• Is there any file documentation that would suggest a WCB adjudicator (Case Manager, Voc. Rehab. Specialist, etc.) has abused his or her authority while handling your claim?

WCB would have injured workers believe that civil suits against its employees are not permitted by the courts. This is completely untrue.

 

It’s a little known fact that any WCB adjudicator that abuses his or her authority can be sued for damages for “Abuse of Public Office”. Rather than go into details here, readers will find information regarding this type of suit (including court rulings) on a stand-alone website I published here.

 

 

• Has WCB deemed you fit to return to work? Are you still medicated with narcotics, muscle relaxants, or antidepressants for the effects of your work injury? Do these medications cause impairing side effects?

Under Occupational Health & Safety legislation, employers and workers alike are required to practice proper due diligence in the workplace at all times. Workers impaired by medication can be a danger to themselves and to others and as such, have no place on any jobsite. Moreover employers can be held liable for any and all injuries resulting from such impairment, and can be subject to serious penalties, or worse, criminal charges.

 

Given employers cannot employ workers impaired by medication, clearly WCB has no right deeming these workers “fit” to return to work. However, like other WCB practices described on this page, an appeal will likely be needed to remedy the situation. If you’re a worker in this situation, you’ll find additional information on this subject here.

 

 

• Has your physician and/or specialist provided sufficient medical evidence, and do their reports adequately support your claim?

If not, then you should present these concerns to your physician(s) in writing, requesting any additional information you feel is needed.  Keeping in mind that all inquiries should be medical in nature, your requests should be as clear and concise as possible and presented in a cordial, professional manner. If indeed you receive information that is significant to your case, submit both request and response to your Case Manager for consideration. On the other hand  if your physician feels that he/she is unable to offer additional information in this respect, all is not lost (read on). 

 

Even if your physician provides additional information there is always the very real possibility of it having no affect on the Board’s decision. In this situation you should seriously consider locating, and presenting “peer-reviewed” evidence that supports your physician’s opinion. The following is a brief description of what peer-reviewed medical articles are, and their importance/value:

 

“Peer-reviewed medical articles, and the peer-reviewed medical journals that publish them, are important to ensure the integrity of the entire body of medical research. Health care professionals and pharmaceutical companies that deliver new treatments and remedies to the public also rely upon the process in their work to administer and develop new treatments.

 

The system for assessing the quality of research before it is published means that experts (or peers) other than the authors of a paper, check manuscripts for validity, significance and originality as well as clarity. Editors of medical journals draw on a large pool of suitable experts, respected researchers, scientists and practitioners with strong technical and scholarship credentials, to scrutinize papers before deciding whether to publish them.”

 

Source: patientINFORM.org

 

In short, “Peer-reviewed” medical journal articles pretty much have the last word in medical evidence. While the Board is at liberty to accept the opinion of a WCB doctor over that of a claimant’s physician, it is extremely difficult for the Board to do this when the opinion of the claimant's physician is supported with peer-reviewed evidence. The more peer-reviewed evidence a claimant presents, the more difficult this becomes.

 

The best place to locate peer-reviewed articles is at a university library, however some are also available at larger public libraries. The difficult part is not so much finding the right library, it’s finding the right article(s) to suit your needs.

 

There are 2 excellent resources for searching peer-reviewed articles online, which can be found using the links below.  Bear in mind however that you cannot review an entire article online. Instead, these sites offer an “abstract” of the article from which you can determine its value. Once you've found an abstract(s) that look promising, copy or print the reference information as this will be needed to locate the article at a library.

 

It should be noted that novice users of the sites below may find that numerous “search terms” are needed in order to find the desired results (e.g. a simple search for “C5-6 disc protrusion” will turn up hundreds of results… the search term “C5-6 posterior disc protrusion” will narrow down these results, etc.). In other words be as specific as possible, but don’t be afraid to experiment with words such as “cumulative”, or “sudden onset”. Bear in mind that while these sites are essentially designed for individuals with a medical background, injured workers with a fairly decent understanding of their injury/condition can muddle their way through this.

  

Medscape:

 

http://search.medscape.com/uslclient/searchMedline.do?src=Overture&OVRAW=medline&OVKEY=medline&OVMTC=standard

 

Pubmed:

 

http://www.ncbi.nlm.nih.gov/entrez/query.fcgi?CMD=search&DB=pubmed

 

 

• Is the WCB memorandum information regarding your telephone discussions accurate?

WCB memorandums are the author’s own interpretation of the information received, and they’re about as trustworthy as 3^rd party cheques. The information received is quite often altered, or embellished to a point where the truth becomes unrecognisable. As unreliable as these memorandum are, be advised that they are taken into account by appeal personnel and will be used against you if the need arises.

 

For this reason you should never discuss the particulars of your case over the phone. I can’t stress this enough. I fully understand the sense of urgency that a claimant can feel, and the desire to expedite certain processes, but you risk jeopardising the integrity of your claim if you insist on communicating with Board personnel in this manner. All information pertaining to your case should be submitted to WCB in writing, and you should request that their responses be written as well.

 

Short of providing your case manager with a written statement contesting any inaccuracies with memorandum information, there is no real solution to this problem. Although your chances of actually having this information retracted are slim to none, at the very least there will be documentation on file indicating that you’ve disagreed with it. Consider this a lesson learned, and refrain from such communication in the future.

 

 

• Are the WCB file copies of your physician’s reports date stamped as being received by the Board’s “Medical Services”?
• Is there any memorandum information on file indicating that your physician’s reports were received or reviewed by the Board's “Medical Services”?
• Has a WCB physician made reference to the information contained in your physician’s reports? 

If the answers to these questions is no, it’s unlikely that these reports were provided to the Board physician in charge of your case. This is a common tactic used by WCB.

 

As unbelievable as it sounds, non-medical personnel (case managers, appeal officers, etc.) are at liberty to decide what medical evidence is or is not relevant to your case. Be advised that these personnel routinely withhold medical and factual evidence from Board physicians, in order to obtain reports that are better suited to their purpose (i.e. to deny benefits).

 

Typically the information made available to Board physicians is preliminary in nature. This information may or may not include the initial report of the worker, employer, primary physician and/or specialist. Of course the Board’s non-medical personnel are also at liberty to include whatever misconstrued information they’ve documented (memorandums), as well as any unsubstantiated theories they may entertain. In cases where a claimant’s physician provides additional or updated information (including X-rays, MRI, etc.), the Board is known to withhold such evidence from their physicians. In other words, if the Board has already obtained a report from their physician that supports its position, it is not likely to provide any additional evidence that might change their physician’s opinion.

 

An effective way to determine whether information was withheld from the Board physician in charge of your case, is to simply establish a timeline. If your physicians provided additional or updated information after the date of the Board physician’s last report, and there is no file documentation indicating that these reports were received, reviewed, or commented on by this or any other Board physician, it’s a safe bet that they were not privy to this information. It’s also a safe bet that the additional/updated reports of your physicians contain significant information. 

 

If you determine there are reports that were withheld that would indeed have an impact on the Board physician’s opinion, it is recommended that you proceed in the following manner:

 

1. Present a written list of the omitted reports to your Case Manager requesting that they be forwarded to the Board physician in charge of your case. Be sure to ask for a written explanation in the event this is not possible. You may very well receive a response stating that these reports were previously taken into consideration, however do not be misled by this. Unless your CM specifically states that these reports were taken into account by the Board’s medical personnel, they were not given appropriate consideration. In this scenario I would simply move on to the next step.
2. Write a letter to the Board physician in charge of your case, enclosing copies of all omitted medical reports, and a full and frank explanation for your correspondence. As a Board physician will not respond directly to a claimant, request that his or her response be provided to your primary physician. In the event the Board physician is unwilling to respond to your concerns, or you are dissatisfied with the response you receive, move on to the next step.
3. Like all doctors, WCB physicians are licensed and regulated by the College of Physicians and Surgeons and as such, are required to conduct themselves in a professional and ethical manner. If a Board physician has provided an opinion that is clearly biased or inconsistent with the medical evidence made available to him, be advised that you have sufficient grounds to file a complaint against this physician with the College that licensed him/her. Filing such a complaint can result in the nullification of this opinion, thus adding support to your physician’s reports, as well as your case. You will also have the added satisfaction of knowing that you’ve sent a clear message to other Board physicians. 

For further information on filing a complaint with the College of Physicians and Surgeons, see Important Developments.

 

 

• Was/is there any communication between your physiotherapist and physician?  

WCB case managers will often agree with the recommendations of a physiotherapist over those of the claimant's physician, if it is better suited to the Board’s purpose. In many cases there turns out to be no communication whatsoever between physiotherapist and physician. The claimant unaware of this fact, is informed by the Board that non-compliance with the physiotherapy recommendations can result in a termination of benefits. The claimant assumes that he or she has no alternative but to accept this, sometimes putting his or herself at risk of further injury.

 

This is another common tactic used by WCB, and there’s a very simple and effective solution to this problem. The claimant simply needs to get both parties on the same page… Provide your physiotherapist with your physician’s reports, and visa versa. No physiotherapist wants to knowingly disregard the medical opinion or recommendations of a claimant's physician, as they too have a governing body (College) that licence and regulate them. Not unlike a physician, a physiotherapist can also be charged with unprofessional or unethical conduct.

 

Before WCB can enroll a claimant in any treatment program such as physiotherapy, tertiary, etc., bear in mind that they must first obtain the written approval of your primary physician. Be advised that your physician has the last word regarding all such treatments. 

 

_______________________________________________

 

  

If you have any questions or concerns regarding the preceding information/advice, please feel free to Contact Me.