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Fri, August 3, 2007
WCB overhaul called for
Thousands of contentious claims
By JEREMY LOOME, LEGISLATURE
The Workers' Compensation Board has lost another round in
its longstanding fight to deny benefits to a former WCB employee, one more
reason why it needs to be reviewed and overhauled, say critics.
And according to a panel of appeals judges, the agency's
appeals commission not only had no legitimate argument for cutting off Thomas
Shuchuk's benefits, it actually used legislation designed to make benefits more
available as one excuse for why Shuchuk should be cut off. The court has
ordered the case back to the commission for another benefits review.
The former city man suffered a head injury in 1992 that the
WCB initially agreed caused ongoing psychiatric and psychological difficulties.
They fired him a year later while he was on medical leave, and attributed it to
restructuring. Three years after that, in 1996, the WCB decided Shuchuk was
conning the agency and cut him off, accusing him of fraud and saying the
continuing psychological difficulties were not plausible.
Three years later, in 1999, the WCB appeals commission
ruled Shuchuk had suffered a mild brain injury and should have his benefits
But it refused to cover his medical bills for the period
during which he was cut off, leading to a dispute over further medical
assessment, and he was cut off again, only to have the benefits reinstated once
more just months later.
Arbitrarily, according to the court rulings, the WCB then
cut him off again in 2001 and said he was no longer entitled to benefits for
any period after 1996. It suggested his problems were an emotional reaction to
his accident, and not due to the head injury.
Big mistake, according to a Court of Queen's bench judicial
review, followed by last month's supporting decision by the Court of Appeal.
"The Commission's analysis is unreasonable because it
limited coverage by relying on factors that the policy requires be used to
extend coverage. Limitation of coverage by relying on factors that the policy
suggests be used to extend coverage is clearly unreasonable, and the commission
acted unreasonably when it included Shuchuk's emotional reaction to the
treatment process as one of the factors that had overtaken the accident," wrote
Justice Keith Ritter. "In fact, on any standard, the Commission erred."
The agency won't comment on Shuchuk specifically. But it
did say that "compassion and fairness are integral parts of every decision we
make," according to spokesman Dayna Therien. "However, entitlement decisions
also have to be grounded in the facts of each case, in our policy and in the
status of the Workers' Compensation Act."
The commission was obligated to appeal the earlier judicial
review finding because "we had an obligation to clarify the decision and
jurisdiction of the judicial review judge and to ensure accurate and consistent
application of policy and legislation."
The decision is just the latest in decades of reasons why
the WCB needs to be fully reviewed and overhauled, said NDP critic Ray Martin,
including the government's commitment to - then flip-flop on - reviewing
thousands of contentious claims dating back to the mid-1980s.
see the Edmonton Sun's series, a
expose of the Alberta WCB by Jeremy Loome
discussion of Shuchuk case
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