Advocates are renewing calls to end a practice known as “deeming” by the Ontario Workplace Safety and Insurance Board (WSIB) which they say unfairly penalizes injured migrant workers and cuts their benefits.
Coinciding with the International Day for the Elimination of Racial Discrimination on March 21, an open letter penned by a group of injured migrant workers and their allies was sent to the Prime Minister, to Ontario’s Premier, to Ontario’s Labor Minister and to WSIB president and CEO, Jeffery Lang, demanding an end to the practice of “deeming.”
The controversial provision allows the Board to “deem” any injured worker to be capable of working in another suitable job, whether that job exists or not, and cut their benefits accordingly.
“We believe that the workers’ compensation system is racist and that we are treated very badly. This systemic racism does not treat us like we are human,” the letter states, noting that migrant workers are hit hardest by the practice.
“Rather than helping us heal, the current system makes it worse for us. We have been denied the right to function as humans in Canada. For those of us who have been repatriated, we are returning to our home countries with injuries and traumas.”
Jessica Ponting, a legal worker at Industrial Accident Victims Group of Ontario (IAVGO), describes “deeming” as an “egregious” and “pernicious” tactic used by the WSIB.
“They (WSIB) identify suitable occupations that they think the worker can do, and then cut the workers’ benefit as if they were working that job, even though many workers never find a job that they can do,” Ponting told New CanadianMedia.
“For Ontario workers, it’s a fiction….but for migrant workers, the fiction is just so magical.”
The practice is just one link in a long chain of cuts to benefits.
Neither jobs, nor benefits
Based on WSIB figures obtained by IAVGO and shared with New Canadian Media, from 2015 to 2019, out of a total of 3,738 injury/illness claims made by migrant workers in the Seasonal Agricultural Workers Program (SAWP), 68 per cent, or 2,549 claims, received “no lost time claims” — that is, claims where the WSIB paid only health care and no lost wages.
Conversely, only 31 per cent of claims, or a total of 1,189, received “lost time,” meaning the WSIB paid at least one day of lost wages.
Moreover, while the number of claims allowed for “lost time” remained relatively unchanged throughout that period (from 205 in 2015 to 267 in 2019), claims allowed “no lost time” increased significantly each year, from 364 in 2015 to 656 in 2019 .
|Allowed Lost Time||205||248||239||230||267||1189|
|Allowed No Lost Time||364||414||544||571||656||2549|
Source: Information released by WSIB in a 2021 Freedom of Information request to IAVGO.
In an email statement, Maryth Yachnin, a research and test case lawyer with IAVGO, said it’s not clear how many migrant workers are “deemed,” but “based on the WSIB policy and our experience, we believe it is most migrant workers whose injuries are permanent.”
According to a 2019 whistle blower report from the Ontario Network of Injured Workers Groups (ONIWG), women, those who were in lower paying or less skilled jobs at the time of injury, those who suffer from mental health disabilities, and workers not fluent in English “are more likely to be deemed as working than their higher paid and less precarious counterparts.”
A statement from the WSIB says the Board provides services to “all injured and ill people who are covered by the Workplace Safety and Insurance Act,” including migrant workers.
“Unfortunately, due to the contractual limitations of the Federal Seasonal Agricultural Worker Program and the limitations on work visas, the WSIB is unable to provide (sic) retraining opportunities for migrant workers while in Ontario,” WSIB spokesperson, Rachel dePass, wrote.
“Should a migrant worker be unable to return to their pre-injury position in the agricultural sector but be able to return to an alternate suitable occupation in Ontario, they are provided with loss of earnings benefits for a 12-week period, which is the equivalent of job search training (2 weeks) and employment placement services (10 weeks). Where appropriate, we would pay a partial loss of earnings benefits if their pre-accident wages are not restored.”
But Ponting notes that, “for farm workers, the vast majority of them are getting nothing.” She says based on the Board’s own statistics,” they haven’t paid any partial loss of earnings to farm workers….So, in essence, they’re not getting anything.”
Additionally, according to ONIWG’s report, only 27 per cent of workers with English language barriers secured employment after completing work transition, but most are “deemed” and have their benefits cut.
It also found that only 17 per cent of workers who were told they could be cashiers were able to find jobs, and only 49 per cent of those designated as customer service agents were able to secure work in that field. Yet all of them have their benefits cut, it states.
“By WSIB’s own statistics, almost half of permanently injured workers have neither jobs nor workers’ compensation benefits,” ONIWG’s report states.
According to dePass, the WSIB “continues to provide payment to travel for treatment and for health care when the individual has returned to their home country. Prior to departure or repatriation, the WSIB ensures injured or ill people receive a health care assessment to provide them with an understanding of their ongoing medical conditions and treatment needs upon leaving Ontario.”
DePass says the Board may even “interact with local officials” to help injured migrant workers who’ve been repatriated and to “monitor their progress and recovery.”
But according to the open letter, injured workers find it “hard to communicate with the WSIB caseworkers on the phone, even when (their) medical information is placed on their desks or on computers.”
“The injured people are re-traumatized on top of what they have already been through, which leads to even more depression and frustration,” the letter states. “Injured migrants cannot get to see a proper doctor nor do they have the money to pay for it.”
Chris Ramsaroop, from Justice for Migrant Workers, says what the Board — and, by extension, Canada — is actually doing is “downloading (its) health care responsibilities, and responsibilities of a social safety net, onto the countries of the Global South. ”
“When we send (migrant workers) back home, it’s their health care services that have to pay up front for the failures of our society to protect workers,” he told NCM.
This is why he says “deeming” boils down to “systemic racism,” because “no other group in our society is treated where they’re cut off of benefits for jobs that don’t exist.”
Access to justice and health care
The open letter calls on the Federal government to grant permanent immigration status to all undocumented and migrant workers, and to allow injured migrant workers to stay in Canada and “access justice and health care.”
A statement from Ontario Labour, Training and Skills Development Minister Monte McNaughton’s office said the government will be “providing an update” on actions that will “create generational change at the WSIB…in the coming weeks.”
Ponting agrees with the general call to end “deeming” as a practice. But, she adds, if it’s going to continue, in order to “make it equal” to how they deem other workers in Ontario, the Board should at least “deem (migrant workers) for jobs that they can theoretically do in (their home country).”
“In Ontario, these workers are being deemed in wages that you can theoretically get,” she says. “But (for migrant workers), they’re deemed on wages that they cannot get, not even in theory.”