Injured worker advocates will ask a United Nations committee to examine a workers’ compensation board practice that slashes accident victims’ benefits by declaring them employable in “phantom jobs” — even though they have not been able to find real work.

The submission, being made Wednesday by the Ontario Network of Injured Workers’ Groups (ONIWG) to the UN Committee on the Rights of Persons with Disabilities, says the practice, known as deeming, is a “pressing” human rights concern.

“Deeming laws are based upon stigmatizing people with disabilities,” the submission, seen by the Star, says.

Provincial workers’ compensation boards across Canada engage in deeming, the submission notes. The Star has previously highlighted the issue in Ontario, after a study by ONIWG earlier this year found thousands of workplace accident victims have been forced into the social assistance system because they were cut off workers’ compensation benefits.

“Deeming causes economic hardship for people with disabilities while employers pocket the savings,” the UN submission reads.

Workers’ compensation schemes in Canada are funded through employer premiums. When workers are permanently injured on the job, they are entitled to compensation for their loss of earnings and receive retraining if they are unable to return to their former position.

But deeming allows the compensation boards to reduce benefits by declaring them employable in a new job — whether or not the job actually exists. Studies show that in reality, workers with permanent injuries are often discriminated against in the job market and struggle to find work.

Although workers’ compensation laws are set provincially, Canada is a signatory to the UN Convention on the Rights of Persons with Disabilities and has a history of “co-operative policy development with the provinces on international labour and human rights standards,” said Jeffrey Hilgert, a professor of industrial relations at the Université de Montréal, who helped guide ONIWG’s submission.

Following Wednesday’s submission in Geneva, the UN committee could decide to adopt the issue on a list of concerns to which Canada will be asked to respond. The committee would then assess whether Canada is complying with the provisions of the convention.

In Ontario, the provincial human rights code is “factored into our policies and decisions,” said Workplace Safety and Insurance Board spokesperson Christine Arnott.

Ontario legislation requires post-injury benefits to be determined by “suitable and available” alternative employment, she added.

“We are proud that with our help, nine out of 10 people who miss work because of an injury are back on the job with no wage loss within one year of being injured,” she said. “Currently, more than 96 per cent of people are able to find work after completing a return-to-work plan, up from about 50 per cent in 2012.”

But ONIWG’s May study, which was based on freedom-of-information requests made to the WSIB, found that workers with complex, permanent injuries were often not successful in finding employment after a life-changing workplace accident. For example, just 27 per cent of injured workers with English language barriers who completed a WSIB work transition program found a real job at the end of it.

One internal board audit from 2016 looking at injured workers who were not able to return to their original employer found that around half of those deemed capable of working did not actually have a job.

“By WSIB’s own statistics, almost half of permanently injured workers have neither jobs nor workers’ compensation benefits,” the May report said.

Examples include sprinkler fitter Wayne Harris, who was permanently injured after falling off a ladder in 2012, resulting in a series of complex surgeries. After providing a retraining program, the WSIB last year deemed him capable of being a project manager, even though his surgeon told him he should not be working at all. The board cut his benefits by two thirds.

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Wednesday’s submission says the practice means Canada is failing to meet its general obligations under the UN convention, as well as its specific obligation to provide an adequate standard of living and protection for those with disabilities.

The submission makes several recommendations, including the elimination of deeming, reversing past benefit reductions for people who have been “deemed” into jobs that didn’t exist, and maintaining adequate funding for legal aid services for injured workers.

The submission notes that recent legal aid changes in Ontario targeted clinics for injured workers with disabilities. The Toronto-based Injured Workers Community Legal Clinic, for example, has laid off 40 per cent of its staff as a result of a 22-per-cent funding cut from Legal Aid Ontario.

Hilgert said Canada has clear obligations to ensure permanently injured workers can go on to live in dignity — with a secure income.

“The practical implications, if you read the international standards, are very concrete,” he said. “The practice of deeming phantom jobs would have to end.”

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