SASKATOON - Workers permanently injured on the job are winning retroactive payments worth thousands of dollars from the Workers' Compensation Board, thanks to a private advocate who tracked them down.
Alex Taylor says the money is for an "independence allowance." It pays for chores the injured people can no longer do for themselves, such as yard work.
Taylor says it was several years before some people found out they were entitled to the money, and that is why they are getting back pay now.
"In one case, it was a fellow who had been blinded in both eyes and they had underpaid him tens of thousands of dollars," says Taylor. "Why would you underpay a person who was blind? On what grounds are you doing it?"
The Compensation Board says the outstanding claims were cleared up a few years ago, but Taylor disputes that.
He estimates only a third of the cases have actually been settled and he says there could still be $40 million owed in back pay.
OTTAWA — The Supreme Court of Canada has struck down Nova Scotia legislation that barred compensation payments to workers suffering from chronic pain syndrome — people often painted as malingerers who refuse to return to work. In a 9-0 decision yesterday, the court ruled the blanket ban on payments violated constitutionally guaranteed equality rights.
It said claims must be assessed on a case-by-case basis and gave the Nova Scotia government six months to revamp its workers compensation system to provide for such review.
The wide-ranging judgment didn't stop there.
The court also ruled that provincial workers compensation tribunals have the legal power to interpret the Charter of Rights — a finding that may have sweeping implications in other areas.
There are hundreds of provincial and federal administrative bodies that adjudicate everything from rent increases to medicare eligibility, sexual harassment complaints, equal pay disputes and immigration and refugee claims. All could see their powers broadened by the decision.
In laying down new guidelines, the court effectively overruled itself — repudiating a 1996 decision that severely curtailed the ability of the Canadian Human Rights Commission to interpret charter issues.
Justice Charles Gonthier, who wrote the judgment, described the legal reasoning used by the court in 1996 as "no longer good law" and rejected the notion that only judges can consider charter arguments.
"Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts."
The reversal was a vindication for Chief Justice Beverley McLachlin, who was on the minority side in the 5-2 judgment seven years ago. "The charter is not some Holy Grail which only judicial initiates of the superior courts may touch," McLachlin wrote in her much-quoted dissent at the time.
The last straw for Holland Tolkien was when they told him to go on welfare.
The Saskatoon man couldn't believe his ears when a Workers' Compensation Board (WCB) employee gave him that bit of advice.
After he suffered a head injury at work in September 1997, Tolkien received a few weeks worth of compensation from the WCB before it was cut.
He appealed, then waited more than a year for the challenge to be dealt with.
The former farm equipment mechanic claims he is still waiting to find out just how the WCB intends to handle his case, four months after it acknowledged there was a possibility he was eligible for further compensation.
In that time the WCB has made one payment to Tolkien, but the money went to cover overdue maintenance payments owed by the divorced father of four, who has been unable to work since his accident because he suffers persistent migraine headaches and depression.
Later this month, Tolkien is scheduled to undergo a medical assessment ordered by the board, which contends there's no physical evidence linking Tolkien's condition with the accident.
WCB spokesperson Janice Siekawitch said the board has handled Tolkien's file as quickly as possible. She said setting up a medical panel to carry out an assessment isn't easy because specialists are very busy.
Siekawitch said the board is handling cases "faster and better" than before, thanks to internal reforms.
Tolkien, sinking deeper into a financial quagmire and nearing a complete emotional and physical collapse, finds it hard to believe.
"It's been four months and now they tell me I should go on welfare," he said during an interview in the spartan room he rents in a Riversdale house.
"Well, I'm done with the indignity of welfare. I'm not asking for special treatment. I'm just asking for what I'm entitled to."
Tolkien's case illustrates two of the most significant problems plaguing the workers' compensation system in Saskatchewan, say activists who work on behalf of injured workers.
The first is the large backlog of cases under appeal. The other is the delay in dealing with some appeal cases after the board has accepted a claim. Both may be mentioned when a committee struck to do a statutory review of the board's practices reports to Labour Minister Deb Higgins later this year.
The number of files being handled by the province's Worker's Advocate office has steadily increased over the last decade. Worker's advocates represent injured workers when they appeal their cases.
Currently, six advocates have about 900 files to handle, a massive workload that can lead to two-year delays in resolving cases. The board has a mandate to provide fair and timely service to injured workers and employers.
"The Worker's Advocate office does a wonderful job with the resources they are given," says Alex Taylor, an injured forestry worker who now runs his own safety and disability management consulting firm in Saskatoon.
"But they aren't given enough resources. And very often, the worker's advocate will win a decision and they still have to wait months for something to happen. When they do win a case, it should be resolved. Once you win, why should you wait?"
The Department of Labour is responsible for the Worker's Advocate office, although the board pays for the service. Department spokesperson Carol Todd said the government realizes the backlog at the office is too large.
"We're aware of the difficulties of getting to all of the cases in what we feel is an appropriate length of time. We know there is obviously some reason for a backlog. We are trying to find a way to resolve the problem."
Todd said the government doesn't have the money to hire more advocates. In 1999, it hired two and a manager. She said what could be improved immediately is the communication between advocates and WCB employees.
"Part of the problem is information sharing. We're working on getting the advocates electronic access to WCB files."
A source said fewer cases would be appealed if the board spent the same amount of time determining whether a worker is eligible for compensation as it does finding reasons to disallow a compensation claim.
"The board should be unbiased as to whether it accepts or disallows a case. They shouldn't be just looking for things to disallow. They should also be looking for things to allow. That's part of their duty, to ensure entitlement."
Taylor says the board has promised to set up a Fair Practices Office that would assist clients with complaints.
Siekawitch said the board has put the project on hold while it completes a restructuring in how it delivers services.
The organization has adopted a team-based approach to client services that has employees from various departments working together on individual claims involving the most severely injured workers.
"The Saskatoon one has been up and running for three or four months and it's working very well," she said.
The Internet has provided unprecedented opportunities for people to get together and share their stories. injusticebusters recognized this when we launched in the summer of 1998. We immediately linked to Gord McMullen when his site was publicicized because Workman's Comp was trying to take him off the net. We published material from his site because we feared they might have some success. The good news is that there has been no success in having whistle-blowers and truth-tellers — all manner of injusticebusters — removed from the net.
The Workers' Compensation Boards in Canada operate as laws unto themselves. They have been accused of fraudulant activity many times and their first reaction is to silence their critics. They use many techniques to silence. Often they can count on the victims of their high-handed behavior giving up or dying. inJusticebusters think it would probably be impossible to defame these folks. In a fair battle in open court, there are thousands of Canadians who could testify to the allegations made against them. Alongside Revenue Canada, WCB has a lively and imaginative group of thugs employed to visit people and scare the bejeezus out of them. The Internet may allow those of us who have experienced such bullying to get our acts together and fight back.
". . .If the WCB believed in its case, it would have just pursued its claim for an injunction.
Instead it would appear that it has attempted to bully my web space provider into pulling my Site. To date this "back door" attempt to censor this Site has not worked, but is does show just how desperate the WCB is to conceal the truth.
Fortunately for me, and the public at large who needs to be warned about the WCB's conduct, my Internet provider's integrity as a business is stronger than the WCB's bullying tactics. . ."
inJusticebusters publishes the full story [below] of Gordon McMullan's fight on behalf of Eileen Cockburn. In fact, his story would be of no more interest than any story of a man doing his job — and doing it well — were it not for the fact that public servants so rarely grasp that their job is to serve the public! This story is complete. Eileen Cockburn filed a claim and eventually she received her money. inJusticebusters intends to keep it up here whatever the outcome of WCB's attempts to shut this story down. The story behind the story continues to unfold and we encourage everyone to follow it, whether here or on Gord McMullan's site.
The Workers' Compensation Board of Alberta is seeking a court injunction to delete a former employee's decidedly non-complimentary claims about it on his Internet website.
Internet afficionados are calling the WCB's actions unprecedented in Canadian law.
"I haven't heard of any government body doing something like this," says Ron Kawchuck, president of the Canadian Association of Internet Providers.
The website was created by Gordon McMullan, who worked for the WCB from 1990 to 1994 as an assessment information officer in Edmonton.
McMullan's site documents the WCB's handling of injured Edmonton newspaper carriers whom he alleges were defrauded out of the coverage and benefits they deserved during his time.
He says within weeks of bringing the alleged fraud to the attention of his supervisor, he was fired for "philosophical differences."
McMullan is calling for a public inquiry into the WCB and identifies Alberta Labour Minister Murray Smith of Calgary as responsible foMr the WCB.
He published Smith's picture and his e-mail address urging Albertans to lobby Smith for the inquiry into alleged "corruption" at the WCB.
WCB documents filed in Edmonton's Court of Queen's Bench, meanwhile, seek deletions from the site claiming that McMullan breached an oath of employee confidentiality and that his claims are unfounded.
The WCB seeks to have the court compel McMullan to delete "any reference to the applicant acting in bad faith, defrauding or attempt to defraud any injured workers, and any reference to the applicant alleging corruption or fraudulent misconduct."
McMullan says in a notice of motion filed in response Nov. 9 that the WCB's application infringes, in part, the Charter of Rights and Freedoms guarantees to freedom speech.
It also says McMullan's documentation for his claims are readily available through Alberta's Freedom of Information and Protection of Privacy Act and through court documents.
The matter has been adjourned Nov. 9 for two weeks to allow McMullan to prepare an affidavit in rebuttal.
"Things that have yet to be revealed on my website will be front and centre in my affidavit," McMullan told the Herald. "For the WCB, the worst is yet to come."
"Things that have yet to be revealed on my website will be front and centre in my affidavit," McMullan told the Herald. "For the WCB, the worst is yet to come."
The Herald was unable to reach Smith for comment.
But Smith's executive assistant Joe Miller said that while he is responsible for the WCB Act, he was not responsible for the board, which acts at arm's length from the government.
Rick Broadhead, co-author of the Canadian Internet Handbook, says even if the WCB is successful in curtailing McMullan's freedom of speech, his web page could easily be e-mailed around the world.
"The government's authority ends at the border. The Internet is borderless," Broadhead said.
"It could turn into a public relations nightmare for them. There is no doubt other people would duplicate that information on his behalf."
"You would have hundreds, if not thousands supporting him within days, if not hours," Broadhead said.
"That may be something we have to deal with," said WCB spokesman Mike Dickenson.
He said the board has an obligation to protect the confidentiality of its information, its employees and stakeholders within Alberta borders.
"We've requested an injunction to remove the website. We're doing what we feel is right to uphold the laws in this case. If think if people understood the issues involved here, they would support our action," he said.
Eileen Cockburn was an injured newspaper carrier who was originally defrauded out of workers compensation benefits because the Alberta WCB viewed her as a "newspaper carrier".
Although there were many who were defrauded before her, if it had not been for Eileen Cockburn, the fraudulent misconduct by the Alberta WCB might not have ever been discovered.
Within this page I not only tell her story, as a victim of the WCB, but I also tell the story of how I came to uncover the fraud against newspaper carriers while I worked at the Alberta WCB.
In 1990 I started working for the Alberta WCB as an "Assessment Information Officer." In the course of my duties I would regularly answer telephone calls from employers who had questions or concerns about their accounts. I would also sometimes answer telephone calls from injured workers.
On October 12, 1994, I received a call from a lady named Eileen Cockburn. She told me that she had been injured while delivering newspapers for the Edmonton Journal. She went on to say that when she reported her injury to her boss at the Edmonton Journal she was told that she was not covered as a "worker" under the Workers' Compensation Act of Alberta.
When she spoke to me she was distraught,and she wanted to know if this was true, and why. I advised Mrs. Cockburn that it was also my understanding that newspaper carriers were being denied workers compensation coverage, but that I did not know why.
Concerned about her emotional state, and wanting to explain the basis of the denial to her, I told her I would look into the matter and call her back with an explanation.
As an Assessment Information Officer, one of my duties was to determine if someone was, or was not, a "worker" under the Workers Compensation Act.
Following normal procedure in Mrs. Cockburn's case, I asked her a number of questions which were important to determining her true "status" under the Act. Following that, I then called the Edmonton Journal where I also obtained information from them regarding the Journal's employment relationship with Mrs. Cockburn.
Based on the information obtained from both Mrs. Cockburn and the Edmonton Journal it was clear to me that Mrs. Cockburn was a "worker" under the Act, and accordingly she should have been able to advance a claim for benefits.
Knowing how distraught Mrs. Cockburn was, and being certain that she should be able to advance her claim, I set out to find out why the WCB was denying the claims of newspaper carriers.
In an attempt to find the answer to this question I reviewed a "special file" that contained a large amount of background information on newspaper carriers, including a "Special Report" that reported the results of a newspaper industry audit in 1990.
What I found in this file shocked me.
I discovered that even though both the WCB's Assessment and Legal Departments had determined that newspaper carriers were workers, the WCB was still denying their claims.
In plain terms the WCB was defauding them of the "coverage", benefits, and protections they were legally entitled to receive under the Workers Compensation Act.
All the documents I found suggested that the reason the Alberta WCB was defrauding newspaper carriers was because the WCB was afraid of receiving "bad publicity" from the newspaper publishers if the WCB forced them to pay for the coverage that newspaper carriers were entitled to have. (See The History of Bad Faith Towards Newspaper Carriers page on McMullan's site for a more detailed description of what he discovered, including downloadable copies of the WCB's internal documents that establish the misconduct)
My Further Investigation
Although the evidence of fraud and bad faith was right there before my very eyes to read, I had a hard time accepting that this could happen. Hoping that there was some innocent explanation for this "situation", I set out to further investigate. Specifically, within some of the documents in the "special file" on newspaper carriers I found references to "Assessment Management Meetings". I felt that I might find this explanation in the minutes from these meetings, so I obtained and reviewed the minutes as well.
Instead of an explanation what I found was even more disturbing!
I discovered, that even after coming to the conclusion that newspaper carriers were "workers" of their publishers (and entitled to coverage), the group of Assessment Managers made the decision to deny a pending claim from an injured newspaper carrier. They even kept their knowledge from the WCB's Board of Directors, made up of equal representation from employers, workers and the general public.
My Decision To Act
There was no way I was going to participate in this sort of misconduct, especially when I knew how distraught Mrs. Cockburn was over having her claim denied.
I felt that Mrs. Cockburn, like all injured workers, should receive the benefits she was legally entitled to. Deeply concerned I wrote a memo to my supervisor, Debra Redel, advising her of my findings and view that Mrs. Cockburn's claim should be accepted. Within this memo, dated October 19, 1994, I wrote:
"While investigating an answer to her [Mrs. Cockburn's] inquiry I have come to the conclusion that legally we should cover her as a worker of the Edmonton Journal.
My conclusions do not support present practice but they do support the Workers' Compensation Act Assessment Policy and the opinion of our Legal Department."
"The above has put me in a difficult situation. On the one hand I am compelled to uphold the Act and our Policies, however,I don't believe Assessment Management nor the Board of Directors are prepared to offer the carriers WCB coverage.
I do not wish to disagree with Assessment Management nor the Board of Directors but I feel we are doing the wrong thing by denying these people coverage."
"As the Act and Policy dictates newspaper carriers should be covered we should honor the claim of Mrs. Cockburn..."
In her reply, Ms. Redel acknowledged reviewing the information in the "special file" on newspaper carriers, and of discussing the matter with Charlene Chrystian; the person who had authored the "Special Report" in May 1990, that reported the results of a 5 week audit by the WCB of the newspaper publishing industry.
While the whole report is extremely telling on the true status of newspaper carriers as "workers", the following excert from the "Executive Summary" portion of the report is worthy of note at this point:
"...the Workers' Compensation Board of Alberta has a responsibility to extend the benefits of protection of the Act to those individuals carrying newspapers on behalf of the publisher(s). To do otherwise would deny coverage to workers."
"The conditions set by the 'five fold' test (control, ownership of goods, risk of loss, chance of profit and whether the work is an integeral part of the employer's operations) are met and indicate that newspaper carriers, regardless of age, are workers of the publisher and, therefore, should be assessed accordingly."
To my dismay, my supervisor, Ms. Redel, sent me a memo on October 27, 1994, instructing me to tell Ms. Cockburn she was not a "worker" who could file a claim.
At that point in time I didn't know what to do.
I felt that I was being instructed to participate in what would be a fraud against Mrs. Cockburn; a fraud to deny her of the workers compensation benefits she deserved. Because of these concerns I did not convey a response to Mrs. Cockburn.
To my relief during the first week of November 1994, a co-worker, Ms. Joan Elliot, approached me with the file maintained for the Edmonton Journal. She pointed out to me that the Edmonton Journal had been reporting Mrs. Cockburn as a "worker" and paying assessment premiums for her Assessable Earnings in its 1993, "Employer's Contract Or Subcontract Report."
A Bit of History Here!
At this juncture it should be pointed out that in 1980 the Edmonton Journal approached the WCB and obtained a "Board Order" that deemed "Contract Drivers" distributing its papers to be its workers.
It is this writer's opinion that the Edmonton Journal did this because these "drivers" posed a high risk to the Edmonton Journal in that if they were involved in a motor vehicle accident (where they were negligent), the Edmonton Journal might be named in any law suit brought by the other injured party.
By having these drivers "deemed" to be its workers, the Edmonton Journal would be protected from any such law suit under section 18 of the Workers Compensation Act.
At this point I thought I had found a way out of my dilemma. Although my supervisor had agreed with me that Mrs. Cockburn was a "newspaper carrier" in the minds of the WCB, the Edmonton Journal appeared to be willing to cover Mrs. Cockburn under the Board Order it sought and obtained in 1980.
Hoping that Mrs. Cockburn's claim would be accepted on this basis, on November 7, 1994, I wrote another memo to my supervisor, Ms. Redel. I attached a copy of the "Deeming Order" and the Edmonton Journal's 1993 "Employer's Contract Or Subcontract Report," and explained the situation. I concluded my memo by stating:
"When we have time I would like to meet with you regarding this subject and specifically the status of Mrs. Cockburn."
Ms. Redel did not reply to this memo, however, on December1, 1994, I received another telephone call from Mrs. Cockburn. She was inquiring as to whether a decision had been made on her status, so I once again wrote Ms. Redel a memo asking about Mrs. Cockburn's status. Within this memo, dated December 1, 1994, I wrote:
"Eileen Cockburn called today wondering if there has been a decision on her claim. She says she is in financial straights' and was wondering if she would be receiving assistance from the WCB."
Ms. Redel later advised me that she had sent a co-worker of mine, Karen Price, out to the Edmonton Journal to discuss the situation.
I later talked to Ms. Price who advised me that the Edmonton Journal did not want to cover their rural carriers ("Country Agents") and that their earnings were reported in error.
Ms. Price agreed with me that newspaper carriers were workers but that Assessment Management were not prepared to accept their claims. She said the best thing for Mrs. Cockburn to do would be to appeal our decision to the Assessment Review Committee. The Assessment Review Committee would then "slap Assessment Management's hands".
Ms. Price then asked if I wanted to contact Ms. Cockburn to tell her about the WCB's decision to deny her claim. I told her I wasn't comfortable with the situation so Ms. Price said she would tell our Claims Department to call Ms. Cockburn.
On December 15, 1994, (two weeks after my last memo to my supervisor) my employment with the Alberta WCB was abruptly terminated - without any notice. At that time I was advised by Mr. Robert Nebo, the acting Director of the Assessment Department, that I was being terminated due to "philosophical differences."
Following my termination I filed a wrongful dismissal action against the WCB of Alberta, including a claim that they had instructed me to act improperly towards Mrs. Cockburn.
Ms. Cockburn Appeals
In the fall of 1995, Mrs. Cockburn was contacted to be a witness in my case. At that time I found out that the WCB had still not paid her the benefits she was legally entitled to receive. At that point I authorized my lawyer to act as her lawyer to help her file an internal WCB "appeal", so that she would get the benefits she had been defrauded out of earlier by the WCB.
In December 1995, when the WCB was confronted with the prospect of having its conduct toward Mrs. Cockburn exposed within its own "appeal" process, it continued to refuse to reverse its earlier decision and to pay her the benefits it had defrauded her out of.
WCB Files False Affidavit
Instead of paying Mrs. Cockburn the compensation benefits she deserved, the WCB decided to, on January 4, 1996, file a false affidavit in my Court action.
Within this Affidavit the "deponent," Mr. Nebo, falsely claimed as follows:
4. That I have come to learn from information provided through other employees of the Workers' Compensation Board and elsewhere and do verily believe that contrary to the terms of the Confidentiality Covenant which is attached hereto as Exhibit "A" to this my Affidavit the Plaintiff has provided confidential documents which are the property of the Workers Compensation Board to Eileen Cockburn or alternatively has provided those confidential documents to Barry McMullan who has in turn provided the same to Eileen Cockburn.
Not only was this statement known to me to be false, when Mr. Nebo was later cross-examined on his Affidavit, on February 28, 1996, he was forced to admit that the above statement was false.
(Mr. Nebo's full cross-examination where he admitted that he had, in essence, sworn a false Affidavit is on Mr. McMullan's site.)
I viewed the filing of the false Affidavit in my Court Action as an attempt to "intimidate" me and my lawyer. It felt that if the WCB was desperate enough to file a false Affidavit in the Court House, surely they would stop at nothing to distort the truth about their fraud against newspaper carriers.
As a result of the WCB's misconduct (including the filing of the false Affidavit) Mrs. Cockburn was forced to file a Court Action of her own to get the benefits she was wrongly denied. I believe that she felt she needed the Court's protection.
On behalf of Ms. Cockburn I filed an Affidavit with the Court outlining what I knew about her claim, the way she was being treated, and the underlying fraudulent behavior by the WCB against the class of worker it identified as "newspaper carriers."
inJusticebusters first published this story in July, 1998
On July 2nd, 1998 the Workman's Compensation Board lost a decision in the case of whether the Saskatchewan Human Rights Commission (SHRC), has the right to hear and adjudicate claims before it regarding the WCB.
The WCB on July 27th, 1998 appealed this decision. It is probable that the WCB will go all the way to the Supreme Court with this one. What a waste of money.
The WCB and politicians claim that the WCB is separate from govt. How can this be when our former justice minister Mr. Mitchell signs his letter as the Minister Responsible for the WCB, in matters regarding such.
The central issue is whether the working people of our province have the right to have grievances heard by the SHRC when it comes to the WCB.The legal counsel for the WCB, a Mr. R. G. Richards, of the law firm, MacPherson, Leslie and Tyerman stated if this action is allowed it could open a flood-gate of complaints against the WCB.
This would mean that they are knowingly violating human rights and want to continue to do so. Why else would the WCB not welcome the SHRC into the WCB with open arms? What are they hiding? There are over 37,000 people a year for the last two years that apply for WCB, about eight percent of the workforce. This affects those who are not injured, as all are at risk of having a work place accident.
The workforce is just under 500,000 in Saskatchewan.