Bad Faith Proven:
After submitting proof and arguments that the WCB/WSIB knew that:
The WCB/WSIB took no action whatsoever against the employer for being intentionally deceptive, as well as failing to report a workplace accident. Instead the WCB/WSIB of punishing the employer they rewarded them with financial relief, which the WSIB calls SIEF. This is secondary injury enhancement fund. Basically, the employer was given 25% relief because the WSIB felt that my recovery was hampered by my what they claimed was DDD. However, I will later prove that people with DDD go on to live a pain free normal life and it is in fact the work injury that cause prolonged recovery.
This is my story of what happened when I was dealing with the WCB/WSIB decisions and the subsequent appealing the Fall of 1997 and winter of 1998 to the WSIB Appeals branch.
In Ontario, if an injured worker disagrees with a decision of the Ontario WCB, now called the Workplace Safety & Insurance Board - WSIB, they can appeal the decision to the now called the WSIB Appeals Branch.
This is suppose to be independent of the WSIB initial decision making process,
but one really wonders!
The WSIB Appeals Officer decided that a mediated agreement should be reached as opposed to a formal appeal. This I believe was due to the amount of overwhelming evidence proving that I did in fact have ongoing issues.
Filing of Appeal:
On January 5, 1998, I filed the objection form, or the actual Appeal. With attachments and a letter.
In the appeal, I stated I was claiming entitlement for the following:
Appeal Form Jan. /98
Click image to see enlarged copy of form
On April 17, 1998 Jeanet Lamoco of the WSIB appeals branch rendered a mediated agreement in the appeal. In the agreement, she sates I was represented by the OWA and the employer chose not to participate.
In the agreement, the following was determined:
The Appeals officer then listed what points were agreed to, but she never mentioned who the agreeing parties were:
Monique Rivard Letter – March 21, 1998
The letter was addressed to the WSIB and a copy sent to the OWA and my MPP. In the letter Monique explains she was the manager of the drivers, at the time of her employment with Action Force. She explains that I suffered a workplace accident & injuries on Feb. 6/97 and was off work. When I returned to work in April/97 it was modified work, which was just driving. Then there was a return to regular work which required physical loading and unloading, as well as driving, which was in May/97. She explains that upon my return to regular work I had taken several days off due to my work injury of February 1997. She went on to state that she left in mid-June 1997 and confirmed that I was hardworking and honest.
What is missing is what happened to me after Monique left her employment with Action Force. I would suffer subsequent workplace injuries, because of additional workplace accidents, which resulted in numerous days off work. Of which I reported all of them to my employer Action Force and Monique’s replacement Gregg and Todd. When they were questioned by the WCB on the telephone. Both Todd and Greg stated I never complained to them. They also never reported any new accidents. Yet, on July7, 1997, I reported to my employer Action Force (Todd & Gregg) as well as to Canadian Tire that I suffered a workplace accident and subsequent injury, of which I was off work. The employer never reported this accident and subsequent injuries to the WCB.
In the objection Form I had initially stated I would be representing myself, however in the process I learned of an agency called the Office of the Workers Advisor - OWA. Their job is to represent unrepresented injured workers. So, injured workers who are not represented by a union. They took on my case in April they sent a letter requesting access to the WSIB claim file, which is something that is needed to be done so any represented person can have a clear picture of what transpired in the claim.
The attached letter confirmed they had received access from the WSIB and I gave them authorization to represent me.
WSIB Appeal Decision Apr. /98
Click image to see enlarged copy of Decision
OWA Letter Apr. /98
Click image to see enlarged copy of letter
Specialist Letter Mar. /98
Click image to see enlarged copy of letter
Workers when they are hurt rely heavily on the knowledge of employers and their staff. Workers also rely heavily on the employer/ employee relationship where they have a sense of fear of retaliation if they report anything to the WCB directly. It was not until the Fall of 1997 that I reported directly to the WCB Mr. Baird. His response was it never happened if the employer never reported it. However, with the attached document this shows I did suffer an accident, furthermore Monique’s letter confirms I did take numerous days of work. It would not be much to infer that I did take time off for this accident.
Now remember he, as well as all documentation, states in describing the accident that I was struck from behind by objects (bins & boxes). So, it is not unreasonable to conclude that the accident wand subsequent injuries were much more serious that first estimated by the doctors and the WCB.
Furthermore, the WCB would later claim the damage to my back, which I believe was directly caused by the accident was the result of Degenerative Disc Disease – DDD. I was fortunate, I think, in that today the WSIB would completely disallow any benefits and claim that my recovery was my fault for having DDD.
This will become an interesting issue in the future. The WSIB will state that I have a permanent impairment (after three years not three months), but only a 14% impairment. It will become even more interesting as during the WSIAT hearing you will hear a panel member state that I should have received 29% at the very least and laughs because I didn’t get anymore.
Additional Appeal Submissions:
Letter Dr. Nguyen On March 11, 1998
A letter from a specialist Dr. Nyguyen was sent to the WSIB. In the letter, he explained that I had ongoing complaints in my lower back and lower limbs. He made mention of the x-rays he noted that “…were interpreted as normal, but [he] felt there was mild degenerative changes at L5 and S1 with slight retrolisthesis of L5 and S1”.
Retrolisthesis, or backwards slippage of a vertebra, is an uncommon joint dysfunction. A vertebra is a small bony disc that makes the vertebrae, a series of small bones that form the backbone. Each vertebra is separated by a cushion of intervertebral discs, which are made of cartilage. Retrolisthesis occurs when a single vertebra slips and moves back along the intervertebral disc underneath or above it. It’s not the same as a dislocation. If the vertebra slips forward, it’s called spondylolisthesis.
As I mentioned previously on February 6, 1997, I suffered a workplace accident and subsequent workplace injuries. The WCB accepted the workplace accident where I was struck in the head, neck and back from bins and other items. They also accepted an injury to my entire back, neck and head.
I was removed from work and attended physiotherapy treatment. In mid-April 1997, after a previous failed attempt to return to work, I again returned to work. Then on May 1, 1997 I was deemed by the WCB as fully recovered, however according to the physiotherapy discharge report, I had unresolved issues. This was to do with me being pressured back to work, by my employer and its client. In July 1997, I suffered another workplace accident and subsequent workplace injuries, but this time the employer failed to report it to the WCB. As a result, the WCB denied the accident and subsequent injuries ever took place. Well.... until recently at my Court of Appeal hearing.
In the Fall of 1997, the employer claimed I had not claimed any new accidents or that I had ongoing complaints from my February 6/97 accident and injury. As a result, the WCB denied entitlement to what they referred to as a recurrence of August 20, 1997. This meant they denied any benefits or medical treatment. The employer also refused to accommodate my disabilities claiming they did not have to.
The attached cover letter to the appeal decision was prepared some ten days after the decision was rendered.
This meant that the decision was not sent out until early May 1998, which then meant it would take the WSIB another month to issue payment. This meant that it was some nine months since the last day I had worked.
Supervisor Letter Mar. /98
Click image to see enlarged copy of letter
In the matter of release of medical information to the information I stated that I did not feel they should be allowed access to the medical information as it could be used against me in the future as it has bene used against me in the past.
In the attachment to the appeal I stated that I did have unresolved issues when I returned to work, but this was intentionally ignored by the WCB and their doctors. I was also concerned that their doctors never examined me. I also raised issue that they never discussed the medical issues with my family treating doctor.
I also informed the WCB appeals of the intimidation by the employer to force myself and another injured worker back to work before we were properly ready.
Sadly, this would be a first of many appeals to the WSIB appeals branch and to the WSIAT.
To skip what happened in 1998 with the WSIB and the employer and learn what happened next at the WSIB appeals in 1999 click here