Volume 51, Issue 2: Spring 2017

Defending the rights of injured workers

The struggle against poverty wages and for universal workers’ compensation are inextricably linked

Photo by IWW Environmental Unionist Caucus

The Fight for $15 and Fairness campaign has swept across Ontario as a broad-based, worker-led movement that poses a powerful challenge to the austerity agenda. It boldly rejects attempts to drive down wages and working conditions. It presents an inspiring and achievable plan to raise the floor for workers across the province. And it gives working-class people strength and courage to combat the desperation that agents of austerity aim to instil.

In addition to the central demand for a $15 minimum wage, the campaign’s broad set of demands for “Fairness” provides an opportunity for diverse anti-poverty, anti-austerity and workers’ rights movements to converge under one banner and build collective power.

The injured worker movement in Ontario is one such movement that stands to benefit from joining forces with the Fight for $15 and Fairness Campaign. Injured workers have a decades-long history of fighting for justice in the workers’ compensation system, and have had many moments of inspiring mobilization and victories. Today, however, injured workers in Ontario are up against the cutting edge of austerity in the province, as the Workplace Safety and Insurance Board (WSIB) is singularly focused on cutting its own costs, rather than protecting the well-being of injured workers.

Between 2009 and 2015, the WSIB cut benefits to injured workers by roughly $1.16 billion — a 33 per cent reduction over the six-year period. That figure includes cuts of $277 million in Loss of Earnings benefits — paid to injured workers to replace their lost wages after a workplace injury — and $133 million in healthcare benefits, which include such things as physiotherapy, mental health treatment and medications.

Shamefully, it is those with the most severe and complex injuries, including mental-health conditions arising from work accidents, who are bearing the brunt of the WSIB’s cost-cutting measures, because their injuries are the more expensive ones. As such, the most severely injured are seen as costs and liabilities to the system rather than as human beings who have a right to the care they require.

The consequences are dire. A 2013 study by researchers at Trent University found that 46 per cent of permanently disabled injured workers lived in or close to poverty. It is not uncommon for injured workers to become homeless after being cut off benefits. Families are broken apart due to the financial and emotional strain of dealing with the compensation system.

This is a small snapshot of how austerity is manifested in the Ontario workers’ compensation system. It is part of the overall agenda to cut public services and social support systems and increase the precariousness of workers across the province.The connections between the struggle for decent work and the struggle for decent workers’ compensation are clear. There is much research linking precarious work to increased risk of injury. The same 2013 study from Trent also suggests that workers with low incomes prior to an injury are particularly vulnerable to poverty and face a substantially greater risk of being unable to escape it when they are injured.

The emergence of the $15 and Fairness campaign presents an opportunity to connect the injured worker fightback with the broader struggle to raise the floor for working people and build working class power.

Universal coverage

For the injured worker movement, one of the most exciting opportunities for convergence centres around demands for universal coverage. One of the Fight for $15 and Fairness demands is for universal employment standards coverage — ensuring that all workers be protected by minimum standards.

This demand directly aligns with one of the central planks of the injured worker movement, which supports universal workers’ compensation coverage. Currently, nearly one-in-three workers in Ontario are not covered because they work in industries that do not require employers to obtain WSIB coverage. This is the lowest coverage rate of any province in Canada.

Employers in Ontario are also not required to provide paid sick days or disability insurance. Workers who also have no WSIB coverage have little or no safety net to support them if they are injured or made ill on the job. They are at greater risk of being forced onto social assistance and falling into poverty, and any healthcare costs for their injuries are borne by the public healthcare system, rather than the employer-funded compensation system.

The calls for universal employment standards and workers’ compensation coverage are mutually reinforcing. Those involved in the injured worker movement and $15 and Fairness have an opportunity to unite their efforts and demand that, just as all workers deserve minimum standards of work, so do all workers deserve the same protections and coverage in case of injury or illness on the job.

Protections and enforcement

Another point of convergence for the injured worker movement and $15 and Fairness is the shared demand for protection for workers who stand up for their rights, and proper enforcement against employers who break the law.

Many workers injured or made ill on the job have their right to compensation violated by employers who try to suppress claims. At any gathering of injured workers, it is common to hear stories about people who have been fired or punished for reporting a work injury. The reprisals disproportionately affect workers in precarious jobs and who are seen by employers as more easily exploitable.

In 2013, a claims suppression study commissioned by the WSIB confirmed these anecdotal experiences. It found that workers did not report their injuries to the WSIB roughly 20 per cent of the time, and that employer pressure on workers was a major factor in the under-reporting. In addition, some 18 per cent of employers also did not report injuries at all, or misreported their severity.

There is a clear reason for the epidemic of claims- suppression in workers’ compensation, and it relates to the WSIB’s system of financially rewarding employers who have low claim rates and penalizing those who have high rates. This system is called “experience rating.” It encourages employers to fight and suppress claims because they can cash in on huge financial rewards — sometimes millions of dollars per year.

In theory, claims suppression and reprisals against workers are illegal. In practice, however, enforcement mechanisms against employers are weak. All too often, employers can engage in repressive tactics with impunity.

The lack of effective enforcement is a familiar problem for workers who seek to hold their employers accountable for employment standards violations. It speaks to the failure of individual complaint-based systems that do not acknowledge the power imbalance between workers and employers. For both employment standards and workers’ compensation, we need legislation and real infrastructure that protect workers’ rights and that actually enforce accountability for employers who try to skirt the law.

Photo by Injured Workers Online

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The rise of temp agencies has produced another battleground for those advocating for workers’ rights, as temp agencies deepen pools of vulnerable and precarious workers and allow employers to offload risk and responsibility.

This is another direct parallel with injured worker issues, as temp agencies absorb the risks and costs of workplace injuries from client employers; when a temp agency worker is injured at a client workplace, the injury shows up on the temp agency’s record rather than the client’s. No matter how many temp agency workers a client employer injures, they will not be subject to any penalties through the WSIB’s experience rating system.

A 2012 study on the dangers to worker safety in the temp agency sector explains that, with temp agencies protecting client employers from experience rating penalties, employers are encouraged to outsource risky jobs to agencies. Temp agency workers are, in fact, deemed more disposable.

The result is that temp agency workers have a greater chance of being injured on the job, and suffering more severe injuries.

Additionally, because temp agency workers tend to be vulnerable, with no job security, low wages and are easily replaceable, it is harder for them to speak up about injuries and unsafe working conditions.

The temp agency crisis is a clear illustration of how key $15 and Fairness concerns around precarious work, poor protections for workers and ineffective enforcement against employers are directly related to higher risks of work injuries and structural injustices in the workers’ compensation system.

The solution is not simply to apply the current experience rating penalties to client employers rather than temp agencies. As discussed above, experience rating simply encourages employers to fight and suppress claims, rather than promoting safe working conditions. Instead, an overhaul of the system is needed, and actual accountability measures must be put in place to prevent employers from gaming the system.

The phantom jobs conundrum and the practice of “deeming”

While $15 and Fairness presents many opportunities to engage with the campaign, there is a dilemma for injured workers regarding the minimum wage demand. One of the more insidious mechanisms through which the WSIB cuts people off benefits is that when the minimum wage goes up, injured worker benefits go down.

Dubbed “deeming,” this practice reduces a permanently injured worker’s benefits under the pretence that the worker is employed — even when they have no job. Essentially, the WSIB dreams up a phantom job that it claims the worker could get. It then pretends they are earning a salary from the non-existent job, and cuts their benefits by the amount of the invented salary. Injured workers who have been “deemed” are left with little or no compensation benefits, regardless of whether they are in fact employed.

A typical example of deeming might involve a worker who is earning $15 an hour when she suffers a permanent back injury and cannot return to her old job. For some time, the WSIB provides her with loss of earnings benefits commensurate with her pre-injury salary. However, in the drive to cut its own costs, and even if the worker has limited education, limited English skills, no related work experience, and has been declared unfit to return to work by a doctor, the WSIB eventually deems her to be employed as a customer service representative, earning minimum wage: $11.40 and hour.

Because she has been deemed, her benefits are cut to roughly $3 an hour — the difference between her pre-accident wage and the phantom wage. This is her entire income, and she typically falls into poverty.

The catch in relation to $15 and Fairness is that when the minimum wage is increased, the WSIB will deem people at a higher phantom wage as well. So that same worker who was deemed at minimum wage is now deemed to be making $15 an hour rather than $11.40. Her benefits are therefore wiped out completely and no longer receives even $3 an hour.

The practice of deeming is absurd. That the practice can be used to drive injured workers deeper into poverty when the minimum wage goes up is a clear injustice that can serve to drive a wedge between injured workers and the rest of the working class.

This challenge can be overcome, however, through an uncompromising demand from injured workers and their allies to end deeming. Injured workers should be compensated based on their actual earnings, not imaginary income.

If the compensation system were structured this way, a person who is unable to work after their injury would receive full compensation benefits in recognition of their lost earnings. Increases to the minimum wage would have no detrimental impact on benefits.

So to overcome the deeming conundrum, let us demand a $15 minimum wage for all. Let us demand fair working conditions. And at the same time, let us also demand an end to deeming and phantom jobs, so that income security for injured workers is raised at the same time as the floor is raised for all workers.

The struggle for decent work and workers’ compensation are inextricably linked. We must fight for employment standards that treat workers with dignity and respect, and we must also struggle for workers’ compensation that supports people through their injuries. This is a powerful moment for the injured worker movement and $15 and Fairness to join forces in the rising tide against austerity.

Aidan Macdonald works as a community legal worker with Injured Workers’ Consultants Community Legal Clinic, where he represents and organizes with people who are struggling for recognition from the workers’ compensation system. Outside of his day job, he has been involved in campaigns around Palestine solidarity for many years, and is a supporter of many grassroots movements locally and internationally.

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