Migrant Workers and WSIB Benefits September 21 2015

Migrant Workers and WSIB Benefits September 21, 2015 Jessica Ponting

OVERVIEW The webinar will cover: ü Differences in migration programs relevant for WSIB ü The basics of WSIB in Ontario and what/when benefits are generally available (and if there are specific considerations for migrant workers) ü How to best protect injured migrant workers’ rights ü Ways to get involved with organizing for change ü Case examples at the end Information here is general and not meant as legal advice.

THE BIG PICTURE • Workplace injuries can be extremely stressful • Employers often dislike having to deal with WSIB and with injured workers • Workers experience fear of losing their jobs or their position in the migration program • Workers know they can lose their livelihoods if their injury continues to impair their ability to work • WSIB can be a harsh system and it often leaves workers conflicted about what to do – many want to “do the right thing” but have to choose between their health and their job.

Options for injured migrant workers largely dependant on labour migration program… 1. Low Waged, In Home Caregivers Program 2. Stream for Low Waged Positions 3. Low Waged Agricultural Stream 4. Seasonal Agricultural Workers Program (Formally Live-in Caregivers Program) (Formally NOC C&D Pilot Project/Low Skilled TFWP) Generally, each program differs in key ways relevant to injured workers (practical consequences and legal consequences) Other migration program exist but are not discussed here

*Unique rules, guidelines for SAWP workers claiming WSIB – important to know difference between farmworker programs*

Different Parties Involved in WSIB • For Caregivers, General Low Waged workers, and some Agricultural Steam workers, usually just WSIB, injured worker & employer (and maybe union rep or legal worker) are involved with WSIB • SAWP workers and some Low Waged - Agricultural Stream workers have Government Agents who play a key role ü Government Agents (e. g. Mexican Consulate, Jamaican Liaison Service) actively involved in WSIB claims. ü Communicate with WSIB during WSIB business hours ü Get mail for the worker from WSIB (both in Canada and after repatriation) ü Facilitate the repatriation of workers ü Arrange for some health care in home country

In our experience, government agents: Do not protect the worker’s appeal rights Do not provide impartial representation (balance the interests of employers/program sustainability and workers) Rarely appeal Refuse to arrange health care if the worker hires another representative Sometimes try to persuade worker to accept private insurance and “go home” The WSIB allows government agents to represent workers at the WSIB even though they do not have authority to represent from Law Society and even though there is, in our view, a clear conflict of interest.

Questions so far?

THE BASICS OF WSIB • The Workplace Safety and Insurance Board (WSIB) administers workers’ compensation in Ontario. It’s an arms-length agency of the Ministry of Labour. • WSIB is funded solely through employer premiums – not tax $. • Historic Trade Off - in exchange for an “no fault” compensation system, injured workers and survivors of deceased workers gave up their right to sue employers for workplace injuries and workplace deaths. • Historically workers’ compensation was seen as a right based on gainful employment (not a social entitlement). • Benefit scheme we will discuss is based on injuries after January 1, 1998

• Three levels of decision making: Workplace Safety and Insurance Appeals Tribunal (External to WSIB) Appeals Services Division (Internal to WSIB) Operations Level / Claims Level (Internal to WSIB; decision makers include Case Managers and Nurse Case Managers)

Who’s Covered? • WSIB Coverage is mandatory for most employers of low skilled/low waged migrant workers • List of industries who have compulsory coverage is found in O. Reg. 175/98. • Workers can claim compensation, and if they are not covered WSIB will tell them.

Special considerations related to coverage domestic workers and SAWP workers • Domestic workers are covered only if they work an average of over 24 hours a week with a single employer or work for multiple employers who “share” the worker’s services for more than 24 hours per week (Policy 12 -04 -14)

• SAWP workers: • are covered while in transit to/from home country • have increased coverage while in transit in Ontario • are covered during “periods of leisure, meals and while sleeping while staying in employer-provided quarters”. • are not covered when “involved in recreational activities away from the employer’s premises, or participating in activities unrelated to their employment. ” (Adjudicative Advice Document: Coverage and entitlement for workers hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program)

Good things to know for migrant and non-status workers: • Injured workers can claim compensation even if their employers did not register with WSIB • Any agreement a worker signs with his employer to waive benefits under WSIB is void (s. 16) • Able to claim WSIB even if employer paid the worker “under the table” (although it may be a challenge to determine the worker’s loss of earnings benefit rate without proper documentation)

What type of injuries are covered? • Workers are entitled to benefits if a personal injury arose “out of and in the course of his or her employment”. • Workers are covered for injuries/illnesses caused by: – a chance event (e. g. fall or hit by machinery) – a willful act by someone other than the worker (e. g. physical or sexual assault) – disablement (e. g. a gradual onset injury from strenuous work) – occupational disease – Psychological injuries in some circumstances • Significant Contributing Factor test (i. e. was the work a SCF in the onset of disability – need not be the primary factor)

How is a claim started? • Form 6 – worker (Workers must submit within 6 months of learning that they were injured at work, can be extended) • Form 7 – employer (Employers must submit within 3 days) • Form 8 – doctor (WSIB requests that healthcare providers submit this form on the first visit where they believe a medical condition is caused by a workplace factor)

What’s Next? : Benefits and Protections ü ü ü Health Care Early and Safe Return to Work (accommodation at work) Loss of Earnings Retraining / Work Transition Non Economic Loss ü Survivors Benefits These benefits are technically available regardless of immigration status or residency in Ontario. However, the WSIB considers returning to the home country (i. e. : moving outside of Ontario) and changes in immigration status within Canada a “material change”. It is possible for a material change to impact entitlement to some benefits (e. g. Loss of Earnings).

Entitlement to Health Care – s. 33 (1) A worker who sustains an injury is entitled to such health care as may be necessary, appropriate and sufficient as a result of the injury and is entitled and sufficient to make the initial choice of health professional for the purposes of this section. (2) The Board may arrange for the worker’s health care or may approve arrangements for his or her care health care. The Board shall pay for the worker’s health care.

Health care for workplace injuries includes (but is not limited to): • Typical services provided by OHIP Ø Sometimes WSIB will get diagnostic tests expedited Ø Should not need OHIP to get, but difficult in practice due to cooperation of healthcare provider • WSIB-sponsored centres Ø Regional Evaluation Centers, Specialty Clinics • Prescriptions, Physiotherapy, Assistive Devices • Travel expenses (Policy 17 -01 -09) Ø Taxies or other specialized transportation used when participating in a medical rehabilitation program Ø Accommodation expenses “when required to lodge away from home while keeping an appointment or participating in a program authorized by the WSIB” – I. e. : if migrant worker is evicted and is required to stay in Ontario for medical care. Ø Travel for family members if worker is unable to travel due to workrelated condition.

Early and Safe Return to Work -s. 40 • WSIB assesses worker’s of ability to work immediately after the injury • Employer and worker have duty to co-operate in return to work – Communication with each other, WSIB – Employer must attempt to provide suitable work that, where possible, restores the worker’s pre-accident earnings – Worker must assist the employer to identify suitable work by providing information about functional abilities – Doing other things as may be prescribed • Often Case Manager interprets worker’s “cooperation” as doing modified work if it’s available

FAF or Functional Abilities Form: • Used in Early and Safe Return to Work • Useful tool for workers to get their doctors to fill out to document ongoing injury and ongoing need for accommodated work • Available online and in most doctors offices

Loss of Earnings– s. 43 -44 • The Loss of Earnings (LOE) benefit purportedly compensates workers for their lost wages due to a workplace injury. • LOE when the worker is cooperating § Health care measures § Early and Safe Return to Work § Retraining • In practice, unless totally disabled, a worker’s willingness to do modified work offered by the employer (i. e. : “cooperate” in Early and Safe Return to Work) is the most important factor when assessing merit of LOE entitlement. • If a worker leaves the country or no longer has the immigration status to work with the accident employer, may be a considered a “material change” that disentitles them from further LOE (possible exception of SAWP workers) • Employer’s Premiums increase if LOE is provided • LOE ends when injury ends (unless covered by re-employment obligation, s. 41)

When the employment relationship ends…. Retraining (s. 42) and Deeming (s. 43): Step 1: WSIB identifies a Suitable Occupation (SO) IN ONTARIO that the worker can (but for their immigration status) do with their injury and that best restores the worker’s pre-accident earnings. Step 2: WSIB decides if retraining is needed. SAWP workers get 12 weeks LOE in lieu of retraining. (per Adjudicative Advice Document: Coverage and entitlement for workers hired under the Commonwealth Caribbean and Mexican Seasonal Agricultural Workers Program) Step 3: Calculation of partial LOE when retaining finished Net Average Earnings before injury (-minus) What the WSIB pretends you can earn in Ontario with your injury = Partial LOE Benefit (85% of difference) Because WSIB identifies a Suitable Occupation that “best restores the worker’s preaccident earnings”, usually workers receive little to no partial LOE after being deemed

The result of deeming for migrant workers: Jeleel Stewart was a SAWP worker from Niagara. He suffered a crush injury in 2008 to his left hand that left him permanently unable to do farm work and permanently unable to use his left hand. He was repatriated to Jamaica shortly after his injury. After the employment relationship ended, WSIB gave him 4 weeks LOE (now 12 weeks) then deemed him able to earn minimum wage working as a gas bar attendant in Niagara. Even though his employer repatriated him to Jamaica and he cannot legally work in Ontario, the WSIB cut his LOE as though he was in fact working as a gas bar attendant in Niagara. Jeleel cannot find one-handed work in his community in Jamaica and he has his family have fallen into poverty.

Other Types of Benefits: • Non Economic Loss (NEL) Award – One time lump sum award for permanent injury – Do not have to be in Ontario to receive it • Survivors Benefits – Available to the families of deceased workers (e. g. traumatic accident, occupational disease) – Do not have to be in Ontario to receive it – Usually Ministry of Labour will notify WSIB of traumatic accidents (except In Home Caregivers) – Usually claim-based for occupational disease – Includes: monthly payments to spouse, lump sum payment to spouse, monthly amount for children, vocational rehabilitation for spouse, burial expenses (including airfare for repatriation)

• Any questions now?

PROTECTING WORKERS’ RIGHTS – WHAT ARE THE WORKER’S OPTIONS? Some important, practical considerations for protecting injured migrant workers’ rights when they get injured: Ø First and Foremost – Focus on Healthcare • What type of healthcare does the worker need? • Should they take steps to document the injury through medical attention? • How long is the worker entitled to OHIP? • Can healthcare or (e. g. diagnostics, rehabilitation) be arranged and fast-tracked by WSIB, by their doctors?

Ø How easily can the employer repatriate the worker or otherwise cause them to leave Canada? Ø Does the worker have ongoing WSIB entitlement they can use to get benefits? Ø Does employer have authority to repatriate? Ø Is housing provided/controlled by the employer? – i. e. If the employer terminates the worker, does it also mean they will be evicted? Ø Is return airfare provided by the employer? Ø When is the end of the contract, season and/or work permit (i. e. : attempting to predict “material change”)? Ø What are the worker’s options if they want to stay in Ontario for health care instead of being repatriated? Ø What other housing is available (friends, family, etc. )? Ø What income replacement is available (qualify for EI)? Ø What type of immigration status could they get? (work permit, visitors visa, study permit, etc. ) Ø What community organizations could they be connected with?

Ø Are the worker’s WSIB appeal rights protected? ØWorkers have 30 days or 6 months to appeal, depending on the issue decided against them ØMust submit an Intent to Object Form

HOW YOU CAN GET INVOLVED IN ORGANIZING FOR CHANGE ü Representing migrant workers or refer them to legal clinic ü Keep eyes open for IAVGO’s test case on deeming migrant workers and join related actions (early 2016) ü Possibility of starting an working group on migrant workers and WSIB ü Support campaigns by Migrant Workers Alliance for Change (connect on social media, come to actions)

Questions or comments? Thanks for your time!

CASE EXAMPLES

Early and Safe Return to Work & Loss of Earnings: Case Example #1 Maria has been with her employer for 7 months under the Agricultural Stream of the Low Waged TFWP. She injured her wrists doing repetitive work clipping plants. She wants to work and has provided her employer a Functional Abilities Form completed by her doctor. Her employer tells her that he does not deal with WSIB and tells her he is going to repatriate her to Mexico. She tells WSIB and they accept that her injury is work-related and that her employer intends to send home. What is WSIB likely to do / should they do? What benefits is she entitled to?

WSIB should do: • Intervene and try to get the employer to cooperate in Early and Safe Return to Work • Pay Loss of Earnings (LOE) while her employer is not offering modified work and the situation is in flux (provided she continues to be injured) • If employer fires her, identify a Suitable Occupation and consider whether she needs retraining • Could pay LOE while in medical care and participating in ESRTW or Retraining

Early and Safe Return to Work & Loss of Earnings: Case Example #2 Carl fell off a ladder in the barn and injured his back. His doctor is telling him he needs to take it easy and cautions him against doing farm work. The doctor checks a box on the Form 8 saying that Carl is unable to work and notes that he will be re-evaluated in 1 week. Carl’s employer, Factory Farms R Us, is pressuring him to return to work immediately and has offered him light work making boxes. Carl decides not to return until he can follow up with his doctor. Is Carl likely to get Loss of Earnings benefits?

Trick question…(sorry)… • Carl would likely get LOE at the Tribunal because he acted reasonably, his wage loss is the result of his injury, and he cooperated in ESRTW and medical rehabilitation per the legislation. • BUT…Difficult time at Claims would likely tell him that the box making work is suitable and that his wage loss is because he choose to turn down suitable work (not because of his injury). What would help Carl get benefits at the Claims level? ü A letter from worker / rep explaining why Carl cannot do this work ü A letter from the doctor explaining in detail why Carl cannot do any type of work (pain generally not accepted as sufficient reason)