A surplus of denied claims: Doug Ford’s WSIB giveaway will hurt injured workers

By rejecting injury claims, Ontario’s workplace compensation board has saved billions — which will now go to employers
Photo: Dennis Jarvis
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Before his injury, Wycliffe Boothe worked as a temporary foreign worker for nearly 25 years, labouring on farms in London, Niagara, and Essex County in Ontario.

He was picking bell peppers at a farm in Oakland in September 2020 when he lifted a 45-pound bucket and felt something give in his lower back.

A physician who evaluated him found he was unfit to bend, lift, or reach.

Boothe has been unable to work since his injury and says he is still suffering from “severe pain.” But Ontario’s Workplace Safety and Insurance Board granted him just 12 weeks of compensation for lost earnings, and he’s now stuck in the long appeal process.

“My wife here, she is surviving from breast cancer and it has been very hard for me since then,” he said. “I have to pay bills. I have to take care of my sick wife. I have to send my kids to school. So, it hasn’t been enough.”

This month the Ford government announced a plan to redistribute surplus funds from the WSIB to “safe employers.”

The massive handout will come from the WSIB’s current $6.1-billion reserve, which has been collected off the backs of injured workers denied adequate compensation by the board for sometimes serious and debilitating injuries.

“The WSIB doesn’t treat injured workers well,” said Boothe. Like other farm workers, he came to the country through the Seasonal Agricultural Worker Program. “We didn’t come to Canada injured.”

He says the WSIB should be compensating workers who get hurt, instead of giving money away to employers.

“Injured workers can’t even pay to see the doctor. So why are they doing that? They should give those surpluses to the injured workers.”

Origins of a surplus

Under the Ford government’s plan, employer handouts will be required when the WSIB surplus reaches 125 per cent, but they will be permitted when the surplus reaches 115 per cent. The government calls this a “return” of premiums paid by Ontario businesses.

“This package will save employers hundreds of millions of dollars that can be reinvested in new jobs, technology, and health and safety protections,” said Minister of Labour Monte McNaughton in a release. “At the same time, injured workers will continue to receive the benefits and services they deserve.”

However, injured workers have been denied vocational and medical rehabilitation services, seen loss of earnings benefits cut short, been insufficiently compensated for occupational diseases and permanent disabilities, and faced a wide-scale rejection of legitimate psychological injury claims.

Wycliffe Boothe

Just 6 per cent of chronic mental stress claims are approved, in contrast to 78 per cent of claims for other injuries, according to the IAVGO Community Legal Clinic, which supports injured workers in Ontario.

“What’s not being asked by the WSIB or the Ministry of Labour is ‘how is this surplus accumulated?’” said David Arruda, a community legal aid worker with IAVGO.

“It was accumulated because the WSIB denies so many claims that the premiums are not being paid out.”

The WSIB is implementing a “cost-saving agenda,” reminiscent of a large insurance company, instead of ensuring that injuries are justly compensated, he added.

To add further insult to injury, the Ford government plans to cut employer-paid premiums in 2022 by $168 million, which will bring total premium reductions since 2018 to $2.4 billion, according to the government.

The WSIB’s premium rates manual for 2020 states that the average premium rate has fallen by 47.1 per cent since 2016.

‘The guise of getting workers back to work’

Unable to work and at risk of being sent home to Jamaica after his back injury, Boothe asked his employer in writing to allow him to stay in Canada to access physiotherapy until the other agricultural workers were sent home. This would mean continuing to live in the farm’s bunkhouse.

“She said she would give me time,” said Boothe. (Ricochet is withholding the name of the employer and farm since Boothe’s WSIB appeal is ongoing. The author’s sister is involved in the appeal as an advocate.)

But suddenly, according to Boothe, he was told by his employer that he had to leave Canada.

“She booked a flight for me and told me I had to go. They sent me home prematurely,” said Boothe. “I was sent home and I wasn’t recovered.”

He departed less than two weeks after his injury.

The letter Boothe wrote to his employer asking that he be allowed to remain in Canada while receiving treatment

“She was very angry” about the injury, he told Ricochet by phone in Jamaica.”That’s why she sent me home.”

Due to his injury, Boothe was not able to return to Canada for the 2021 growing season. He has been unable to find work in Jamaica despite being professionally trained as a mason, because the jobs require the ability to lift.

“It’s hard for me to get work here. I can’t lift weight,” he said. “I have never experienced this kind of injury before. Never in my entire life.”

“I would like to do something but I can’t.”

The WSIB is mandated to pay full loss of earnings benefits to injured workers in the absence of suitable and available work, said Vasanthi Venkatesh, an assistant professor at the University of Windsor and chair of the IAVGO Board of Directors, in a written submission to the Ministry of Labour in August.

In practice, however, the WSIB “hides behind the guise of getting workers back to work,” she wrote, deciding that “they should be able to work in at the very least a minimum wage position.”

“This determination is made too frequently without real consideration for the restrictions set in place by their doctors or what the worker has been trained to do.”

The toilet in the bunkhouse at one of the farms where Boothe lived

Venkatesh also notes that the WSIB should address the issue of occupational diseases before giving employers any surplus money.

“This is most relevant in a time where many workers have contracted COVID-19 in the workplace,” she wrote. ““More funding must be allocated towards ensuring that workers who have been impacted by an occupational disease are appropriately compensated.”

Migrant rights advocates have criticized the Ontario government for excluding migrant worker bunkhouses from occupational health and safety laws, including workplace inspections, especially given the role that congregate living quarters have played in the spread of COVID-19.

As of Oct. 16, there have been 3,238 COVID-19 cases and 250 outbreaks recorded on Ontario farms, according to data from Ontario Public Health.

Deplorable housing conditions are an ongoing issue for temporary foreign workers.

“There [have been] a lot of flies and bed bugs over the years,” said Boothe.

“And we stuck with it because we just want to get work.”

A lengthy appeal process

Disputes over WSIB decisions are heard by the Workplace Safety and Insurance Appeals Tribunal. In an examination of the tribunal’s rulings from 2016, IAVGO identified 425 cases addressing unfair decision-making practices.

For example, in 110 cases, the tribunal found that the WSIB “wrongfully refused to compensate workers for time they took off work on their doctors’ advice” and disregarded medical expertise, making “illogical and unreasonable” decisions about return to work.

In 175 appeals, the tribunal found that the WSIB’s rulings actually ran counter to the medical evidence.

Responding to these findings in a post, a former chair of the tribunal, Ron Ellis, said the WSIB has a “culture of pro-active denial” and its “adjudicative factual findings are routinely not ‘evidence-based.’”

Appealing a WSIB decision isn’t easy. The process is long — it can take years for an appeal to be heard by the tribunal, before which workers must jump through a number of bureaucratic hoops. While waiting for justice, workers often live without support and may fall into poverty.

Many workers unable to secure support from a union or legal representative ultimately accept the WSIB’s rulings.

The bunkhouse at one of the farms where Boothe lived

Boothe is now forced to pay for his own medical appointments and medications because his assigned WSIB case manager deemed him fully recovered on Sept. 17 of this year — which he said went against the opinion of his doctor.

“The doctor said I should continue to do physiotherapy” but the WSIB “said they are no longer responsible for me because I did an MRI and the MRI finding was that I was fully recovered,” Boothe explained.

The case manager also disregarded the medical findings of Wycliffe’s orthopedic surgeon, who provided a post-MRI report saying that his back injury is caused by years of farm labour in Ontario — and thus is compensable by the WSIB.

Still in pain, Boothe continues to visit his WSIB-approved doctor in Kingston, Jamaica, about 225 kilometres and a four-hour drive from his home.

“I have to find my own way. I have to pay for travelling and I can’t go straight there. I have to stop and take breaks because of the pain in my back,” he explained. His doctor advised him not to sit for more than 30 minutes at a time.

“If it were not for support from my family and friends, I don’t know how I would have survived.”

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