Migrant Workers and WSIB Benefits

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1 Migrant Workers and WSIB Benefits CLEO Webinar September 21, 2015 Jessica Ponting

2 OVERVIEW The basics of WSIB in Ontario Why differences in migration programs are relevant for WSIB How to best protect injured migrant workers rights Ways to get involved with organizing for change Information here is general and is not a substitute for individual legal advice.

3 THE BIG PICTURE Pressure and harassment from employers to return to work Fear of loosing job and/or being repatriated Worker knows that they can loose their livelihoods if their injury doesn t get better and prevents them from working long term

4 Options for injured migrant workers largely dependant on labour migration program 1. Low Waged, In Home Caregivers Program (Formally Live-in Caregivers Program) 2. Stream for Low Waged Positions (Formally NOC C&D Pilot Project/Low Skilled TFWP) 3. Low Waged Agricultural Stream 4. Seasonal Agricultural Workers Program 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

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

7 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 gave up their right to sue employers for workplace injuries. 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.

8 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)

9 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.

10 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 )

11 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)

12 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)

13 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)

14 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)

15 What s Next?: Benefits and Protections Health Care Early and Safe Return to Work (accommodation at work) Loss of Earnings Retraining / Work Transition Non Economic Loss 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.

16 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 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 health care. The Board shall pay for the worker s health care.

17 Health care for workplace injuries includes (but is not limited to): Typical services provided by OHIP Sometimes WSIB will get diagnostic tests expedited Should not need OHIP to get, but difficult in practice due to cooperation of healthcare provider WSIB-sponsored centres Regional Evaluation Centers, Specialty Clinics WSIB arranges this easier to get without OHIP Prescriptions, Physiotherapy, Assistive Devices

18 Travel expenses (Policy ) Taxies or other specialized transportation used when participating in a medical rehabilitation program 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. Travel for family members if worker is unable to travel due to work-related condition.

19 Early and Safe Return to Work WSIB assesses a worker s 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 duty to cooperate as doing modified work if it s available The worker does not have to return to modified work for the period that they are totally impaired (although this is increasingly a adjudicative rather than a medical decision).

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21 The Early and Safe Return to Work period extends until the worker has recovered or has been terminated. Frequently WSIB will determine that a worker has recovered based on expected recovery dates

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

23 Loss of Earnings s The Loss of Earnings (LOE) benefit compensates workers for their lost wages due to a workplace injury. LOE when the worker has a wage loss caused by the injury and is cooperating in: Health care measures Early and Safe Return to Work Retraining In practice, it is very hard to get LOE if the employer is offering modified work. Can get around this by showing that the employer does not have real modified work, suitable for the worker s injuries or by showing (in detail) why the worker s injury totally prevents them from working. 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 LOE LOE ends when injury ends (in most circumstances)

24 When the employment relationship ends. Retraining and Deeming Step 1: WSIB identifies a Suitable Occupation IN ONTARIO that the worker can 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) Jose cannot cook anymore because of his injury. He s been fired. WSIB thinks he can best restore his earnings as a security guard and identifies this as a suitable occupation. The WSIB believes Jose needs 5 months of school to learn English and have some academic upgrading to be a security guard. Jose cooperates in this retraining and is provided LOE for the duration.

25 Step 3: Deeming. The WSIB reduces or eliminates your LOE benefit based on the presumed wages of your Suitable Occupation. (-minus) Net Average Earnings before injury What the WSIB pretends you can earn in Ontario with your injury = Partial LOE Benefit (85% of difference) When Jose is done retraining, the WSIB deems him capable of fully restoring his preaccident earnings and eliminates his LOE benefit even though he has not been able to find a job. Because WSIB identifies a Suitable Occupation that best restores the worker s pre-accident earnings, usually workers receive little to no partial LOE after being deemed

26 The result of deeming for migrant workers: Jeleel worked on the SAWP in Niagara. He suffered a serious crush injury to his left hand that left him permanently unable to do farm work. After his employer repatriated him to Jamaica, the WSIB gave him 4 weeks Loss of Earnings in lieu of retraining (now would be 12 weeks) and then ended it. Even though he was in Jamaica and unable to legally work in Ontario, the WSIB explained the reason that they cut his benefits was because they deemed him able to earn minimum wage working as a gas bar attendant in Niagara. Meanwhile, Jeleel has serious problems finding one-handed work in his community and has never been invited back on the migration program. He has his family have fallen into poverty.

27 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)

28 CASE EXAMPLES

29 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?

30 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

31 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 tells him he needs to be off work for a little while so he can heal. 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?

32 Tricky 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. 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? A letter from the doctor explaining in detail why Carl cannot do any type of work (pain generally not accepted as sufficient reason)

33 PROTECTING WORKERS RIGHTS WHAT ARE THE WORKER S OPTIONS? Some important, practical considerations for protecting injured migrant workers rights when they get injured: 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? (the answer is YES!) 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? Get legal advice before quitting. Many workers want to quit / return home because of the stress and pain. Usually a bad idea to quit - the worker should get legal advice before they decide to quit.

34 If the worker wants to, consider if staying in Ontario for health care is viable option Many workers want to stay in Ontario for health care so that they can recover as much as possible after the employment relationship ends. This could be a viable option for workers on any migration program (but pros and cons) Can the worker get support from WSIB? What other housing is available if/when the employer evicts them (friends, family, etc.)? Does the worker risk losing their return plane ticket? What income replacement is available if WSIB is delaying or refusing benefits? (qualify for EI sick or EI regular)? AND how long will it run? What type of immigration status could the worker get if needed? (visitors visa, study permit, work permit, etc.) What community organizations or legal representatives could they be connected with?

35 Protect workers rights to appeal Workers have 30 days or 6 months to appeal, depending on the issue decided against them Must submit an Intent to Object Form (available online)

36 Free Legal Resources For support regarding a workplace injury or illness contact: IAVGO Community Legal Clinic Tel: (416) Toll Free: Toll Free: Office of the Worker Advisor (Service in English) (Service in French) (TTY) For support regarding the Human Rights Code: Human Rights Legal Support Centre Tel: (416) Toll Free: TTY: (416) TTY Toll Free: To find a legal clinic in your area: Legal Aid Ontario Toll free: Toronto: (416)

37 HOW YOU CAN GET INVOLVED IN ORGANIZING FOR CHANGE Stay connected with us! Invite IAVGO to do presentations for organizations that you re involved with Watch for and join actions around IAVGO s Charter challenge on deeming migrant workers (early 2016)

38 Questions or comments? Thanks for your time! Jessica Ponting, Community Legal Worker IAVGO Community Legal Clinic