Chart illustrates the actual economic impact of injury on workers subject to the WSIB’s “deeming” practice, showing pre-injury income, net average earnings, loss of earning (LOE) benefit (85%) , impact of deeming and minimum wage deductions, consequences for social support systems and the injured worker.
While raising the minimum wage in Ontario is centrally important for all workers, there is a dilemma for injured workers because of “deeming” – when the minimum wage goes up, injured worker benefits go down. The practice of deeming – which bases workers’ compensation benefits on “deemed” or “phantom” jobs and earnings, rather than actual or real wage losses incurred by permanently disabled injured workers – is one of the WSIB’s more insidious mechanisms to cut people off benefits …
The struggle for decent work and the struggle for decent workers’ compensation are inextricably linked. Workers who are in precarious and low-wage jobs are also at greater risk of being injured at work, less likely to report injury or unsafe working conditions, and much more likely to fall into poverty when they are injured. Fairness means employment standards coverage and enforcement of protections for all workers – it also means an end to deeming and “phantom jobs”.
Changes brought in by Bill 99 (Workplace Safety and Insurance Act, 1998) limited coverage for mental health injuries to workers who had experienced traumatic mental stress. As a result, the WSIB does not accept any mental stress conditions that emerge over time. Despite a finding by the Workplace Safety and Appeals Tribunal that it was unconstitutional and discriminatory to exclude chronic mental injuries from compensation, workers continue to be denied coverage, with their only option to engage in a multi-year, costly and stressful appeals process.
A clothing allowance is a yearly sum injured workers receive if they wear a brace or other device needed for their injury that causes clothing damage. After successful lobbying to restore full funding after the allowance was halved by the WSIB during the years 1996-2006, a further 10-year campaign was needed to ensure injured workers could apply for retroactive benefits for that period.
THE WSIB says injured workers are doing better than ever. This document challenges the spin being placed on the Board’s “performance improvements” and cost reductions, achieved on the backs of injured workers.
Experience rating (ER), a financial incentive program for employers used by the WSIB to promote occupational health and safety, is not achieving its goals but instead hurts injured workers in many ways. Employer resources are diverted from workplace safety improvement towards claims management and suppression (discouraging the reporting of accidents and filing of workers’ claims). ER programs also fail in supporting successful return to work. Proposed changes look at insurance equity rather than the addressing the core problems with the program.
Phantom jobs, phantom wages… Instead of looking at what the injured worker is actually able to earn in suitable and available employment, the Board deems (or dreams) most injured workers to have returned to full time gainful employment after their injury, regardless of their real life situation… and then reduces or eliminates their loss of earnings benefits by this deemed wage. Backgrounder also discusses the threat to remove the 72-month lock-in of benefits, without which injured workers will find themselves under “perpetual probation”.
A summary of the developments and funding/cost-cutting rationale leading up to the Board’s implementation of new benefits policies; with analysis of the general approach under decision makers ‘look to deny’ by questioning work relatedness every step of the way. The main way this is achieved is by repeatedly raising the issue of pre-existing conditions. Backgrounder discusses how these policies reject the legal principles (including the thin skull doctrine) and instead try to ‘medicalize’ the decision-making process through not only challenging causation but use of “expected recovery times” – rather than individualized assessment – as a tool to cut off benefits. (Originally published in Justice For Injured Workers Jan. 2015 issue).
The four key demands of the injured workers movement, and key provisions from the 2004 Platform for Change document (summary of draft revision)