“The phantom jobs of injured workers: The WSIB’s horrific practice of deeming.” / Zaid Noorsumar (Rank and File, 2 Nov. 2017)
“Deeming” is hard to explain – and harder still for injured workers, such as Mark Winegarden, to experience. Having damaged his spine on the job in 2007, the paramedic was forced in 2012 to appeal a Workplace Safety and Insurance Board decision to cancel his benefits on the pretext of a pre-existing condition. Although his benefits were reinstated following an Appeals Tribunal ruling which gave more weight to the medical evidence of the worker’s treating doctor, they were subsequently reduced because of deeming.
“Deeming” is when the WSIB determines the type of employment a worker can do despite their injury, assumes they are hired full-time in that position, and then deducts that amount of pay from their compensation benefits. In Mark Winegarden’s case, even though severe pain from his back injury made employment an impossibility, the Board considered him capable of working full-time as a customer service representative and slashed his benefits.
Why deeming fails injured workers
While originally intended, together with vocational rehabilitation services, to encourage injured workers to return to suitable and available work, implementation of the policy is ‘dysfunctional’. As lawyers from Injured Workers Consultants Community Legal Clinic (IWC) explain, the Board fails, particularly in its dealings with marginalized workers, on many counts – even for those able to return to some level of work. They point to the WSIB’s poor determination of what is suitable and what is available, the inability of many injured workers to complete work transition training plans because of their injury or educational limitations, the additional difficulties of finding work in today’s job market given the stigma associated with disability.
It’s a system that assumes full-time employment, 40 hours a week, in jobs that don’t exist, or don’t exist on a full-time basis … and it doesn’t take into account the fact that these are people who are not fully able-bodied.”
While the Board doesn’t publish statistics on the numbers deemed employable despite their injuries, the community legal clinic using data from the WSIB’s website conservatively estimates that about 82,000 workers have been wrongfully deemed since 2007.
Fighting back for rights and fairness
The issues faced by Mark Winegarden (deeming, pre-existing conditions policy, disregard for treating doctors’ medical opinions) are ones confronting many Ontario workers suffering work-related permanent disabilities. Demands to address these are at the core of the Workers’ Comp is A Right Campaign now being waged across the province, led by the Ontario Network of Injured Workers’ Groups (ONIWG).
The need to eliminate deeming is made more urgent by the long overdue changes to raise the minimum wage in Bill 148 (Fair Workplaces, Better Jobs Act, 2017). The negative impact of increased minimum wage on injured worker benefits was again emphasized by Karl Crevar (ONIWG) and David Newberry (IWC) at hearings today before the Standing Committee on Finance and Economic Affairs. ( Nov. 2 Committee transcript ).
- Ontario Network of Injured Workers’ Groups. 2017 Sep. 11. We Demand: No Cuts Based on Phantom Jobs
- Mojtehedzadeh, Sara. 2016 Jul. 21. “Injured workers routinely cut off WSIB by improper rulings: critics say decisions citing pre-existing conditions unlawfully force vulnerable workers to battle for compensation they’re entitled to.” (Toronto Star)