Part 2 of How the WSIB is Failing the Injured Workers of Ontario
By Samantha Ponting
On Dec. 3, a group of injured workers and their allies gathered in front of the Ontario Ministry of Labour on University Avenue in Toronto to demand action on medical coverage for injured workers. The workers handed out band aids to passing pedestrians to garner attention.
“Unfortunately there were no migrant workers there today because a lot of them have been repatriated,” says Jessica Ponting, a community legal worker with the Industrial Accident Victims Group of Ontario.
In Part 1 of this series, RankandFile.ca explores how the Workplace Safety and Insurance Board (WSIB) has inadequately compensated injured workers, while favouring employers through frozen premiums, premium rebates, insufficient medical evaluations, and expanded WSIB assessment centres.
In Part 2, we explore how the WSIB system affects migrant workers. While migrant workers in Ontario are eligible for benefits under the WSIB, systemic barriers are preventing them from receiving adequate medical attention for workplace injuries. In many cases, injured migrant workers are repatriated before receiving healthcare treatment for their injuries.
Deeming away benefits
Deeming is the process by which the WSIB “deems” that a worker is fit to work in a particular job as an alternative to the job worked before an injury. This process is used to reduce or eliminate loss of earnings benefits provided to injured workers.
For Ontario’s migrant workers, the ins-and-outs of deeming run along decidedly absurd lines.
Unlike other Ontario workers, migrant workers cannot work in alternative employment posts because their work permits are tied to a specific employer. They have no labour mobility.
While the employer may provide modified work in some circumstances, in many cases, the employer will refuse to do so. THE WSIB may tell a migrant worker that they no longer qualify for compensation because they are fit for modified work in another workplace. Their benefits are then cut.
The repatriation of injured migrant workers
When a migrant worker is injured on the job, they can be repatriated almost immediately, says Ponting.
When a migrant worker is deported, regardless of whether or not they have suffered a serious and permanent injury, the WSIB’s policy is to provide just 12 weeks of benefits.
In contrast, domestic workers are not subject to benefit caps. If a worker is injured on the job and unable to fulfill modified work duties, the WSIB is, in theory, required to provide healthcare and benefits until that person has reached “maximum medical recovery.”
This refers to when a worker’s condition has stabilized, and the worker is not going to recover anymore from additional treatment, says Ponting.
She says it can take between 18-24 months for a worker to reach “maximum medical recovery.” At this stage, the worker is provided with a vocational assessment and retraining for a new form of employment, during which time the worker receives full loss of earning benefits.
Repatriated migrant workers do not receive such healthcare or retraining.
“Migrant workers hardly ever get compensation,” says Ponting.
Migrant workers are commonly discriminated against for medical reasons. In a study conducted by University of Toronto researcher Dr. Aaron Orkin, it was discovered that between 2001 and 2011, 787 migrant farm workers lost their jobs and were deported to their home countries for medical reasons, largely against their will, in a process called “medical repatriation.”
In three cases, 3 female workers were fired and deported because they became pregnant.
While such cases may not always involve workplace-related injuries, the findings highlight how migrant workers have little access to justice under the Ontario Human Rights Code. This, in turn, affects migrant workers’ ability to seek justice through the WSIB system.
Impeded Access to the Ontario Human Rights Code
The Ontario Human Rights Code says an employer can’t discriminate against a worker based on disability, injury or sex (including pregnancy), among other prohibited grounds.
While all workers in Ontario are covered under the Ontario Human Rights Code (OHRC), it’s a complaint-based system.
For a worker who has been speedily fired and repatriated, access to justice under the OHRC is nearly impossible.
“It’s very difficult to make a complaint from Mexico or Jamaica, especially if you don’t know your rights,” says Ponting.
“Unless there has been some kind of intervention from a human rights group, it’s almost impossible to file a human rights complaint from Jamaica. It’s because of groups like Justicia or labour unions that workers are able to at all.”
Expedited claims for migrant workers
The WSIB has a practice of expediting claims if the injured worker is a migrant worker.
“The reason that the WSIB expedites cases is because employers can send a migrant worker home at any time,” says Ponting.
Migrant workers under the Temporary Foreign Workers Program (TFWP) rely on their employer’s ongoing sponsorship for employment and, by extension, the right to remain in Canada.
She says, “The WSIB should not be so compliant with the repatriation of injured migrant workers. The WSIB should give migrant workers the means to stay in Ontario for healthcare.”
If a migrant worker is injured on the job, while they are entitled to benefits under the WSIB, the migrant worker’s ability to claim these benefits diminish if the worker is repatriated.
“Almost all migrant workers go to a regional evaluation centre (REC) and they are expedited.”
Regional evaluation centres and access to healthcare
Migrant workers have limited access to healthcare outside of the WSIB system. Temporary foreign workers are covered under the Ontario Health Insurance Plan (OHIP), but are subject to different waiting periods. For seasonal agricultural workers, OHIP is automatically terminated on Dec. 15 every year, and OHIP is contingent on an ongoing employment relationship.
“Employers can contact OHIP or the Canadian Border Services Agency (CBSA), and if the employer wants to cancel OHIP coverage, they can,” says Ponting.
According to Ponting, many migrant workers fear that if they seek medical attention for a workplace injury, they risk deportation. With deportation, workers could loose access to the healthcare that is accessible. This is a particularly grave concern for workers that come from countries with private healthcare systems.
“There is hardly ever testing – no MRIs, no CT scans – because they don’t have doctors to arrange them. Their healthcare is dependent on these RECs, which are really just assessment centres, not healthcare centres,” says Ponting.
The REC establishes a recovery timeline for an injured migrant worker.
While migrant workers are entitled to receive benefits under the WSIB if their claim is approved, “there are a lot of administrative barriers,” says Ponting.
All workers, although particularly injured migrant workers, may be subjected to claim suppression. Claim suppression is when the reporting of a workplace injury is actively discouraged or hampered by an employer. Because migrant workers depend on their employer’s sponsorship to remain in the country, they are particularly susceptible to intimidation and harassment.
Under the WSIB’s system, if claims are filed late, or if there is incomplete information from the employer, claims are less likely to be approved.
The WSIB incentivizes claim suppression through its experience rating system. Through this system, employers are provided with either rebates or surcharges depending on the costs of claims filed under that employer and their rate of injuries.
The largest factor affecting employer premiums under the experience rating system is a worker’s lost time due to injury.
Loss of earnings payouts are the most expensive cost to the insurance system, says Ponting. As a result, workers face extensive pressure from the WSIB and employers to return to work.
A recent report released by the Ontario Federation of Labour discusses the implications of “claim management” on workers. According to the report:
“Claims management is similarly costly. This is when employers take an adversarial approach towards injured workers’ claims so as to limit claims costs and it may include accusing injured workers of malingering or exaggerating their symptoms, appealing meritorious claims, hiring private investigators to surveil injured workers, withholding supportive evidence, pressuring injured workers to return back to modified work before they are ready, assigning the worker to meaningless and demeaning jobs, and terminating injured workers’ employment once further claims costs would no longer affect their premiums.”
The WSIB’s experience rating system has been heavily scrutinized by injured workers advocates for breeding conditions for harassment and intimidation in the workplace. While all workers are affected by this, its migrant workers who have the most to loose when reporting workplace injuries.
WSIB: Ontario’s newest spy agency?
Under WSIB President David Marshall, the WSIB has been railed for its controversial practices surrounding worker surveillance.
“There are reports that the WSIB has been putting ‘claim adjusters’ on clients –people hired by the WSIB to follow workers,” says Daniela, a member of the Injured Workers Access for Justice (IWAJ), who asked that her last name not be disclosed. “They put people under surveillance without notice.”
“They are investing money into efforts to prove wrong the injured people, without putting any effort into healthcare, into making them better, or into making workplaces safer,” she says.
This year, the Toronto Star reported that the WSIB has hired private investigators to watch injured workers. According to internal documents obtained by the Star, “language barriers,” “psychological problems,” and “anti-social behavior” are among the WSIB’s grounds for selecting surveillance targets.
Such practices have raised questions surrounding how organizational protocols may discriminate against immigrant workers and workers with mental health conditions. The practice also raises serious concerns surrounding privacy.
What is to be done?
It’s disgraceful that so many migrant workers are only welcomed into Canada as long as they are able to fulfill the precarious, often dangerous work Canadian employers assign them. Once a migrant worker is injured, our system discards them.
Workers are sent back to their home countries with injuries that in many cases, leave the worker in a more precarious economic situation than when they arrived to Canada. Meanwhile, employers are held largely unaccountable for these injustices.
Injured migrant workers should be given the choice and the means to remain in the province for healthcare, and should be entitled to benefits beyond a 12 week period following repatriation.
To meet its obligations under the Workplace Safety and Insurance Act, the WSIB needs to take the healthcare needs of injured workers much more seriously.
In 1990, legislation was introduced that eliminated for injured workers life-long pensions for life-long disability. Workers today are forced back to work without receiving adequate healthcare for their injuries.
The WSIB must adequately fund the diverse medical needs of injured workers, including physiotherapy, medications, medically-related travel expenses, assistive devices, and mental health needs. It must respect the advice of independent medical doctors and collect sufficient information before denying a claim.
To adequately fund healthcare for injured workers, the WSIB must raise premium rates as necessary, and end the practice of providing rebates to dangerous employers.
According to the OFL’s report, there is, “at best, only modest evidence” that the experience rating system reduces workplace accidents. Premiums should instead be based on the actual safety of a workplace, since the WSIB’s experience rating system intensifies the adversarial nature of employers when they confront workplace injuries.
Historically, the Ministry of Labour has taken a fairly hands-off approach to overseeing the policies and operations of the WSIB.
Under David Marshall’s leadership, the WSIB is becoming increasingly unaccountable. In 2011, Marshall was given the power to modify most WSIB policies without first obtaining approval from the WSIB’s board of directors. Other major governing issues with the WSIB run deep, and can’t be changed overnight.
Yet the WSIB is a public agency that needs to be acting in the public’s interest, not the employer’s interest. Only when employers are forced to pay the real costs of workplace injuries will our workplaces become safer.