Law Times

Page 10 September 10, 2018 • Law timeS www.lawtimesnews.com Clinic says ruling is first of its kind Injured migrant worker to get partial benefits BY GABRIELLE GIRODAY Law Times A Jamaican migrant worker who was in- jured while picking fruit at an Ontario farm will be eligible to receive partial benefits for loss of his earning power, after a deci- sion by the Ontario Workplace Safety and Insurance Appeals Tribunal. The man received legal help from the Industrial Accident Victims' Group of Ontario, which argued that he had a right to the benefits under the Work- place Safety and Insurance Act. Maryth Yachnin, staff lawyer at the Industrial Accident Vic- tims' Group of Ontario, says the ruling is the first of its kind, be- cause it opened the door for mi- grant workers to receive benefits past the 12-week mark if they're injured on the job. "Essentially, it gives migrant workers a chance at equal access to benefits, whereas before, they had no chance," says Yachnin. Yachnin says migrant work- ers who are injured on the job in Ontario "get a fraction of the benefits that Ontario workers get, even if they have just as se- rious injuries and are just as un- able to work after injury." In the case, a Jamaican man seriously hurt his back in August 2008 while he was working at a farm picking fruit as part of the Seasonal Agricultural Worker Program. In September 2008, he re- turned to Jamaica. "The worker stated that, fol- lowing his injury, he has had dif- ficulty bending and lifting, and that he has been unable to per- form farm work. He stated that, following his injury, because he has not been able to perform farm work, he has not tried to return to Ontario to work under the SAWP," said the decision. IAVGO, which is a non-profit legal clinic, said in a submission to the tribunal that the man had received "almost no compensa- tion for his losses" and argued that the tribunal should order the board to pay the worker for loss of earnings after October 2008, based on wages he would be able to earn in suitable em- ployment available to him in Jamaica. "Like any other worker more vulnerable to the consequences of workplace injury, [the worker] should receive entitlement for his losses, even if these losses are more severe than for another worker," said the submission. The tribunal ruled that the worker was entitled to partial loss of earnings benefits for the period after October 2008 and that the work identified as a post-injury replacement for the worker — as a cashier in Ontario — wasn't suitable and suitable work needed to be in his home country of Jamaica. "The worker's situation is not similar to the situation where a worker makes a personal choice to move or leave Ontario after a workplace accident," said the ruling. "In this case, the worker had no choice but to return to his home country." The tribunal sent the issue of calculating the quantum of the benefits back to the board to de- termine. Yachnin says in the case that the board took the position that migrant workers who are in- jured are unable to participate in retraining in Canada and the reason they have a loss of earn- ings is their immigration status, not their disability. "It effectively means that if you're a migrant worker and you suffer even a very serious injury on the job and then you are sent back to your home country or you are here for medical treat- ment and unable to work, you will get 12 weeks of benefits, whereas other people will get benefits for the duration of the period of time where the disabil- ity prevents them from doing their pre-accident job or another safe, suitable job," she says. A spokeswoman for the Workplace Safety Insurance Board, Christine Arnott, said in an email statement that the board has requested reconsid- eration of the decision. "Migrant workers are entitled to the same benefits and services as any person injured at work in Ontario. Decisions on whether migrant workers are allowed to remain in Ontario fall under federal jurisdiction; however, where possible we will work with the injured person and employer on a case-by-case basis if they should stay in Ontario during their recovery. Our goal is to get the best recovery and return-to- work outcomes for the people we're here to help," she said. "To assist migrant workers who leave Ontario in receiv- ing health care in their home country, we will help them find the appropriate treatment, pay FOCUS Well-known condominium authority Audrey Loeb brings you up to date on all the opportunities and challenges of the Condominium Act, 1998, as well as other complex issues arising in condominium law. New to ProView The eBook will now be available on the Thomson Reuters ProView® platform, a professional eBook experience. As the legislation is updated, we'll keep you current with ongoing updates. Access your online subscription on ProView through your computer, smartphone, or tablet. 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Print softcover + Online subscription * with ongoing updates $180 Online subscription * with ongoing updates $129 Print only $129 Order # L7798-8633-65203 Softcover approx. 900 pages October 2018 978-0-7798-8633-3 SAVE 30% Maryth Yachnin says migrant workers who are injured in Ontario 'get a fraction of the benefits that Ontario workers get.' See Room, page 12 The worker's situation is not similar to the situation where a worker makes a personal choice to move or leave Ontario after a workplace accident. Workplace Safety and Insurance Appeals Tribunal members

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