Faulty WSIB cases add insult to injury
Injured workers being fired unfairly: advocates
An injured steel worker fired for taking a side job in exchange for food, after his employer didn’t pay him and he couldn’t afford to eat.
An injured autoworker fired for failing to meet production targets, after her employer assigned her a “modified” job that went against her doctor’s orders.
An injured temp agency worker fired for using his phone during a “modified” shift that an independent tribunal said provided him “little, if anything” to do.
All are Ontario employees who were told by the provincial workers’ compensation board that their bosses were within their rights to terminate them, despite legal provisions meant to protect employees from unfairly losing their jobs after an accident.
Half of all appeals made on that issue to the Workplace Safety and Insurance Appeals Tribunal (WSIB) over the past decade resulted in the tribunal slapping down decisions by the province’s compensation board, the Star has found, forcing injured workers into lengthy legal battles to enforce basic protections.
“This is absolutely an enormous issue. It starts at the front line of adjudication, and it starts with the power imbalance between workers and employers,” said Maryth Yachnin, a lawyer at the Industrial Accident Victims’ Group of Ontario legal clinic. “It results in a culture where the worker is being disbelieved at every turn.”
Under Ontario law, employers mustoffer accident victims jobs that are suitable, sustainable and productive for at least a year after they are fit enough to work. If the worker gets fired within six months of returning, their employer must prove to the compensation board that they are not terminating them because of their injury.
The Star found 55 cases over the past decade at WSIAT, the highest level appeal for work- place compensation matters, all involving injured workers who were fired shortly after returning to work, but where the compensation board accepted employers’ contention that they had not broken the law.
In 51 per cent of those appeals, the tribunal found that the Workplace Safety and Insurance Board had erred in its decision-making — and that the employers had in fact violated their legal obligation to re-employ and accommodate injured employees.
In a statement to the Star, the WSIB said many of the tribunal decisions date back to a time when “labour market re-entry was a service provided by external partners.” Since 2011, that function has been brought inhouse and the board says it has been able to resolve the vast majority of re-employment breaches through “co-operative education and other assistance.”
In 2017 the WSIB said it found 126 employers broke their obligations to injured workers, but was successfully able to improve their return to work program in 121 cases. It penalized five employers.
“Since 2015, we have launched an extensive training program with our own staff — including a partnership with the Human Rights Commission — to make sure our return-to-work team knows what legislated requirements are and how to work with employers to co-operatively meet them,” the statement says.
But Yachnin says the tribunal rulings point to a different issue: in half of all tested cases, the board’s decisions about whether employers were breaking the law were wrong.
The 55 tribunal cases represent a small fraction of compensation cases processed every year. But many workers simply don’t contest board decisions because the process can take years, Yachnin added.
“It’s one of the hardest claims to fight because you have to go directly against your employer and a lot of workers are reluctant to take on an employer in a big legal battle. And they don’t have the money and resources to do that.”
The tribunal decisions describe a variety of ways in which companies sought to edge out workers after an accident.
In one case, a 42-year-old steel worker who hurt his back on the job was fired after his employer discovered he was delivering pizza on the weekend in exchange for food. His employer alleged he had lied about being totally disabled and the WSIB agreed that his employer had just cause to terminate him. But the appeals tribunal found the worker had not been paid the wages he was owed by his accident employer, and “had no ability to feed himself.”
“He therefore accepted the assistance of the pizza shop owner … notwithstanding that his doctors continued to direct him to remain off work completely.”
In another tribunal case, a car seat manufacturer offered modified work to an injured employee, but quickly terminated her — allegedly because she could not meet production targets. The company hired a private investigator to tail her, and submitted evidence to the board showing the worker driving her car for six hours and lifting light objects around the house. The board ruled the woman could be fired.
But the tribunal found that the employer’s offer of “modi- fied” work required prolonged periods of standing — in direct contradiction to medical advice provided by a WSIB physician. It also found the private investigator’s footage actually captured the woman performing household tasks that her doctor had recommended for rehabilitation. The reason she drove her car for six hours, the tribunal noted, was to attend an uncle’s funeral.
“The overall impression is not one of an individual who was attempting to game and deceive the system. The overall impression is instead of an individual who was in significant pain but also in significant emotional distress,” the final decision says.
The Star found 16 tribunal cases where the WSIB did rule that employers had breached their re-employment obligations, leading employers to appeal. Those cases saw a far lower success rate, with the tribunal siding with employers in just four of the cases.
Bogdan Koscik, a former cancer centre engineer in Oshawa, was terminated three days after his return to work following a back injury.
His employer said he was fired for reasons unrelated to his injury, citing two work refusals and time sheet “discrepancies.” The WSIB accepted his employer’s position.
In separate proceedings, the Ontario Labour Relations Board did too.
But after years of appeal, the compensation board tribunal found in 2016 that at least one of the work refusals was because Koscik was worried about his safety, and that his employer had done little to resolve the time sheet issues — despite Koscik providing “extensively detailed explanatory documentation” about the discrepancies.
“The way the WSIB dealt with me, it’s extremely disappointing,” Koscik, now 62, told the Star. “This is the most gentle word I can find.”
Instead, it took Koscik six years from the time of his accident to get a ruling showing he had been unfairly terminated.
“It was horrible. We lost our house. The whole journey through those six years, it was one disaster after another.”