Contravention of Rules of Natural Justice
Published Feb 12th 2009
Interesting developments in Alberta relative to the workers compensation board that is causing major problems. Under the rules of natural justice a party has the right to have the courts subpoena witnesses. The "Board" as well as the Appeals Commission have the same powers as the Court of Queens Bench to subpoena witnesses although this right is discretionary. Discretionary means if the Appeals Commission believes that it is pertinent to the case.
Twelve years ago I requested the Appeals
Commission to subpoena the two doctors who were in disagreement as
to the use of the AMA Guides. One doctor, Dr. Slessor who is a WCB
Medical Advisor stated in his documentary medical memo along with
the Chief Medical Adviser (Dr. Lauber) that they must use certain
tables in the AMA Guides in determining impairment. A WCB contract
doctor, Dr. Butts who performed an IME, determined that the tables
were useless and could not be used. Based on the fact that, there
was a difference in medical opinion, I requested that the doctors be
subpoenaed. The Appeals Commission refused as they felt that Dr.
Butt's medical opinion was not as compelling as Dr. Slessor's
medical opinion.
I filed a complaint with the Office of the
Ombudsman based on my right under the rules of natural justice to
have these doctors subpoenaed and cross examined. My complaint was
dismissed by the Office of the Ombudsman despite the fact that they
did agree that refusing to subpoena witnesses was a contravention of
the rules of natural justice. However, according to the Office of
the Ombudsman, the Appeals Commission had done nothing wrong as they
have the right to refuse to subpoena witnesses.
As it turned out, WCB were forced to admit at the
Human Rights Tribunal that Dr. Slessor had not explained as
explicitly as he should have why he was using the tables in the AMA
Guides and that the Appeals Commission had taken his medical opinion
out of context. This took 7 years to force WCB to admit they had
provided documentary evidence that was not intended to be used the
way it was used by the Appeals Commission. Had the Appeals
Commission subpoenaed the doctors the needless waste of time, 7
years would have never occurred. I have always maintained the fact
that documentary evidence is more often than not orchestrated
medical opinions or false medical opinions that without the right to
subpoena witnesses, mainly doctors, that no one knows where the
doctors got their opinions from or if their even qualified to
provide opinions. Of course the Appeals Commission have refused to
reconsider their original decision despite the fact that WCB has
admitted that they were wrong. For this reason I have filed a
Judicial Review. Can the Appeals Commission deny a request for a
reconsideration when factual evidence from WCB admitting an error
factually determines that the Appeals Commission has made a mistake?
A judge will have to decide that.
One of the major problems with even requesting
the Appeals Commission to subpoena witnesses is that the Appeals
Commission either lied or misled claimants as to the cost of having
the witnesses subpoenaed. The Appeals Commission up to several
months ago stated that a claimant must pay for all costs pertaining
to having the witnesses subpoenaed which was a blatant lie. The cost
of subpoenaing witnesses is supposed to come out of the accident
fund. The Appeals Commission recently corrected themselves and now
all costs relative to the subpoenaing of witnesses comes out of the
accident fund. The main reason why claimants were not requesting
subpoenaing witnesses was because of having to pay for the witnesses
attendance. Judicial Reviews also are supposed to come out of the
accident fund. A claimant should not have to pay for a Judicial
Review especially when the Appeals Commission lawyers are paid out
of the accident fund when they have to defend themselves. I filed a
request for a Judicial Review in Nov. of last year and that is one
of the requests I have made to the Courts that win or lose, I should
not have to pay any costs and that if costs are incurred, then I
have as much right to have the costs come out of the accident fund
as WCB or the Appeals Commission. After all, WCB does not have the
right to any of that money in the accident fund, that money belongs
to injured workers and held in trust by WCB.
Now that the costs are coming out of the accident
fund, the first claim before the Appeals Commission involves the
subpoenaing of witnesses. Guess what! WCB legal services have
written a 19 page letter to the Appeals Commission which I have,
stating the reasons why the subpoenaing of witnesses should not be
accepted as a right under the rules of natural justice. One of the
main reasons is the cost. Pardon me! Are workers not entitled to the
same rights as others simply because of the costs incurred with
subpoenaing witnesses. The next reason is the time it would take.
Pardon me! I am at the present time
involved with a claim that is 36 years old where the claimant was
cheated out of thousands of dollars. He has 4 claims dating back to
1973 that involves medical difference of opinions that involve WCB
contract doctors and WCB Medical Advisors insisting that the
claimant can work despite the fact that CPP and AISH have determined
that he is unemployable and cannot work at any job. As anyone knows
who has dealt with CPP, it is nearly impossible to have a claim
accepted for total disability, yet WCB doctors insist that the
claimant's injuries are not severe and prolonged and he is capable
of working on a regular basis.
One of his claims has now been presented to the
Appeals Commission and I have requested that they subpoena, all the
doctors including the medical experts at CPP and AISH. Clearly, if
the claimant has been on CPP disability since 1993 and has the
ability to work, he should not have been accepted on CPP and AISH.
The doctors who provided the medical information to CPP and AISH
that convinced CPP and AISH to accept his application either have
committed fraud or WCB doctors are guilty of fraud by suggesting
that he can work, although no one in WCB has suggested what work he
is capable of doing.
It certainly will be interesting whether the
present claim requesting subpoenaing of witnesses will be turned
down by the Appeals Commission. If it is, the claimant can request a
Judicial Review which could essentially go as far as the Supreme
Court. If civil and criminal trials guarantee the right to subpoena
witnesses, then why would workers rights to the same process be
denied. There is no way in hell that criminal or civil courts would
use documentary evidence to determine a court case rather than real
live witnesses that can be cross examined. To suggest that
documentary evidence can be cross examined is about as stupid as
suggesting that you can cross examine a wall. It has long been
determined that all medical evidence by WCB Medical Advisors is
orchestrated, often based on blatant lies by doctors who know that
they were immune and protected by the "Board" and the Appeals
Commission from being subpoenaed and cross examined under oath. This
has been a long time coming.
Gerry Miller.
P.S The 19 page document that I have from WCB
legal services requesting that witnesses not be allowed to be
subpoenaed and cross examined could be sent to any one requesting
this document, especially the Government and newspapers who refuse
to believe that this organization is worse than any organized crime
ring. They will stoop to anything even to have a persons rights
taken away from them to protect their doctors and decision makers
from being subpoenaed and cross examined other oath. Anyone who does
not want the truth to come out clearly is hiding something.
