WCB ISSUES

I have received various concerns about WCB, many angry. There are some precedent judgements passed that may help.

There are many more specific judgements – lancasterhouse.com is an excellent Canadian resource but can cost…
1) chronic pain exists and does not need xray or other evidence of existence. It is compensatable. Functional restoration completion does not suggest benefits can be stopped.
Provincial Supreme court cases made it clear pain of undetermined origin exists and needs to be treated like any other injuried subject – to not do so makes violator a human rights violator
Nova Scotia 2001

Chronic pain is a real entity yet treated poorly by many:

“Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.”

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A completed functional restoration program is not an invitation to cut off benefits:
“On the other hand, developing a consistent legislative response to the special issues raised by chronic pain claims — such as determining whether the pain is actually caused by the work-related accident and assessing the relevant degree of impairment — in order to avoid fraudulent claims is a pressing and substantial objective. However, it is obvious that the blanket exclusion of chronic pain from the workers’ compensation system does not minimally impair the rights of chronic pain sufferers. The challenged provisions make no attempt whatsoever to determine who is genuinely suffering and needs compensation and who may be abusing the system. They ignore the very real needs of the many workers who are in fact impaired by chronic pain and whose condition is not appropriately remedied by the four-week Functional Restoration Program. A last alleged objective of the legislation is to implement early medical intervention and return to work as the optimal treatment for chronic pain. Assuming that this objective is pressing and substantial and that the challenged provisions are rationally connected to it, however, they do not minimally impair the rights or chronic pain sufferers. No evidence indicates that an automatic cut-off of benefits regardless of individual needs is necessary to achieve that goal. This is particularly true with respect to ameliorative benefits which would actually facilitate return to work, such as vocational rehabilitation, medical aid and the rights to re-employment and accommodation. ”

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Negative comments are common in reports and inappropriately so.

“For these reasons, I do not find it necessary to determine, based on the limited evidence before us, whether chronic pain sufferers have historically been subject to disadvantage or stereotypes beyond those affecting other injured workers. It will be sufficient to note that many elements seem to point in that direction. Most importantly, the medical reports introduced as evidence often mention the inaccurate
negative assumptions towards chronic pain sufferers widely held by employers, compensation officials and the medical profession itself. They identify the correction of negative assumptions and attitudes of this kind as a significant step in improving the treatment of chronic pain. The troubling comments made by some case workersin the Laseur file appear to betray such negative assumptions. Thus, statements that Ms. Laseur had “fallen into the usual chronic pain picture” and that “[t]his is basically a chronic pain problem, perhaps even a chronic pain syndrome although she seems to be a very pleasant individual with not the usual features of this type of problem” were clearly inappropriate and suggest that Ms. Laseur’s claim may have been treated on the basis of presumed group characteristics rather than on its own merits. Finally, the medical experts recognize that chronic pain syndrome is partially psychological in nature, resulting as it does from many factors both physical and mental. This Court has consistently recognized that persons with mental disabilities have suffered considerable historical disadvantage and stereotypes: Granovsky, supra, at para. 68; R. v. Swain, [1991] 1 S.C.R. 933, at p. 994; Winko, supra, at paras. 35 et seq.
Although the parties have argued the s. 15(1) case on the basis that chronic pain is a “physical disability”, the widespread perception that it is primarily, or even entirely, psychosomatic may have played a significant role in reinforcing negative assumptions concerning this condition.

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Cutting people with chronic pain of undertermined origin off coverage is a fraud

“On the contrary, one is tempted to say that they solve the potential problem of fraudulent claims by preemptively deeming all chronic pain claims to be fraudulent. Despite the fact that chronic pain may become sufficiently severe to produce genuine and long-lasting incapacity to work, the provisions make no effort whatsoever to determine who is genuinely unable to work and who is abusing the system. ”

NWT 2006

Chronic pain of undetermined cause an acceptable diagnosis:

“In Martin, chronic pain was accepted as a disability.” (Nova Scotia 2001 ruling)

Chronic pain of undetermined origin is to be covered by WCB:

“Injured workers who suffer from chronic pain arising from a workplace accident are entitled to PPD benefits in addition to other benefits available or made available to other injured workers.”

2) Functional restoration program Refusal:
The claimant does not need to take rehab at all to still qualify for disability coverage -particularly if his/her doctor thinks inadvisable. Newfoundland precedent:
Osmond v. Newfoundland (Workers’ Compensation Commission) SUPREME COURT OF NEWFOUNDLAND 2001
Ruling here
3) Cross-examining WCB doctors – a court ruling in Alberta stipulated that injured workers could cross examine WCB doctors as otherewise would represented a breach of natural justice. Alberta precedent:
Ruling here

4) You could find a job – so there: [NOT SO – has to be available and “substantive”]
A Canada pension plan rulilng in 2001 found that

• employment had to be available in subjects location
• employment had to be “substantive” – enough to live on.

ruling here

I’m not sure how easily it will be to get the last two precendents generalized to all provinces. The first two (especially Nova Scotia one) caused massive reorganization of WCB policy across Canada and so will probably be taken seriously.

One writer felt doctors in general should be taken to task for their treatment of WCB cases. In gneral, I am forced to agree. One WCB hearing I attended made note of how the patient’s family physician was a major source of trouble for WCB cases. I would like to also offer that there are some of us angered and dismayed by WCB antics. A psychologist I know, that has seen doctors in councelling, mentioned that angst over WCB is a common contributor to burnout in physicians.
I would be interested in any suggestions handling WCB. What is really needed are unbiased specialists willing to balance some of the knee jerk summary “convictions” handed out by some insurance company sponsored/referred doctors/specialists. Particularly some who undertstands chronic pain. COULD USE MAJOR HELP HERE..