has taken in less money than it has spent over a period of time (usually a year). A government debt is the deficits built up over time. Workers’ Compensation Boards (WCBs) have no debts. Some of them do, however, have unfunded liabilities. What is an unfunded liability?

We’ll use the term WCB in this booklet even though some of the Boards have changed their name.

Unfunded Liability

According to Workers’ Compensation Acts, the WCBs must set aside all of the money to pay for future pension costs (the future liability) of disabled workers’ claims in the year they occur (or when the pension is calculated). If they fail to set aside all the money required for all such claims the WCB is said to have an unfunded liability. If they set aside too much money, the WCB is said to have a surplus. If the right amount of money is set aside, the WCB is said to be fully funded.

If assessments rates are set high enough, there is no unfunded liability or, at worst, a temporary small unfunded liability. Some Boards, however have had their assessment rates set too low for years. Employers have successfully lobbied governments and WCBs to keep their assessment rates low. They have been most successful in Ontario and Quebec. In these two provinces, the unfunded liability is quite large. In Ontario, for example, the unfunded liability became about $11 billion in the late 1990s. It sounds like a lot of money until you realize that at that time the Ontario WCB had $6.8 billion in the bank and in investments.

The Ontario WCB was then about 37% fully funded. There were hundreds of thousands of employers in the province. Ontario business was never on the verge of bankruptcy, rather, it was making more money than ever before in Canadian history.

It’s a bit like having a house with a mortgage. You have a healthy income with no possibility of a layoff, you have a lot of equity in your house, and you are required to make mortgage payments in the future. You wouldn’t say you were in crisis; you would say you were fairly well off financially and that you had a nice house.

The reason the Ontario, Quebec, and several others WCBs are not 100% fully funded is because in the past employer assessment rates were set too low. At times the rate has been almost a $1 per $100 of payroll below the rate it should have been. This was almost 50% lower than it should have been.

Should we be worried about the unfunded liability? Only in very small jurisdictions such as the Yukon and the Northwest Territories and Nanavut do we need to worry about the WCB being fully funded. Because of the territories’ small financial base even one large employer closing down can have a dramatic effect on WCB finances. They need to be fully funded, and they are.

Larger WCBs, however, are by their nature relatively wealthy institutions. They have lots of collective capital to meet the needs of disabled workers. Even if they are not fully funded, injured workers’ pension cheques won’t bounce. In order to retire the unfunded liabilities, employer assessment rates must increase. The vocal employer lobby, however, would rather see workers’ benefits decrease than employer assessments increase.

Employers are using government deficits and debts to try to dismantle social programs. They are using the unfunded liabilities to try to erode workers’ compensation. Remember, employers are the only contributors to workers’ compensation. Employers directly profit from every penny not paid into workers’ compensation. And the WCBs themselves have not one penny of debt or deficit, only, for some Boards, a future liability.

The Race to the Bottom

Beginning in the mid-80s, fuelled by employers’ public hysteria over the unfunded liabilities, various provincial governments amended their Workers’ Compensation Acts to reduce benefit levels and entitlement. Benefits used to be based on 75% of gross pay. Since WCB benefits are not taxable, this gave workers full take home pay. Provinces began reducing this level to 90% so that all injured workers suffered income loss. At present (2001), only B.C. and the Yukon have maintained 75% of gross pay as the benefit level.

In 1992, Manitoba was the first province in the race to the bottom. Benefit levels were reduced to 80% of take home pay after 24 weeks. As well, top up agreements negotiated by unions to compel employers to make up the difference were effectively prohibited. Manitoba also made chronic stress claims illegal. Harmonization with private sickness and accident plans also began in Manitoba with these lower benefit levels and with the concept of different short term (90% or net earnings or take home pay) and long term (80% of net) benefit levels introduced for the first time in Canada.

Atlantic Canada followed suit with Newfoundland and New Brunswick reducing benefits and entitlement. Newfoundland began paying 75% of net earnings for the first 39 weeks then 80% thereafter with New Brunswick beginning to pay 80% of net for the first 39 weeks, 85% thereafter. New Brunswick introduced a three day waiting period for benefits which both reduced WCB costs and induced workers to continue to work while injured rather than losing three days pay. As well, it continued the harmonization with group sick plans which usually have waiting periods. By 1996, Nova Scotia and Prince Edward Island joined the race to the bottom with benefit levels reduced to levels similar to the rest of Atlantic Canada (Nova Scotia at 75% of net for the first 26 weeks, 85% thereafter and PEI at 80% of net for the first 39 weeks, 85% thereafter). Nova Scotia introduced a two day waiting period for benefits.

As a result of such significant slashing of benefits and entitlement, the WCBs unfunded liabilities began to be eroded and in some cases the Boards are now in surplus. Some of the cutbacks have been partially restored.

Ontario began to erode indexing of benefits under the NDP in 1995 and this has been continued under the Harris government. The Harris government proposed to gut benefit levels in an even more profound way than Manitoba or Atlantic Canada. Bizarre ideas such as allowing the employer to pay (or not, as the case may be, of course) for the first four to six weeks of disability instead of the WCB were floated in the Report by Cam Jackson (Minister Responsible for Workers’ Compensation). Employers and the private insurance industry had exclusive input into the report. The erosions to Workers’ Compensation in Bill 99 reduced benefit levels to 85% and effectively eliminated the vocational rehabilitation responsibilities of the Board (now called the Workplace Safety and Insurance Board).

Experience Rating

What has particularly fuelled the controversies around the WCB? Why are our CAW WCB activists busy like never before?

There is no question more workers are getting hurt today. As a result of speed up and work intensification, repetitive strain injuries are on the increase. And employers are fighting more and more WCB claims - Why?

The reason is a new system of assessments call experience rating. There are various abbreviations for experience rating systems such as NEER and CAD-7 in Ontario and ERA in B.C. All Boards are now using experience rating.

Experience rating is the system of charging the individual employer an additional assessment or giving the employer a rebate depending on the past claims costs of the employer. It works like this. Let’s say an employer was in an assessment rate group of 2.5% ( $2.50 per $100 of payroll) but had a past claims experience which greatly exceeded the average for the group. The WCB would charge the employer an additional assessment (surcharge) of perhaps (depending on the province) an additional 50% over what the employer would otherwise pay. If an employer is successfully in dramatically reducing costs, the employer can expect a hefty rebate.

Employers like to claim that experience rating generates better health and safety but in fact they learn very quickly that vigorous claims control activities have a much faster payout in reduced WCB assessments.

Experience rated employers:

* Try to persuade workers not to report WCB claims.

* Try to persuade workers off on a WCB claim to come back to work early.

* Try to get workers to see company doctors who will use information gathered at the examination against the worker’s claim.

* Phone workers’ doctors to try to persuade them the injury was not work related or to try to get them to release the worker to return to work early.

* Phone or write the WCB to try to persuade them not to accept the worker’s claim.

* Appeal workers’ claims which have been accepted by the WCB.

* Appear at appeal hearings where workers are trying to have a decision overturned, and argue against the worker.

* Employ full time employer representatives as well as hiring consultants and lawyers to engage in claims control.

Since a young worker 100% disabled for life might require the WCB to set aside a capitalized reserve of about $400,000 (in turn charged to the employer account), you can see that successfully fighting even one serious injury claim leads to significant cost savings for the individual employer.

Experience rating has made the workers’ compensation system much more adversarial than before. It has created an employer army of WCB consultants with a belligerent attitude on individual claims acting as a well paid lobby group to erode the system as a whole.

Why did employers lobby so hard for experience rating? To save them money. They claim experience rating creates a fairer system for employers. Since all employers in an assessment rate group used to pay the same assessment regardless of whether they had a lot of claims or few, they claimed that “good” employers were subsidizing “bad” employers. They claimed that better health and safety would result from experience rating. Employers quickly learned, however, that vigorous efforts in claims control had a much faster payoff than prevention activities. As a result of many individual battles, experience rating has had a collective effect, a downward effect on the system as a whole. When workers’ claims are disallowed or they lose appeals, and they see others rejected, workers are often discouraged from making a claim in the first place.

Our union rejects experience rating as a system that promotes an adversarial approach to claims adjudication. We believe in financial penalties to employers who have unsafe or unhealthy workplaces. These financial penalties, however, should be applied when health and safety regulations are violated to prevent injuries and diseases from occurring in the first place.

What’s Wrong with Private Insurance?

As we know in dealing with our group insurance S&A (sickness and accident) plans at work, a private disability insurance system is a secret system. In nearly every case the union and individual workers have no right to see the details of the disability insurance plan. Unlike the public workers’ compensation system with access to all WCB policies, we have only a short description of the S&A plan. The private S&A plan is negotiated between the employer and the insurance company. We have little input except for that we can bargain in our contracts. Our right of appeal under workers’ compensation is guaranteed and is free. There is no equivalent right to appeal to an impartial body a decision made by a private insurance company. Some employers shop around for the lowest bidder. Low ball bids from insurance companies usually result in claims disallowals and being kicked off benefits prematurely. Through the private insurance company directly or by processing your claim form, your employer often has access to private medical information about you.

By looking at the U.S. system we can see how workers suffer as a result of privatized workers’ compensation. In order to appeal claims disallowals they must go to the courts. Lawyers are costly. Delays are lengthy. Since coverage is provided by a variety of insurance companies all of which are set up to make a profit, the administrative costs are more expensive than the Canadian system. Medical costs as well are more costly in the United States. Since the overall system is more costly, even though employer premiums are higher in the U.S., workers get less - dramatically less. Benefit levels are as little as half Canadian benefit levels, even compared to the stingiest Canadian province. Benefit levels terminate after a number of years (often seven) even if you are still disabled. Employer costs in the U.S. for a much lower system of benefits are roughly double those in Canada (eg. auto parts rates in Ontario have been 4.56% while rates in Minnesota were 9.07% in the same year).

Who Wants Private Workers’ Compensation Insurance?

It isn’t hard to figure out that it is primarily the private insurance industry. The largest workers’ compensation insurance carrier in the U.S., Liberty Mutual, set up shop in Canada in a big way, and hoped to take over workers’ compensation. In a controversial deal, Liberty International (their Canada subsidiary), took over the formerly nonprofit extended health benefits carrier, Ontario Blue Cross. Liberty representatives travelled throughout Canada lobbying for privatization, producing a five volume document arguing for private insurance. They purchased more than twenty rehabilitation clinics in Ontario participating in privatized WCB rehab activities.

Union Fight Back

In order to fight the employer agenda, the union movement must fight back.

1. In the workplace, we must explain to our membership what our employer is trying to do. We must ensure everyone reports injuries and does not allow the employer to persuade them to stay at work when they should not or go on the sick plan instead of WCB. We must educate ourselves so that we know how to handle WCB appeals as effectively as possible.
1. In the community, we must alert people to what is going on. We need to speak out at public meetings, write articles to the newspaper, hold demonstrations, etc.
1. We need to remember that many people within the WCBs are very threatened by the employer agenda, particularly when it comes to privatization. We need to ensure we work closely with the union that represents the WCB employees. We need to work closely with any labour members of the Board of Directors of the WCBs. We need to ensure we have good sources of inside information so that we can fight proposals for cutbacks. We need to write letters, have meetings, and ensure that we have as loud a voice as the employers in lobbying the WCB itself.
1. We need to meet with the cabinet minister responsible for workers’ compensation (in most provinces the Minister of Labour) and express our concerns. We need to write letters and send petitions. We need to meet with ministers of social programs so that they will understand how many more people will be on the welfare rolls if employers can evade their responsibilities to provide WCB benefits. We especially need to lobby our provincial MLAs or MPPs. Many MLA and MPP constituency offices spend a large amount of time helping constituents with WCB problems. We need to explain to them how this duty becomes greater if cutbacks are made. We need to lobby for the restoration of benefits that were cut back during the 1990s. We need to do more than meet politely with them. We need to get together all the people we have helped with WCB problems over the years and demonstrate outside MLAs’ and MPPs’ constituency offices as well as outside provincial legislatures and the WCBs.
1. We need to meet with the cabinet minister responsible for workers’ compensation (in most provinces the Minister of Labour) and express our concerns. We need to write letters and send petitions. We need to meet with ministers of social programs so that they will understand how many more people will be on the welfare rolls if employers can evade their responsibilities to provide WCB benefits. We especially need to lobby our provincial MLAs or MPPs. Many MLA and MPP constituency offices spend a large amount of time helping constituents with WCB problems. We need to explain to them how this duty becomes greater if cutbacks are made. We need to lobby for the restoration of benefits that were cut back during the 1990s. We need to do more than meet politely with them. We need to get together all the people we have helped with WCB problems over the years and demonstrate outside MLAs’ and MPPs’ constituency offices as well as outside provincial legislatures and the WCBs.
1. We need to learn how to use the media. Learn how to write a news release and where to send it. We need to develop ongoing relationships with sympathetic reporters in the newspapers, radio and in television. Remember reporters can’t always run every story but that if you’ve kept them filled in over time, they will run with a story when it is newsworthy. Be persistent but don’t be a pest.
1. We need to join with the rest of the labour movement and with injured workers’ groups in the fight back campaign against cuts to workers’ compensation and for the restoration of benefits cut back during the 1990s. Social justice groups work on many of the same kinds of issues. We need to ensure that we work closely with them so that they understand the importance of the workers’ compensation system and how gutting the WCBs fits in with the corporate agenda.
Alternative Needed

A universal disability system would have the following characteristics:

* It would compensate people for disablement or premature death regardless of the cause of their death or disability.

* It would provide an earnings related income replacement paralleling the benefit levels provided under the workers’ compensation system but would provide benefits to people without regard to their occupational status.

* Coverage would be compulsory.

* The plan would be administered by an agency similar in nature to the Workers’ Compensation Board.

For more information about a universal disability insurance plan, see the CAW companion pamphlet, Universal Disability Insurance Plan.

“We have so many different systems of compensating people who get hurt or sick - workers’ compensation, sickness and accident plans, EI sickness benefits, CPP disability benefits, etc. We spend too much time and effort arguing over what the cause of the disability is so we can determine which plan should pay. Workers’ compensation, like other existing disability compensation systems, fundamentally makes no sense. At the end of the day all the injured worker wants is prompt, automatic benefits to provide income continuity and medical and vocational rehabilitation. We could meet this need much better if we had a universal disability insurance system.”

Jim O’Neil, Secretary-Treasurer

CAW Health & Safety Department
205 Placer Court
Toronto ON M2H 3H9
Ph: (416) 495-6558 Fax: (416) 495-3785
1-800-268-5763
email: [email protected]

http://www.caw.ca/wh...ewmillenium.asp
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#6 User is offline   doppelganger 

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Posted 08 January 2005 - 11:32 PM

very good article. can see that the ACC is in a healthy finicial position and is always looking at cutting the entitlements claiming that they are costing too much.

IMHO i see tat privatisation costs more and this is a good example when comparing candia with USA.

Thanks for our Candian freinda for finding such an article.
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#7 User is offline   MeredithPrinciple 

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Posted 24 November 2006 - 05:18 AM

Hello ACC members! I'd like to update you on what is happening in Canada. We now have a new Canadian Injured Workers Society at http://www.ciws.ca Canadian Injured Workers Society

Please come for a visit.

There is an interesting series of articles being written at the Edmonton Sun, a newspaper in the province of Alberta in Canada. The reporter is doing an in-depth report exposing illegal activities being perpetrated by the Alberta WCB and exposing the abuse of injured workers in Alberta (the richest province in Canada with all its oil wealth). These articles are a scathing expose of the horrors occurring at the Alberta Workers Compensation Board.

All the articles are linked from the CIWS site at;
http://www.ciws.ca/workers_compensation_re...onton_sun_loome

We've been quite busy here in Canada and so I haven't visited the ACC forum lately. Good luck to you all.
:)
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#8 User is offline   hukildaspida 

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Posted 06 April 2011 - 11:59 PM

View PostMeredithPrinciple, on 24 November 2006 - 05:18 AM, said:

Hello ACC members! I'd like to update you on what is happening in Canada. We now have a new Canadian Injured Workers Society at http://www.ciws.ca Canadian Injured Workers Society

Please come for a visit.

There is an interesting series of articles being written at the Edmonton Sun, a newspaper in the province of Alberta in Canada. The reporter is doing an in-depth report exposing illegal activities being perpetrated by the Alberta WCB and exposing the abuse of injured workers in Alberta (the richest province in Canada with all its oil wealth). These articles are a scathing expose of the horrors occurring at the Alberta Workers Compensation Board.

All the articles are linked from the CIWS site at;
http://www.ciws.ca/workers_compensation_re...onton_sun_loome

We've been quite busy here in Canada and so I haven't visited the ACC forum lately. Good luck to you all.
:)


Valerie Mary JAMIESON would know all about Canadian Injured Workers Rights if that is why she went there for a very expensive trip at http://www.acc.co.nz/ Levypayers expense in the 1990's.

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#9 User is offline   doppelganger 

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Posted 07 April 2011 - 12:45 PM

this is a good site with a welth of information about prativces and policies.

Read this court caseshowing how injured persons are though of by Independent medical advisors.

Quote

On appeal from the judgment of Justice Paul U. Rivard of the Superior Court of Justice dated March 2, 2004.

GOUDGE J.A.:
[1] On November 10 1998, the Canadian Broadcasting Corporation broadcast a 20-minute segment of its program The Fifth Estate entitled “Prove It If You Can”. By telling the stories of three people who suffered serious injuries in car accidents, and their difficulties with their insurers, the CBC described how insurance companies can treat accident victims unfairly.

[2] One of the three was Janet Hough. While the focus of the program was the insurance industry, part of her story of unfair treatment was that her insurer sent her to the medical assessment firm it used, which reported that she was not disabled. The insurer then stopped her accident benefits, despite medical reports from her treating physicians that supported her entitlement.

[3] AssessMed, the medical assessment firm, Jack Richman, its chief medical officer, and Hemendra Shah, the psychologist who did the report for AssessMed, sued for defamation.

[4] After a 76-day trial, Rivard J., sitting alone, dismissed the action, finding that the defence of fair comment had been made out.

[5] This is the appeal from that judgment. The appellants make two major attacks on it: first, that the trial judge erred in unduly narrowing the defamatory meaning of the broadcast; and second that the trial judge erred in a number of respects in applying the defence of fair comment. For the reasons that follow, I conclude that both attacks fail and the appeal must be dismissed.

THE TRIAL JUDGMENT
[6] The trial judge began his reasons with a careful review of the evidence. He described the genesis of the idea for the program and the subsequent research for it done by the CBC, including the interviews that were done with a number of individuals familiar with most aspects of the business of insuring accident victims. He reviewed the growth of AssessMed into a substantial medical assessment firm providing opinions mainly for insurers and the role Dr. Shah performed for them.

[7] He then turned to the assessment of Janet Hough done by Dr. Shah. He found that Dr. Shah used well validated tests and followed accepted procedures, but may have fallen into error in interpreting the test results and in failing to consider other important evidence. He concluded:

[70] Dr. Shah’s approach was to look to test results, establish a hypothesis and proceed to find evidence to support that hypothesis. This becomes obvious when one reviews those portions of the reports he quoted from his assessment. The selective approach he maintained can be viewed as consistent with confirmatory bias.

[71] I am satisfied that, upon a review of all the medical and neuropsychological information available to Dr. Shah at the time he completed his assessment of Janet Hough, on the basis of the medical and psychiatric evidence which became available after this report was prepared, in light of the efforts made by Ms. Hough to return to her teaching and Ph.D. thesis, one could conclude that Dr. Shah’s assessment was in error.

[72] The general philosophy of AssessMed, the manner in which Dr. Shah crafted his report, and the conclusions he expressed can also lead to a reasonable conclusion that his report was biased.

[8] The trial judge then reviewed in detail the content of the program, particularly the part that dealt with Janet Hough’s case. While Dr. Shah declined to be interviewed at all, the program included an interview with Dr. Richman, although he declined to talk about the particular case. In speaking generally about his business, Dr. Richman indicated his view that many of the claimants they see honestly believe they are disabled but are not. He was interviewed along with a fellow executive of the Canadian Society of Medical Evaluations, Dr. Ameis. Dr. Ameis acknowledged that some insurers treat some claimants very badly but made clear that their company tried to be as objective and impartial as possible.

[9] However the program then quoted from an article by Dr. Richman saying that in 3,000 evaluations by his company, only 3% needed long-term disability benefits. The trial judge reviewed the article and concluded:

[78] This article manifested an intellectual tendency on the part of Dr. Richman to treat claimants with suspicion and to question the validity of the opinions expressed by their treating health care workers. It was an attractive approach for those insurers who questioned the extent of their insured’s disability, but left doubt as to whether the approach resulting from this ideology was objective or impartial.

[79] While Dr. Richman’s opinions find some support in medical literature, they are considered too skeptical by others. Dr. Richman’s research in this area was based on discussions with assessors at AssessMed but not on any empirical or validated study. In my view, it reflected a tendentious approach to assessments, which subjected AssessMed to being viewed as partial to insurers.

[10] Finally, the trial judge turned to the evidence of Dr. Michael Rathbone, who was Janet Hough’s treating neurologist and a defendant in the lawsuit. He had treated her for over four years and had a thorough understanding of her medical difficulties. He concluded that because of the brain injury she suffered in the accident, she was permanently impaired. The trial judge accepted this evidence and found that Dr. Rathbone’s conclusions were legitimate and to be preferred. He then described Dr. Rathbone’s part in the program as follows:

[97] Dr. Rathbone was interviewed for the program “Prove It If You Can” on June 25, 1998. During the interview, it became known to MacIntyre and Kaufman he had not seen Dr. Shah’s report. I am satisfied he took the time needed to review Dr. Shah’s report. When he was first shown the report, he looked at it and read some of the quotes Dr. Shah had relied on. He commented that some of the quotes were always negative quotes. He testified he felt the quotes were taken out of context and were misleading. He agreed with MacIntyre’s suggestion that this was biased.

[98] Dr. Rathbone then took some time to read Dr. Shah’s report. Having done so, he said Dr. Shah’s report was “biased and unfortunately comes to a conclusion which is clearly in error”.

[99] I am satisfied that this comment was made by Dr. Rathbone independently of MacIntyre’s previous reference to bias and with a reasonably held belief that Dr. Shah’s report was in error.

[11] The trial judge then began an equally careful legal analysis. He first concluded that the plain and obvious meaning of the words used in the broadcast was capable of being defamatory: it was capable of being understood as saying that the appellants participated with the insurance company in the wrongful denial of benefits payable to Janet Hough, a severely injured accident victim.

[12] He next considered the particular false innuendos pleaded by the appellants and found that the words used were capable of conveying some but not all of these meanings. In particular, he found that they were not capable of meaning that the appellants used the same aggressive and sceptical approach with all claimants that they demonstrated with Janet Hough. However he found that the program could be taken to mean that their medical evaluation of Janet Hough was affected by a predisposition to treat claimants as liars and fakers.

[13] The trial judge then considered whether the broadcast was in fact understood in its defamatory sense and found that it was.

[14] Turning to the defence of fair comment, the trial judge held that the words complained of were comments rather than bare facts which had no support, were based on facts referred to in the broadcast that were themselves true, and were comments on a matter of public interest. They were honestly held views that a fair-minded person could reasonably hold. As well, they were fair in the sense that the program balanced them with expressions of the other side of the debate. Finally he found that they were made without malice. The defence of fair comment was thus successfully made out.

[15] Even though he found that the defence of fair comment succeeded, he went on to assess damages in case he was in error. Finally, he concluded by dismissing the action with costs to the respondents, to be assessed.

ANALYSIS
[16] The appellants’ first argument is that the trial judge erred in unduly narrowing the defamatory meaning of the broadcast. Here their primary submission focuses on the first step of the analysis, namely whether the program in its plain and obvious meaning or in the specific innuendos pleaded, is capable of defamatory meaning.

[17] The appellants pleaded that the program was capable of being understood to mean that they treated all accident victims as liars, frauds or fakers and were biased medical evaluators. The trial judge disagreed that the program could give rise to an innuendo this broad and limited the range of possible meanings to Janet Hough’s case, and accident victims like her.

[18] I see no error in his doing so. He reached this conclusion by properly considering not just the specific words advanced by the appellants but the full context in which those words appeared in the program. This provided ample support for his conclusion that the innuendo advanced by the appellants – namely that they were biased medical evaluators who treated all claimants this way – was simply too broad. The program made clear through Dr. Richman, Dr. Ameis, and the CBC host, that some but not all claimants were frauds, and that this was recognized by the appellants. While the trial judge found support for the innuendo that the appellants had a predisposition to treat claimants as liars or frauds, the program stopped short of saying they do so generally. There clearly were cases where they did not treat the claimants this way. I agree that the program is not capable of the broad innuendo asserted by the appellants.

[19] This case is not the same as Barltrop v. Canadian Broadcasting Corp., [1978] 86 D.L.R. (3d) 61 (N.S.C.A.) on which the appellants seek to rely. There the defamatory words in the program were in a context that led to the conclusion that Dr. Barltrop was intellectually dishonest generally as a physician. Here the context simply does not permit the same general conclusion about the appellants’ approach to their cases.

[20] In oral argument, the appellants also sought to support the innuendo that the program was capable of being understood to mean that the appellants were dishonest doctors in the pockets of insurers. The simple answer to this is that the appellants did not plead this innuendo. Moreover there is no suggestion in the program that in rendering their reports the appellants said what they did because they were paid to say so. The trial judge did not need to consider this innuendo.

[21] Finally, the appellants say that the trial judge erred in finding that reasonable viewers understood the words of the program to mean that the opinion about Janet Hough in Dr. Shah’s report was biased and in error but not that his medical evaluation was performed improperly or incompetently.

[22] I do not agree that the trial judge erred in this respect. This finding is at step two of the determination of defamatory meaning, when the trial judge is addressing not the meanings the broadcast was capable of supporting, but how the broadcast was in fact understood by reasonable viewers. As such, the trial judge’s conclusion is a finding of fact that deserves deference on appeal. Moreover, it is a finding well supported by the record. The reasonable viewer would have understood the difference between the opinion expressed by Dr. Shah in his report and the medical testing of Janet Hough that he did before forming his opinion. While the former was said to be biased, nothing was said in the program to leave the understanding that the testing itself was done incompetently.

[23] The appellants’ second major attack is on the judge’s conclusion that the statements he found to be defamatory constituted fair comment. Here they raise a number of arguments.

[24] First, they say that the trial judge erred in finding these statements to be comment not statements of fact. Again, I do not agree. The trial judge carefully explained that the defamatory statements were in each case derived from facts stated in the program and that reasonable viewers would have recognized the statements to be the commentator’s opinions about, or conclusions drawn, from those facts.

[25] For example, Dr. Rathbone’s statement that Dr. Shah’s report was biased and in error was presented in the context of the facts about his treatment of Janet Hough over five years and would be seen by reasonable viewers as an expression of his opinion, based on his own treatment of her, about Dr. Shah’s conclusions.

[26] Another example is the statement found to carry the defamatory meaning that the appellants’ medical evaluation of Janet Hough was indicative of their predisposition to treat claimants as liars or frauds. This was clearly a conclusion drawn from a number of facts stated in the program including the treatment accorded to Janet Hough, and Dr. Richman’s published article. The reasonable viewer would have had no difficulty understanding it that way.

[27] The trial judge made the same assessment for all of the defamatory statements he found. In this respect, this case cannot be compared to Barltrop or Leenan v. Canadian Broadcasting Corp. (2000), 48 O.R. (3d) 656 affirmed (2001), 54 O.R. (3d) 312 (Ont. C.A.). In those cases, there were insufficient basic facts presented in the program to permit reasonable viewers to understand that the defamatory statements were opinions or judgments drawn from those facts rather than themselves free-standing assertions of fact.

[28] The appellants then argue that the trial judge erred in finding that the program presented both sides of the debate in a balanced way. I find no error in his conclusion. The broad debate, so far as it related to the appellants rather than the insurers, was whether as medical evaluators they approached accident victims with a certain predisposition or whether they did so objectively. The program stated its own opinion on this but also presented the appellants’ view, through Dr. Richman’s colleague Dr. Ameis, that they tried to be as objective and impartial as possible.

[29] Even if one were to apply this fairness requirement to the particular innuendo that Dr. Shah’s position that Janet Hough was not disabled was without support, there is still no error. As the trial judge found, the medical evidence established that she was disabled, that early medical reports that might support the contrary view were overly optimistic and wrong, and that this was clear by the time of the broadcast. Thus there was no support for Dr. Shah’s position to be presented.

[30] Finally, although not addressed in oral argument, in their factum the appellants attack the trial judge’s conclusion that the comments were based on facts that were themselves true. Again, I disagree. What is required for the fair comment defence to be established is that there be a sufficient basis of fact to warrant the comment. The trial judge set out in great detail the facts in the program upon which the defamatory comments were based and found that all were proven to be substantially true. These findings deserve significant deference in this court. All have a basis in the evidence. None represent palpable and overriding error. This includes the finding of an absence of malice based on the trial judge’s assessment of the credibility of the respondents and his conclusion that they each honestly believe the statements and held the opinions and drew the conclusions presented in the program.

[31] In summary, therefore, I find no basis to interfere with the conclusion of the trial judge that the respondents properly established the defence of fair comment.

[32] Before concluding, there are several matters that require brief comment.

[33] Although it was not separately pursued in oral argument, in their factum the appellants launch a discrete attack on the trial judge’s conclusion concerning Dr. Rathbone’s statements. As I understand it, this is essentially a reiteration in this specific context of their fair comment arguments that I have already dealt with, and I would give the same answers.

[34] The appellants also challenge the trial judge’s damage assessment. Given the disposition I would make of the appeal on liability, I do not think it necessary to address this argument.

[35] In like measure there are four other matters that need not be dealt with. The appellants brought separate appeals from each of two intra-trial rulings denying their request to amend their pleadings to broaden the damage claim. The respondents also appealed a ruling at trial denying their request to amend their pleadings on an aspect of liability and a cross-appeal on damages contingent on the liability appeal being allowed. Given my disposition of the latter, it is unnecessary to deal with any of these.

[36] For these reasons I conclude that the appeal must be dismissed.

[37] There is no reason why the respondents should not receive their costs on a partial indemnity basis. Together their proposed costs total some $120,000.00. For their part, the appellants suggested that if successful they should receive $100,000.00.

[38] The trial took 76 days – much too long, as the court indicated on the hearing of this appeal. This unfortunately necessitated review of a huge volume of material in what was in significant measure a fact driven appeal. Argument of the appeal took two days. Taking these factors into consideration, I conclude that a reasonable amount for costs is $80,000.00 all inclusive, split $30,000.00 to Dr. Rathbone and $50,000.00 to the remaining respondents.

RELEASED: June 6, 2006 “STG”
“S.T. Goudge J.A.”

“I agree Robert J. Sharpe J.A.”

“I agree H.S. LaForme J.A.”

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#10 User is offline   concerned 

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Posted 07 April 2011 - 01:31 PM

View Postdoppelganger, on 07 April 2011 - 12:45 PM, said:

this is a good site with a welth of information about prativces and policies.

Read this court caseshowing how injured persons are though of by Independent medical advisors.

Dr. Richman’s CV
http://www.assessmed...Medicine%29.pdf
He doesn't appear to mention this case!
A link to ACC
Editorial Board – “The Medical Disability Advisor” – Published by Presley Reed
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#11 User is offline   doppelganger 

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Posted 07 April 2011 - 03:55 PM

Notice the papers published

March 2006, first author in published research in the Journal of Occupational and Environmental
Medicine, “Objective tests of symptom exaggeration in independent medical examinations”
• May 2006, joined the faculty of medicine in the University of Montreal as a lecturer in the course
on: INSURANCE MEDICINE, MEDICOLEGAL EXPERTISE - MMD 6220 A-14
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#12 User is offline   hukildaspida 

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Posted 27 March 2012 - 11:58 PM

CANADIAN INJURED WORKERS SOCIETY

http://www.ciws.ca/m..._wsib_wcb_2.htm
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