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November 20, 2006

20-year battle

Medical conflicts and appeals processes can stretch claims over decades


As a blind Medicine Hat man, Dan Darnell, fights for compensation, the government vows to forge ahead with a tribunal to help injured workers whose claims have been unfairly rejected.


As the government weighed how best to proceed with its promised contentious claims tribunal, Dan Darnell was dealing with a host of his own problems.

Darnell still had paralysis on his left side, and was legally blind. His life as a "rig pig" was over. "I went back to the WCB to ask them to look at compensation and they basically told me to get bent, that it had nothing to do with the accident."

By early 2001, Darnell was preparing to appeal that ruling. The case was sent to a medical review panel and Darnell says he was told by his WCB case worker she couldn't represent him at that level. He has since found out that isn't true, but at the time contented himself with making his own case.

"Like, I've got the white stick and I can milk the handicapped thing pretty good, eh?" he says self-effacingly. "So we walk in there and the first words out of this panel guy's mouth is 'you're just here for the money.' "

In fact, Darnell already got a disability pension through private insurance, one that fell $400 per month short of what he'd receive with full WCB disability coverage. "I looked at him and said, 'It's got nothing to do with money right now. It has to do with getting the proper rehab and training to get better.' At this point, I was still in a wheelchair.

"Ten minutes into the hearing, the doctor asks me how long I've been addicted to cocaine. And I said, 'Where the heck are you getting that from?' And he says, "Well, I read it in your file.'

It turned out that the doctor had read the wrong file. Darnell was not impressed. But he still had faith he'd get a ruling either way and could plan accordingly.

"But instead they came back and said they can't rule out trauma, but most likely it was a congenital issue, something I was born with."

The decision to turn him down for coverage stated it was based on "level five" evidence, which sounded like something significant to Darnell; he didn't know until much later that level five represents an educated guess. "One of the ways one of the WCB employees termed it to me at the time was, "Dan, it's like winning the lottery. It's possible, but is it probable?"

The WCB sent Darnell's file out for review by an independent consultant, who concluded there was as much chance it was caused by the trauma as congenital.

Additionally, Darnell researched his own family history and found no record of any other relative ever suffering from a similar aneurism. And he got one of Canada's foremost experts, Dr. Robert Sutherland, to agree with him.

It was 2006 by the time the appeals commission agreed, and overruled. Buoyed by the fact that WCB policy gives workers the benefit of the doubt when the medical evidence for or against a worker is equally divided, it ruled he should receive full disability benefits.

Although most of that money would go to his insurer to pay for the disability coverage it had shelled out to date, the ruling would also allow Darnell to access ongoing rehab help.

"In WCB's defence, there are still doctors who say they don't believe that AVNs can be caused by trauma,"says Darnell, who spent a decade to become a lay expert in the field of brain aneurisms. "But anyone who's reviewed the new literature sure does. And the point is, the medical panel said they'd reviewed all the evidence out there and "could find nothing" to support this. Well, I sure could, and I'm a layman."

With the appeal ruling on his side, Darnell planned to get back to rehab so that eventually he could get back to work. During the interceding years of sporadic employment, he and wife Nattie had to sell a house they'd bought for retirement income, close down a side catering business and remortgage their own home. He wanted the good life back.

"I don't believe I'm done by any means," he says. "I believe I still have the capability of being some productive member of society, instead of just giving up. If they give me the opportunity to retrain ...''

He tails off while talking about it. Then Darnell sighs. "All my friends are making $150,000, $200,000, $300,000 per year as consultants. And here's Dan, falling further behind. I'll never get my sight back. But five years ago I was in a wheelchair.

"Two years ago, I still couldn't really lift anything with my left arm. And I've done it all on my own. I've relearned how to do everything."

But his fight wasn't over. Far from allowing the full coverage, the WCB took Darnell to a judicial hearing at the Court of Queen's Bench, arguing its own Appeal Commission - by now a separate entity as suggested by the two provincial reviews - had no right to overrule the medical panel.

The court backed the appeals commission, and said the WCB should start paying full benefits. It has appealed again, and a trial date has been set for this January - almost 20 years after he was first injured.

The WCB won't discuss Darnell's case or specifics of any client files, citing privacy. But spokesman Jacqueline Varga said that on the odd occasion, "when mistakes happen, we act to correct them. We encourage claimants to contact us at any time to discuss questions or concerns. At WCB, a claim is never closed. If new medical or other relevant information arises, a review of the claim will be done."

Darnell knows his case is a 50/50 argument. But he wonders why, when WCB policy says the benefit of the doubt should go to the worker, he's still fighting. And why he had to do it in isolation, until an independent appeals adviser agreed to help him in 2001. And why, when an organization routinely runs surpluses in the millions of dollars, it won't just help him. He says he wants to feel like a person, not a precedent.

"They've just never seemed to care. When I was on the phone with case managers, they just didn't care. When I went to the medical appeal, they just didn't care. When I went blind and became paralysed, they just didn't care.

"But when I phoned Compensation and told them I was going to use an outside appeals adviser, they phone me five times in the next three days to tell me I didn't need the help.

"I understand you have to jump through hoops. I could even live with learning definitively that this isn't the WCB's responsibility, that it's a congenital issue. I just didn't think I would lose 20 years of my working life fighting every little thing.

"The highs and lows they've put my family through? I'll never drive again, so my wife does all of that. The mortgage on the house is back up to $90,000 and we had it paid off. If it wasn't for my own insurance, we'd have lost everything and I'd be on AISH or welfare.

"You have to err in favour of the worker. How can you not? In my mind, looking from inside the box of the person who's affected, I see myself being productive again. I'd drive a cab for a living if I could drive, I'd have good references. But so much is taken away now that I guess I'm grasping at straws."

- - -

While Darnell was preparing his appeal, the government was handing the findings of a tribunal into contentious claims management over to another three-member government committee, which was to look at the cost of it.

The 2002 cost review was essential, said then-Employment Minister Clint Dunford, as it was the last impediment to the tribunal.

Former Attorney General Jon Havelock earlier chaired a panel that decided only old cases involving no new evidence would be heard, and claims for under $1,000 would be reviewed by one-person panels via documents. That would massively reduce the potential pool of 24,000 claimants.

But there were still potentially thousands, and no firm estimate on how much the bill would be. "The issue of the cost of the review has not been resolved," said Dunford. "The government will not move ahead on this provision until there is consensus among stakeholders on how to pay for the review."

By that September, the three-person review committee had asked for another extension but was optimistic.

"We are on the brink of finding a workable solution to a very complex problem," said board member Denis Herard, a Calgary Tory. "It is worth spending some extra time to develop a process that most employers will agree on." They promised a report by the end of the month.

But it would be more than a year again before anyone would hear from the Alberta government on its audacious plan to do right by injured workers.

- - -

Skepticism was growing among the various injured workers groups that the contentious claims would never get a fair hearing. Darnell's adviser,Theresa Roper, was being flooded with hundreds of cases that involved irregularities and she was just one of many advocates facing the same.

"We're not talking about the odd incident. I can go through my case file and show case after case after case where the WCB has violated its own rules and operating principles again and again. So there was no doubt in any of our minds that the 'culture of denial' was a very real thing," she says.

Just ask Kevin Heikkila. The Calgary man has spent 15 years fighting with the WCB, ever since falling through a skylight and becoming a paraplegic. It initially advised Heikkila to sue his employer, saying the company wasn't covered by WCB. The company took that to the appeals commission and won, and Heikkila's suit was dismissed.

The company also won costs; when it came to picking up the $30,000 legal tab that resulted from its advice, the WCB balked. Instead, they left it to the paraplegic guy.

Over the years, many of his case managers have given Heikkila nothing but grief over his requests for help, right down to denying him coverage for a hand-operated bicycle and, when it finally gave him that benefit, denying him a headlight.

"I've always said things that were direct, straight to the point, full of integrity and nothing but the truth," says Heikkila. "But there is no empathy there. I've met with them at their offices and said to my case manager 'you're continuously trying to beat down the paraplegic guy.' I said 'I'm here to get from you things I'm entitled to under the law and you beat me down, again and again. And that's shameful. You should be ashamed.' "

The agency is proud of its record. "The quality of work of WCB case managers and the relationship with their clients is also reflected in audited performance measures, which have consistently shown that the majority of injured workers are satisfied with the fairness of the decisions," said Varga. "The rate has remained at 80% or higher for the past four years."

If not for a decision by prominent Calgary lawyer Bob Calvert to waive his fees, Heikkila's bill would be in the hundreds of thousands and he would be destitute.

"The WCB could've intervened and helped; after all, they were the ones who caused this mess. But they didn't. They could have offered legal assistance, but they didn't," says Calvert.

"And the WCB directors had the power in the legislation to look at the case and say the wrong decision was reached, and override the appeals commission. And notwithstanding starting this whole thing, they chose not to use that mechanism."

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