Injured Norfolk migrant worker deserved more pay from WSIB: Tribunal

Six years after a devastating injury on a Simcoe area farm, Leroy Thomas says he’s finally feeling hopeful about the future.

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The former seasonal worker from Jamaica dislocated his spine while working at a tobacco farm in 2017, an injury that left him unable to continue as an agricultural worker and in deep financial distress after his compensation for being injured on the job ran out after 12 weeks.

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Now, after Ontario’s Workplace Safety and Insurance Appeals Tribunal found that he and injured migrant workers in similar situations deserved better treatment, Thomas says he feels optimistic at last.

“I was devastated, I’ve faced hungry times, it’s been the roughest time of my life. But now I feel a bit better,” the 48-year-old said in a phone interview from Jamaica.

“I feel like justice has been served.”

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When asked about the tribunal ruling delivered this month, Ontario’s Workplace Safety and Insurance Board said it will be conducting a review of how claims for people in the federal Seasonal Agricultural Worker program are handled.

Thomas, who began working as a seasonal migrant worker on Ontario farms in 2001, was getting on a wagon while working on a farm in 2017 when he fell. He heard a snap in his back as he landed on concrete and was in excruciating pain. His employer took him to a hospital where he learned he had dislocated his spine.

Thomas said he was repatriated after the injury because it prevented him from continuing to work on the farm. Once back in Jamaica, he said he could not afford to continue medical treatment because the Workplace Safety and Insurance Board stopped long-term income loss benefits after 12 weeks.

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Thomas said he was also unable to keep working as a barber in Jamaica, a job he held for years while not farming in Ontario.

He and three other injured migrant workers in similar situations went to the Workplace Safety and Insurance Appeals Tribunal to argue for better compensation.

The court ruled this month that the Workplace Safety and Insurance Board was wrong to assume seasonal migrant workers were eligible for a maximum of 12 weeks of income-loss compensation through the Seasonal Agricultural Worker Program if they had been injured.

It noted the loss-of-earnings provisions of the Workplace Safety and Insurance Act assumed that after three months, all workers could return to work either in Ontario or their home country, without taking into account workers’ actual circumstances, such as whether they had recovered from their injury, were capable of working or finding a job.

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The tribunal ruled that was not appropriate.

“It is not appropriate to limit their entitlement to long-term (loss of employment) benefits to 12 weeks in every case without regard for their individual circumstances,” he wrote.

“For the reasons set out in this decision, the panel concludes: The long-term (loss of earnings) benefits for migrant agricultural workers ought to be based upon their ability to earn in their actual local/regional labor market.”

The Workplace Safety and Insurance Board said its review of the handling of claims in the Seasonal Agricultural Worker program is expected to take six months.

“This was a decision we made that takes the latest decision into account and our determination to treat people with humanity and respect, taking into account the realities of their local labor markets,” spokesperson Christine Arnott wrote in a statement.

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“This review will clarify how the claims are adjudicated and will determine whether previous decisions should also be adjusted. People whose claims are under review will be contacted directly by the WSIB in the coming weeks.”

A lawyer for Thomas and the three other migrant workers in the case called the tribunal’s ruling “significant.”

“It was a fundamental problem of the seasonal worker programs that workers were disposed of when they were injured,” said Maryth Yachnin, a lawyer with a Toronto-based legal clinic.

“This decision agrees that this practice is wrong.”

Yachnin said she expected other injured migrant workers could seek compensation in light of the ruling.

“We hope that other migrant workers will hear about this decision and if they’ve been permanently injured on the job here in Ontario, we hope that they will reach out and seek the support that they should have been getting,” she said.

Thomas said he has been in touch with his case manager and will begin the process of obtaining his lost income in the coming days. With the money he receives, he said he hopes to pay off his debts and start a business.

“I could kind of get my life on track,” he said.

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