The WSIB’s horrific practice of deeming
By Zaid Noorsumar
In September 2007, Mark Winegarden damaged his vertebrae while working as a paramedic in Simcoe County. Attending an emergency call, he had to carry a cardiac-arrest patient down the staircase of his home when he felt a ‘pop in his back.’ His life would never be the same.
“The surgery itself worked out okay but there were complications. It’s basically a mass of scar tissue at the back of my spine,” Winegarden says.
“Because of that I’ll be stuck with my nerves being compressed in that area, which causes extreme pain from my beltline down which I control with large doses of morphine to get by.”
In the first few years since the injury, Winegarden was able to rely on the support provided by the Workplace Safety and Insurance Board. He received his injured workers’ compensation cheques on time, his medication was covered and his WSIB case manager helped him come to terms with living with his aggravated condition.
But in 2012, WSIB abruptly canceled his claims on the pretext that his layoff was related to a ‘pre-existing condition.’ Frustratingly, for Winegarden, the assessment was made by a doctor who had never met him. Challenging the decision through an appeals tribunal, he was eventually vindicated in 2015 after a painfully lengthy process.
“My physicians wrote quite a detailed report that became part of my tribunal hearing,” Winegarden says. “And in the end, the adjudicator at the tribunal said ‘Well, I put more weight to the doctor that looked after Mark than the doctors who never touched Mark.’”
That should have been the end of Winegarden’s frustrating saga with WSIB. But then, despite having his claims reinstated with retroactive pay, he was struck by ‘deeming.’
When Ontario’s injured workers are confronted with the WSIB practice of ‘deeming’ the board determines the type of employment a worker would be capable of acquiring despite their injury.
It then assumes that the worker is employed full-time in that line of work, and deducts the pay that they would be receiving, from their injured workers’ compensation.
On the surface, this may seem like a reasonable practice, which can prevent workers from taking advantage of the system. It can also be seen as encouraging injured people to make the most of their capabilities. But the implementation of this policy is dysfunctional.
In Winegarden’s case, the WSIB believes he is capable of working full-time as a customer service representative and slashed his compensation accordingly.
But the former paramedic has a debilitating back injury. He describes the sensations of his frequent pain akin to “standing in a hot tub of burning oil.”
A daily dose of morphine is a necessity, and that’s on good days. On particularly bad days, an additional dose of fast-acting morphine provides immediate relief for the man who doesn’t like taking drugs.
But the drugs help. If only allowing for a few hours of normalcy a day, like making it possible for him to take a walk. Except, every activity comes at a price.
“The more I do everyday, the more pain I have right then and the more pain I have later on until I give the nerves a chance to settle down,” he says. “(To settle the nerves down) I have to lay motionless in a very specific position so I have to have my legs elevated by about 15 degrees and lay completely still.”
But the pain doesn’t allow him to sleep. Each day is characterized by the familiar daunting option – will it be a day spent doing nothing or will there be any form of physical exertion? The latter choice holds consequences.
Clearly, employment is not an option for someone who agonizes over whether walking from the grocery store to the parking lot will be a step too far. And despite his physician having established as much, the WSIB deems otherwise.
But what about when such gross unfairness doesn’t take place, when workers are not disabled to the point where work is virtually impossible. Surely the practice of deeming makes sense then? Besides, workers receive help to reintegrate into the job market.
“The WSIB provides return to work services to assist people in securing and returning to suitable and available work,” says Christine Arnott, WSIB spokesperson.
Arnott, responding over email, highlights the board’s offerings such as “vocational skills training, English as a second language training, placement and job retention support and relocation assistance to secure employment.”
John McKinnon, from Injured Workers Consultants Community Legal Clinic (IWC), is not impressed, based on his organization’s dealings with marginalized workers.
“It’s a great sound bite. And technically it’s accurate,” McKinnon says. “One problem is they are supposed to assist people in returning to suitable and available work, but they are very poor at determining what is suitable and what is available.”
Laura Lunansky, from IWC, cites the stigma associated with disability as one of the challenges not factored into WSIB’s policies.
“If you think about somebody walking into a store in with their cane, they’re going to have a much harder time securing a job than someone who walks in without. So it’s not as simple as can work versus can’t work,” she says.
“It’s a system that assumes full-time employment, 40 hours a week, in jobs that don’t exist, or don’t exist on a full-time basis,” Lunanksy says. “And it doesn’t take into account the fact that these are people who are not fully able-bodied.”
Lunansky also points out that even as Ontario’s workers will be collectively better off with the imminent passage of the Fair Wages, Better Jobs Act, which injured workers groups support, it could negatively impact injured workers who are subjected to deeming. As the minimum wage goes up to $15, WSIB will make deeper cuts to injured workers’ benefits. This highlights the flawed practices of the compensation board and needs to be addressed.
Injured Workers Consultants estimates that about 82,000 workers have been wrongfully deemed since 2007. The organization’s cautious estimate is based on tabulations using data from WSIB’s website. The board doesn’t release figures on the number of people who are deemed employable despite their injuries.
According to WSIB, 86% of the people who complete its work transition plan to find jobs.
But McKinnon is skeptical about how many people actually complete the program, as he says he has seen a lot of people who are unable to do so.
“They never get through it because in most cases they don’t have the physical ability to keep going to class all day,” he says. “Or they haven’t spent much time in school so they don’t have the learning abilities to just upgrade themselves at the drop of a hat.”
McKinnon has another reason to doubt the efficacy of WSIB’s efforts. He cites a 1995 study of 11,000 workers in Ontario, which found that about 50% workers who returned to work successfully were likely to reinjure themselves in the long run.
‘Listen to the physicians who treat them’
The policy of deeming raises an important question about who should have the power to decide the extent of a person’s injury and to determine their capacity to work.
The Ontario Network of Injured Workers’ Groups (ONIWG), an umbrella organization that includes injured workers groups across the province, as part of its Workers Comp is a Right campaign, simply asserts that WSIB should listen to the physicians who treats the injured workers.
“Everything the WSIB has done since 2011-2012, has been with that goal of saving money,” Lunansky says, explaining the rationale behind the WSIB’s decisions.
The board has come under criticism for what is a systemic issue, whereby it ignores medical opinions in favour of the views of its own case managers who are not qualified.
In Winegarden’s situation, his case was decided upon by an actual doctor, but one who had not bothered to even speak with him.
“So there was a doctor that had never met me, that had never touched me, that never looked at me, and he basically made the decision that my pre-existing condition was the main decision that led to my surgery,” Winegarden says.
The successful challenge of that decision through the appeals tribunal was not an aberration. According to an analysis by The Star, between 2012 and 2016, 80% of decisions to cut workers off on the basis of pre-existing conditions were reversed.
But questioning the validity of these decisions comes at a cost.
Broken and embattled
Mark Winegarden chose not to challenge the deeming verdict. The three years he spent fighting the board on its ruling to deprive him of compensation had drained him. Moreover, he realized that he had the option of availing private disability insurance – one of the benefits of his unionized job.
“I can appeal it and I can go through the years of fighting them again,” he says. “Or I can say, I am going to look after my family. I’m going to let my cheque come through three different sources and I will just get on with my life.”
Winegarden realizes that compared to the average injured worker, he had two things going for him. Although his wife struggled to keep the family financially afloat when WSIB abandoned them, she was still able to provide support. And then, he had insurance.
“I was in a well-protected job. As a paramedic or a correctional officer, or a police officer or a teacher, you got strong unions that basically negotiate good collective agreements, they get you things like that. But the average person, without a (union) contract, they don’t have these benefits,” he says.
Injured workers just want to get on with their lives, Winegarden says. Despite the physical challenges of his existence, he says he has made peace with it.
“But a lot of people don’t do that. They can’t do that. They have to fight the fight. It causes a lot of depression. It causes suicides. It’s just terrible.”