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Wed, November 22, 2006

Not appealing

Critics charge that former employees on WCB board looks like a conflict of interest


The appointment of a fleet of former Workers' Compensation Board staff to the appeals commission is jeopardizing workers' rights to a fair hearing, says its former chairman.

But the appeals commission maintains it has hired the best people for the job, and that anyone who finds the process unfair has opportunities to have their complaints addressed.

Although the commission recruitment process was less formal in the late '80s and '90s, former commission chairman Rick Vermette says it was accepted that - even though the agency was within the WCB - statistics could demonstrate its even-handed approach. Injured workers routinely won more than 40% of their appeals.

Though the appeals process was technically separated from the WCB following critical reports in 2002, Vermette says the board has more involvement than ever, with nine former staff - including former case managers - appointed to commission positions.

Each of 16 full-time commissioners pulls in about $100,000 a year in salary and benefits, while 17 part-timers cost about $37,000 each annually. Vermette thinks it's time the government changed its appointment direction.

"They appoint former board employees to it, with no regard to the perception of a conflict of interest. They don't seem to worry about even the appearance of it, despite the (WCB-governing) Meredith Principles and the fact they're supposed to avoid even the appearance of a conflict."

One commissioner "was an actual case manager at the WCB, a DRB member and an advocate for business afterwards," says Vermette, now a labour representative for United Food and Commercial Workers local 401.

"I chaired panels for years overturning that guy at appeal. Now I'm supposed to present a case in front of him and expect I'm not going to have an apprehension of bias? This would never happen in a court."

Hearing chair Rifath Mohammed was interviewed for the job while still working at the WCB, notes NDP labour critic Ray Martin.

Another appointee, Calgarian Lynn Pelser Karch, was removed from her position after the WCB objected to her appointment. Karch is a former WCB employee who has had acrimonious dealings with the board.

Either way, Vermette notes, the decision "leaves the impression that the WCB has veto power over who sits as appeals commissioners.

"As an advocate and a member of the labour coalition for WCB, I ask myself why did the WCB not object to the other eight former WCB employees who were appointed as appeals commissioners?"

But appeals commission spokesman Douglass Tadman says appearances alone can't create a conflict. Within the law, there would have to be some evidence to back up the claim, and there is a judicial review process to review that evidence.

"Apprehension of bias is not a political concept, it's a legal concept and not to be based solely on suspicions that are more or less someone's imagination," said Tadman.

Additionally, he noted, a labour coalition representative, Karen Craik, sat on the three-person panel choosing the new commissioners and any objection "would almost certainly have resulted in that person's name being removed from consideration.

"The other aspect to consider is that former WCB employees, in the main, do not go from the WCB to the appeals commission directly. They have generally had successful careers elsewhere - sometimes within the appeals commission - before even being considered.

"The struggle for the appeals commission in recruiting is that we not only need highly qualified people, but it's also desirable that they have an actually working knowledge of the legislation and of our policies, which is extremely complex."

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