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RSR ROBBINS Research - Canada Politics December 29, 2012
  Dec 29, 2012

Commentary
Glen P. Robbins 1355 Honeysuckle Lane, Coquitlam, BC V3E 2N6 The Workers Compensation Board of British Columbia, Main Building, 6951 Westminster Highway, Richmond, BC, V6B 5L5 Fax: 604 233 9777 Attention: Review Division WorkSafe BC, Long Term Wage Rate (Jennifer Madden), Disability (Livingston), Nicole Hough (Case Manager), Gerald Massing (Legal), Quality Control, Dana McKenzie (Board Manager in Charge), Vocational Rehabilitation (Matt Levy), WCAT Panel, And Attention: George Moffitt (Chair-Public Interest), Henry Harden (Health Care and Rehabilitation Representative), Phillip Legg (Worker Representative), Joe Lindgren (Employer Representative), Tazeem Nathoo (Public Interest Representative), Rick Roger (Vice Chair Public Interest Representative), Rick Roger (Vice Chair Public Interest Representative), Bob Smith (Actuary), David Anderson (President and CEO), Brian Eriksen (Senior Vice President and CFO), Roberta Ellis (Senior Vice President, Human Resources and Corporate Services), Diana Miles (Senior Vice President, Operations), Pamela Cohen (Vice President and Chief Review Officer), Nancy Harwood (Acting Vice President, Private Services), Donna Wilson (Vice President, Industry Services and Sustainability), Ian Munroe (Vice-President, Marketing), Ed Bates (General Counsel and Secretary to WorkSafe BC), John Panusa (Director of Governance). And Attention: The Honourable Judith Guichon, OBC Lieutenant Governor of British Columbia, 1401 Rockland Avenue, Victoria, BC, Canada V8S 1V9 Fax: 250 387 2078; Mike de Jong Government House Leader c/o Office of the Speaker, Parliament Buildings, Victoria, BC V8V 1X4 Fax: 250 387 2813; Government Opposition House Leader c/o Office of the Speaker, Parliament Buildings, Victoria, BC V8V 1X4. And To: psmith@sfu.ca; baier@politics.ubc.ca; aheard@sfu.ca; mattjames@uvic.ca; summervi@unbc.ca; Shane Simpson Opposition critic for Labour (BC NDP)
Dear Sirs and Mes Dames Re: Claim No. 09106830 -Long Term Wage Rate Section 96.4(8) (b) on Review
After private legal consultation regarding the above captioned, and to my correspondence to various parties and agencies within the WorkSafe BC structure over the past few weeks, months and year, I am writing to provide the opportunity to resolve this matter without further cause of damage to the writer (the Worker), or otherwise to serve Notice. Mediation is reasonable and is alleged to be a cornerstone on new Justice policy initiated by former AG Mike de Jong. As is abundantly clear, this matter moved forward from a “reckless” decision of long term wage rate person Jennifer Madden whose neglect on the file and “reckless” bad faith from her superiors and other co-workers is historically well documented. The worker believes this action and conduct was pre meditated with a view to their concern that the injured Worker’s circumstances and the Workers Compensation ACT and specifically section 33.3 (b) of the ACT held for a much higher long term wage rate than the one WorkSafe BC unilaterally advanced, and would have significant implications for compensation to the injured worker and ultimately to his pension payments in the event that vocational rehabilitation was unsuccessful which has proven to be the case. WorkSafe BC had to have been aware that the Worker would be owed tens of thousands, if not hundreds of thousands in retroactive compensation owed as at today’s date, and a total value of between $650,000 to $780,000 future value payments through Loss of Earnings Pension until retirement with post age 65 rates applicable thereafter.
The Worker thoroughly exhausted vocational rehabilitation efforts between June 2012 and November 2012. The Workers Compensation Act clearly specifies that in these circumstances a Loss of Earnings Pension must be calculated using the long term wage rate deducted from the meat chart schedule. The Long Term Wage Rate effects many elements of compensation and the impact of the pre meditated actions of the Board long term wage rate department have been economically and emotionally devastating to the Worker. The fact that there isn’t a fair and lawful long term wage rate yet established has unduly delayed retroactive compensation to the Worker from January 2009 (the date of the serious workplace injury nearly 4 years ago) and the current plateau date (determined as August 15, 2010) and appealed to WCAT under expedited appeal to be around November 2012. The only legitimate long term wage rate submissions provided to date are from the Worker which would generally presume a retroactive payment from January 09 to August 2010 of $55,000 rounded (gross $$). If the plateau appeal from WCAT concludes a date of November 2012 than this presumes a gross retroactive payment of ($187,500). The retroactive Loss of Earnings pension alternative from current plateau date of August 15, 2010 to today’s date based on the Workers loss of earnings submissions would be $65,000 per year or $130,000 (net dollars based on the maximum). The current {ultra vires} long term wage rate determined by WCAT to be sent back to the Board, (who has failed to act, folded into a Loss of Earnings Pension from August 15, 2010 would call for a net payment of approximately $50,000).
The difference in current dollars between the long term wage rate established through what the Worker asserts is a constructive fraud by The Workers Compensation Board and the long term wage rate from his submissions which modestly match the section of the law produced by the BC Legislature in 1996 and current to December 5, 2012 is about $135,000, sufficient motive the Worker asserts for the allegation of constructive fraud. The Labour Minister Pat Bell and the BC Justice Minister Shirley Bond are both well aware of the facts.
Synopsis of Background: The Worker sought a Reconsideration and Appeal to WCAT with regard to a unilateral assessment of long term wage rate in March 2011. The Work Safe BC legal department along with Quality Control decided to provide WCAT with jurisdiction with respect to the long term wage rate. The Worker had no role or say in any of this. This decision is evidenced through letters on official letterhead and from emails and other provided through Freedom of Information. The WCAT Panel could have opted not to take custody of the long term wage rate matter at the beginning (June 2011), but instead chose/elected to take custody of the matter as is evidenced by their letter(s) to the Worker asserting as much. WCAT is alleged to be separate from the Board as an appeal body and superior in its administrative authority to Reconsideration or any other appeal at WorkSafe BC. The WCAT Vice Chair Leroy determined in her October 24, 2011 decision to send the matter back to the Board who would make a decision in “due course”. This decision was final. Since that time contradictory (“reckless”) correspondence has been sent to the Worker from the legal department of WCAT, on one hand blaming the Board (The Workers Compensation Board) and on another hand blaming the Vice Chair (WCAT). {This correspondence supported by evidence from WorkSafe BC legal department and Quality Control affirming seamless communication between WorkSafe BC and WCAT might undermined the assertion of absolute separation of the two bodies}. Later information was provided that perhaps Review could deal with the matter if an extension for time was sought. All of this would appear to any reasonable person to be a type of administrative bullying by both the Board and WCAT to an injured worker in need of timely compensation.
The Worker filed a complaint with the BC Ombudsperson over one year ago with respect to the long term wage rate, and to the BC Ombudsperson Kim Carter personally. Both Letters and Freedom of Information Requests producing emails between WorkSafe BC employees (agents) acknowledge that the BC Ombudsperson was completely and unequivocally aware of all matters pertaining to the long term wage rate problem of March 2011 including the fact that a unilateral decision was made on the long term wage rate by Jennifer Madden without including submissions or allowing for total submissions from the Worker, after the employer Veolia elected not to provide a wage rate as required under section 33.3 (a). This decision by Madden was not in compliance with the statute requirements of 33.3 (b) which demands a wage rate from a person in the region and not in the province, and which demands a Worker rate from a similar classification. The BC Ombudsperson elected to ignore the law and did nothing about the complaint when they knew or ought to have known that the complaint deserved a full investigation as it breached the statute prepared by the BC Legislature. The existing long term wage rate does not satisfy the statute in any regard of the classification (including union classification as the Worker paid union dues and worked on a union site) or more specifically the region instead producing an erroneous cull from the province as a whole. The Worker was working at both Shell and Chevron Refineries prior to his serious workplace injury and was on the Chevron Refinery site when injured. This information was well known to the WorkSafe BC Board who thoroughly investigated the matter.
At this stage after exhausting the avenues of Fair Practice (“we can’t go against the Board”) and the BC Ombudsperson and to feedback from WCAT that “sometimes the Board can take as long as a decade to take action on a direction from WCAT”, the Worker looks in the New Year (2013) to file a Requisition with the BC Supreme Court including affidavit and documents in support seeking an Order for (a) Long Term Wage Rate; (b) Loss of Earnings Pension; (c) Specials Costs; (d) Contempt Citation against various parties including the WorkSafe BC Board of Directors, WCAT, the Minister of Labour Pat Bell, the Minister of Justice Shirley Bond, and Lieutenant Governor of British Columbia on behalf of the BC Legislature. The Worker will see out a sponsor of the contempt citation in the BC Legislature for the spring sitting or investigate alternative strategies in this regard. Quite obviously there is sufficient evidence to suggest that specific policy trumps the law in the Province of British Columbia, and that due process including the complaints process is worthless. The Worker also notes with emphasis that the Workers Compensation Act calls for the deduction of EI, CPP and Income Tax monies from injured Workers compensation but does not provide these deductions to either the Federal Government of Canada or to the Provincial Legislature. Obviously the entire Provincial Government of British Columbia is in contempt as these Workers deductions for provincial income tax alone account for hundreds of millions of dollars which on their own would stamp out the current deficit. The WorkSafe BC Board and employers submit that rates are going up for employers – who then is actually benefitting from these lawful deductions? The Worker doesn’t, and the respective federal and provincial governments do not.
Has WorkSafe BC become a type of BC Hydro like cash cow for government revenues?
This letter will now deal with and extinguish the relevance of the most recent attempt by The Workers Compensation and/or WCAT to distract from due process and the Worker’s right specifically as this deals with its/their contention that a request for extension for Review might be sought. Independent legal advice has made it clear to the Worker that Section 96.4(8) (b) is ultra vires this process. This section of the Workers Compensation Act states: “(8) The Review Officer may make a decision (b) referring the decision or order under review back to the Board, with or without direction.” What this means is that the WCAT Appeal through Vice Chair Leroy has accomplished what they had the authority to do. What Review division might have done under Section 96.4(8) (b) is a moot point. WCAT is a higher and (alleged) separate appeal, so the October 24, 2011 WCAT determination basically echoed what Review Division could have done under Section 96.4(8) (b). WCAT was in effect the de facto Review Division in the context of considering Section 96.4(8) (b). Why does the Board continue to ignore the directive of WCAT? Was WCAT’s assertion that the Board ignores it’s final directives for years with impunity correct even though a WCAT decision unchallenged by Judicial Review is as good as if a BC Supreme Court Justice had made it? Doesn’t this make The Workers Compensation Board of British Columbia including its current directors in contempt of a BC Supreme Court Order? Doesn’t the fact that the Ombudsperson BC’s office failed to properly investigate ultimately make the BC Legislature in contempt?
What this also means insofar as due process is concerned is that Review at the Board level is not a necessary ‘cure’ of this administrative breach created by the long term wage rate unlawfully created by wage rate officer Jennifer Madden. The first legal administrative step in the ‘cure’ to the breach was the October 24, 2011 decision of WCAT Vice Chair Leroy. The Board ought to have “in due course” cured the deficiency itself which it has yet to do. This administrative cure has been in front of the Board and long term wage rate for 14 months. The Worker has already sought and obtained original documents and other for filing at the BC Supreme Court. The Worker notes that he was contacted by WCAT a number of weeks ago and asked if he had filed the documents at BC Supreme Court yet. The Worker has already cited Caselaw before the BC Court of Appeal as “Taiga Works Wilderness v. Director of Employment Standards”, 2010 BCCA 364 (2010), Court of Appeal before: The Honourable Justice Low, Justice Tysoe, and Madam Justice D. Smith. The Worker has already cited case law and other academic study refuting WorkSafe BC legal counsel Gerald Massing’s PCBC court Reply under Action No. C13052 filed July 19, 2012 which citations provided to the Board legal department included “Statutory Immunity: A Discussion Paper – Administrative Justice Office Ministry of Attorney General Province of British Columbia, Victoria, BC”. Quite clearly this information along with the other citation provided Moral Damages and Exemplary Damages: The Supreme Court of Canada clearly establishes that when behavior is deemed to be “reckless” there is NO immunity for civil damages. The specific case of Finney v Barreau du Quebec (The Law Society of Quebec) was just such a case.
The employer refused in March 2011 to provide information with respect to the long term wage rate which is its’ right. The employer provided misleading information with respect to the wage rate in March 2009 which is not its right and the employer has been put on Notice that the Worker deemed this action to be “reckless”. The Board made a unilaterally decision (mistake) ignored submissions from the Worker which is the Board’s fault. Jennifer Madden’s decision on long term wage rate neglected the factor of a similar worker who is also a union worker, did not have the correct classification, and did not compile information from the region as required by law. She ignored the law. Most importantly she ignored the Workers submission which was within his statutory right to provide. The worker’s submission included the lowest classification available. The Worker provided submissions from CUPE (Burnaby) at $30.00 per hour inclusive of benefits, and from Chevron Refinery (where the Worker was injured) beginning at $32 per hour exclusive of benefits and $40 per hour inclusive of benefits. The Worker has also cited Shell Refinery (Burnaby) where he worked also a union facility (similar classification working for 12 months – 3 months equals the union).
The Worker provided the Burnaby CUPE agreement to Jennifer Madden in March 2011 which the Worker believes was purposefully ignored in order to deny the Worker proper payout of long term wage rate under the law, and with it’s concerns that a Loss of Earnings payout could amount to $65,000 per year until retirement age. The Worker has also provided all persons for whom the information is relevant including The Workers Compensation Board of BC, its legal department, its Board of Directors, the Board managers, WCAT, and WCAT legal department of the information under the Chevron collective agreement. Shell has a similar collective agreement as does Chevron. Shellburn Terminal and the Canadian Auto Workers (local 114) (expiring 2010) provided the following base rates for labour (while my classification was more specific). At Shell the beginning wage rates were ($31.56), ($31.65), ($31.95), and ($34.71), ($33.41) per hour after 30 months. These wage rates are for work less specific than I was doing and do not include vacation pay, overtime available for 12 hour shifts (similar to employer Veolia where overtime work is significant) plus dental and medical. These rates conform to Chevron rates in the same region, where I suffered the workplace injury to my spine and to my right knee which required total knee reconstruction. The Worker provided Gerald Massing legal department of The Workers Compensation Board of British Columbia with a settlement wage rate of $32.00 under the BC Supreme Court Rules and has not heard back from Mr. Massing. The October 24, 2011 WCAT decision included a decision relating to both the right knee plateau date (post surgery) and relating to the long term wage rate (still outstanding). A WCAT decision is equivalent to a BC Supreme Court decision.
My outside professional opinion has determined that 96.4(8) (b) makes any further consideration of this matter by Review redundant to the decision of Vice Chair Leroy and is thus not a factor as has been intimidated by reckless legal comment to date (WCAT). The WCAT decision sent the decision back to the Board on October 24, 2011 and the Board ignored the decision. The Board ought to have taken custody of the matter on October 25, 2011 and properly set aside its own information on long term wage rate as it did not properly comply with 33.3 (b) of the Workers Compensation Act. Information already provided to the Board legal department and reiterated herein establishes that Jennifer Madden’s long term wage rate was ultra vires the statute. WorkSafe BC has not offered anything to refute this. The Board ought to have properly considered the submissions provided by the Worker which the WCAT decision affirms by sending its decision back to the Board. The Worker provides the Board with 7 days to institute a new long term wage rate based on the relevant submission in compliance with the Act that he has provided and thereafter asserts that the Board’s refusal to comply with the determination of the Panel at WCAT of October 24, 2011 within that time frame would provide WCAT with the legal capacity to on an extraordinary basis make its own determination on the long term wage rate with interest and penalties to the Worker’s credit whilst it is working on an expedited determination relating to plateau date.

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