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Workman's Compensation Board

Thomas Brown Case against Saskatchewan Power

http://tombrownskwcb.tripod.com/ Tom's website is defunct

Thomas Brown

Dear Injusticebusters:

I have recently visited your website, and am pleased to see that someone has the moxy to publish articles concerning Workman's Compensation Board's corruption. Below is a brief history of my situation, please feel free to use any part of it. I would be extremely grateful if you could direct me to anyone in Saskatchewan who could assist me.

In 1997 I was working as a licensed arborist (contracting for SaskPower), and had been employed as such for some 15 years. In September of '97, there was a very significant change made to my job duties/workload. It was at the exact time of this change, that a serious injury occurred to my cervical spine.

Virtually everyone (my employer, my family physician, my neurosurgeon, the worker's advocate, and my lawyer) has supported my claim for WCB benefits the past 5 years, yet the WCB has continuously denied my claim. To date I have never received any compensation for my injury, and have been unable to work since it occurred.

I have undergone 2 surgeries to correct the injury to my cervical spine. The last surgery has left me permanently disabled with a condition known as a "Brown Sequard" syndrome (little to no sensation on the left half of my body - moderate to severe paralysis on the right). In addition to this, I still experience the same severe, chronic pain that the surgeries were meant to relieve.

Over the past 5 years, my numerous appeals have been heard (and ignored) by; the WCB, the Courts, the Minister of Labour, and the Premier's Office. Throughout these appeals, WCB's "Exclusive Jurisdiction" has proven to be impenetrable. I have come to believe I am fighting against a government agency that answers to nobody.

At age 44, I am forced to support my 8 yr. old daughter and I (single parent) on my Canada Disability Pension. My pension is actually so small that I am subsidized by Social Services. The most difficult part of this, is that I know I should be receiving WCB benefits.

I feel that the remnants of my self-esteem are dwindling away.

Sincerely, Tom Brown e-mail, October 18, 2002

My employment (the change in job duties/workload)

As mentioned, I had been a licensed arborist (tree trimmer) for some 15 years prior to my injury. The majority (about 90%) of my work was performed from a manlift, working at eye level, using a hydraulic driven chainsaw. In the early part of September 1997, there was a very significant change made to my job duties/workload.

The company I was employed with, was contracted by SaskPower to clear powerlines in an area known for it's dense population of trees. To add to this, the bulk of these trees were located in easements that were too narrow for any manlift to access. This being the case, the bulk of the trimming had to be performed from the ground using telescopic polesaws.

The following is a brief description of "Polesawing" (it should be noted this description was provided to the WCB and it's doctors, as well as a video taped demonstration of it) :

"When I was polesawing, I stood on the ground with a 30 foot telescopic pole with a 10 inch saw blade attached to the end. I would manually saw off tree branches up to 30 feet above my head. I had to bend my head back so I could see the branch I was sawing, and with my arms extended above my head, I would push and pull the saw back and forth. Depending on the size of the branch, I would maintain this posture with arm/shoulder movement for up to 5 minutes at a time".

The onset of symptoms

As is the case with many cervical spine (neck) injuries, I was not immediately aware that I had injured mine. I woke up one morning with a sore, stiff neck, I brushed it off as best I could and went to work. Like many people, I do not rush off to the doctor at the first sign of aches, or pain. It was not until this soreness persisted, and then worsened, that I decided to seek medical attention.

After x-rays were taken, my family doctor determined I had herniated a disc in my neck. This was confirmed by a neurosurgeon, who also noted a stable (22 yr.old) injury site, at a higher level of my neck. He arranged for further testing to be done, but suggested that surgery would likely be warranted.

My employer and I reported this injury to the WCB, and informed them of my intent to continue working lighter duties. After reviewing Saskpower progress reports, my employer and I were able to confirm the exact time my symptoms began. It came as no real surprise that they started, exactly when the polesawing started. I continued to work lighter duties for nearly 3 months, until the simple act of looking up became intolerable. I notified the WCB of my difficulties, and discontinued work.

The initial denial of benefits

I waited over 2 months before being notified my claim had been denied. In his letter of denial, my client service representative made the following statement :

"Before we can accept responsibility for medical cost or time loss benefits in connection with a claim, we must be able to confirm a work related cause. This is done by confirming a specific injury, or a sufficient change in job duties/workload sufficient enough to explain an onset of symptoms".

Although he had been made aware of the change in my job duties/workload, he went on to explain that the board felt my condition was caused by a non-compensable injury I had sustained 22 years prior. Considering I had worked about 19 of those 22 years (I was 17 at the time of that injury), I was stunned with this assumption. It should be noted that my doctor, and specialist, were equally stunned. It quickly became obvious I was in for one hellava fight.

The "Appeals Committee"

As I attempted to sort out some of my private affairs (i.e. my wife had left me 3 days after the denial), I began the arduous process of appealing. I contacted the Office of the Worker's Advocate, but because of a large backlog of WCB grievances, it would be a year before they could represent me. Thankfully though, one advocate (Marilyn Bird) suggested I go ahead with my first appeal on my own, and she assisted me with information to include in it.

I appealed to the "Appeals Committee" on 2 separate occasions, each time with further clarification of my employment. In between these appeals, I underwent surgery to correct the damage my injury had caused. The surgery proved to be as unsuccessful, as both appeals were. The committee (comprised of 1 individual) refused to accept the relationship between the change in my job duties/workload, and the onset of my symptoms. Further, he was quite content with the assumptions the board had already made as to what was causative of my condition (the 22 yr. old injury).

Appealing to the "Board Members"

By December of 1998, Marilyn Bird was officially assigned to my case. She quickly obtained the medical opinions of both my family doctor, and that of my specialist. Both opinions strongly supported my claim for WCB benefits, and were in sharp contrast to those of the WCB. My family doctor reported to her that he had not (during the 8 yrs. as my family's doctor) treated me for anything relating to my neck. My specialist reported that, "There is no question that such strenuous activities (polesawing) could result in a cervical disc protrusion (herniation)".

Ms. Bird appealed to the "Board Members" on my behalf, and represented me at an oral hearing with them in March of 1999. Also in attendance were my employer and I. It should be noted that my employer attended all appeal hearings, and fully supports my claim.

Some 3 months after the hearing, I was notified that my appeal had once again been denied. The Board Members did not accept my specialist's opinion on the relationship between my work activities, and the development of my disc herniation. They stated, "The simple facts of the matter are that the action of extending one's neck would not result in a disc protrusion".

Further, they implied that I had lied about the length of my involvement in the tree trimming industry, and as such, misled my doctors into believing I had, "Longstanding tree trimming duties". They stated that 3 of the tree companies (listed below) I claimed to have worked for (which accounted for 12 of my 15 yrs. experience) were virtually non-existent, and had never had accounts with the WCB.

This was only one of many false accusations made by the WCB. This particular one was disproved with a phone call from Ms. Bird to the WCB's assessment department. In her conversation with them she learned the following : "Hy-Line Tree Experts" had a WCB account from 1981-1992 (I injured my left wrist while employed there which the WCB covered in 1986) "Provincial Tree Services Inc." had a WCB account from 1991-1996 (I owned 50% of this corporation and as such, personally paid the WCB premiums) "Regional Tree Service" had a WCB account in 1997 (this is where I worked at the time of my neck injury) Ms. Bird appealed to the Board Members once again with this information, but we were notified several weeks later that they still upheld their previous decision.

It's important to keep in mind here that when an injured worker appeals a WCB decision, they are appealing to the very same
corrupt agency that made that decision in the first place. Although each "Level" of appeal claims to be impartial, and
independent of the others, they are all on the WCB payroll.

The surgery to end all surgeries

In another effort to relieve my pain and return to work, I underwent a second surgical procedure on May 12, 1999. The procedure known as a "Multiple laminectomy", could not have gone much worse than it did. With symptoms I have already described, I am now permanently disabled and unemployable.

My request for a "Medical Review Panel"

Since the Board Members had denied my claim because they did not agree with the medical opinions of my doctor and specialist, Ms. Bird felt there was a bona fide medical question (it should be noted my doctors shared this feeling). She obtained the necessary documentation, and requested that a Medical Review Panel convene on the following question : Could a posterior disc protrusion occur as a result of flexing one's neck backward such as is required to perform the duties of polesawing? Several weeks later, the Board Members denied a Medical Review Panel. They concluded that this question was more of a "Legal and factual" nature, than of a medical one. I thought I had heard it all until that very moment.

This was not a question for a lawyer, judge, or even a mediator to answer. It was a medical question that my doctors had no difficulty answering, nor did the WCB's doctors for that matter. This was (and still is) a prime example of 2 conflicting medical positions, and is (supposedly) the reason why Medical Review Panels were put into place.

It is important to note that, "Medical Review Panels" are the last avenue of appeal, and the WCB has little control over them.
The panels decisions are final and binding on both you, and the WCB. Unfortunately, you need the approval of the WCB
before you can access a panel. It is not very difficult to figure out why I was denied access to one.

The legal proceedings

To explain my experiences with, "The Court Of Queens Bench" and, "The Court Of Appeals For Saskatchewan", is not nearly as difficult or complex as one might think. In fact, I can sum up the entire fiasco in 2 words, "Section 22".

Section 22 of the WCB Act gives them "Exclusive jurisdiction", and they wield it around like a sword. With this section, they can legally manipulate other sections of the act (to better suit their needs), just as they did in my case. Finding a Judge bold enough to challenge section 22, would be the equivalent of finding that proverbial needle in the haystack. Even if a person located such a Judge, you cannot (unfortunately) pick and choose who resides over your case.

Suffice to say, I was not successful in either courts. I do however, consider myself fortunate to have located a lawyer who accepted my case on a "Contingency" basis. All it cost me was an additional 2 years of mental anguish, another large chunk of my self esteem, and another glimpse of my daughters fading future. In addition to this, I am sickened to think what the overall cost of these hearings were to the court system, and to the WCB's stakeholders.

My letters to The Minister Of Labour and The Premier

I spent many painful hours at my computer (it's hard on my head/neck/shoulders), putting together a 13 page letter to the Minister, and the Premier. In this letter, were detailed accounts of my 5 year battle for benefits, and the many corrupt tactics the WCB used to deny them.

For my trouble, I received what amounted to a "note" from the Minister stating, "It would be inappropriate for me to become involved with their (WCB) decision making process". She then had the audacity to sign this note, "The Minister Responsible for the Workers' Compensation Board". The final insult was at the very bottom of the page, "cc: Workers' Compensation Board". This begs the question, "Just who is responsible for who?"

As for the Premier, he sent an even smaller reply thanking me for, "..taking the time to share your concerns" and, "..your kind words regarding my leadership". Needless to say, I now regret those kind words.

Closing

The WCB has placed one obstacle after another between me and the benefits I rightfully deserve. One by one I have gotten around those obstacles, all the while dodging their attacks on my character, and yet I am no closer to receiving them than I was 5 years ago.

The fact that I have received these types of abuse from the very people who are supposed to help injured workers, is simply, unbelievably, wrong. The fact that the government responsible for the WCB actually condones this treatment, is worse yet.

I have recently become a member of the "Western Injured Workers Society". I am not yet certain which direction they will take my claim, I only know that I am willing to fight for as long as it takes, and maybe beyond that. My sincere thanks to "Injusticebusters" for allowing my story to be heard. This has given me new hope (that the truth can surface), and has helped me salvage some of my dignity.


This is one of dozens of letters injusticebusters has received. As we have said elsewhere on the site, we are overwhelmed with criminal injustices and don't have time to tackle WCB injustices, although we know this is another area where law abiding citizens can be stripped of all dignity by a corrupt system. We hope that by publishing those we do (short, simple stories which have a striking familiarity to those in similar circumstances) we can help to put faces to the victims of one of the most heartless bureaucracies in the land. And we encourage anyone who is in a position to help to do so!