Six-year wait for justice

Six years after Leroy Thomas injured his back while working on a tobacco farm in Ontario, Canada, a tribunal in that North American country has ruled that the 48-year-old Jamaican be compensated for loss of earnings since that time.

Further, a determination is to be made on whether compensation will end only after the completion of an investigation of Jamaica’s labour market to identify if there are any suitable jobs Thomas can pursue considering his injury.

The ruling was handed down last month after the four-member panel of the Workplace Safety and Insurance Appeals Tribunal concluded that the state-run Workplace Safety and Insurance Board’s (WSIB) practice of limiting foreign agricultural workers’ long-term loss of earnings entitlement to 12 weeks is contrary to the law.

Thomas was among four foreigners employed under Canada’s Seasonal Agricultural Worker Program (SAWP) who brought appeals.

The WSIB has been ordered to determine the wage losses, and return to work prospects, of foreign agricultural workers based on their actual labour markets.

Thomas, a former barber from Spanish Town, St Catherine, in a Gleaner interview last Tuesday, said he had been working on the programme since 2001 before picking up the injury in September 2017.

He was travelling on a tobacco wagon on a farm in Simcoe when he fell and hit his back, picking up a permanent spinal injury.

He was treated and sent back to Jamaica in November 2017 but only after his liaison officer insisted on it and that he receive “proper paperwork”, which documented his injury.

Thomas said this was in stark contrast to how workers are usually treated, claiming that liaison officers often side with Canadian employers to repatriate injured workers without providing avenues for necessary compensation.

But three months after his return to the island, where he sought further medical treatment, including physiotherapy, the WSIB discontinued compensation for loss of earning, applying the SAWP Adjudicative Practice Document.

The WSIB said Thomas, a married father of two, was “not able” to participate in retraining and instead deemed him able to work as a parking lot attendant in Ontario and ended his benefits.

“It is hard to get the help you need if you don’t go to doctor over there. They send you out of the country with nothing. So it’s hard for you to get treatment here. That is one of the things that a lot of farmworkers have been facing over the years,” said Thomas.

“Some of us just lucky that the liaison who was representing us at the time help us to turn to places where we can get help,” he added.

That help came from the Industrial Accident Victims Group of Ontario, a not-for-profit, community-based legal clinic that provides free legal services to injured workers in Ontario, that helped him to pursue his appeal.

INJURY ‘DESTROYING’ FAMILY

Thomas testified at the tribunal how he had gone from providing for his family to being unable to secure the day’s meal after the injury.

He said it was “destroying” his family.

The panel subsequently ruled that migrant agricultural workers are entitled to compensation based on the realities of their lives after they have been repatriated and not based on an assumption that they can earn income in Ontario.

It accepted that the loss of earnings provisions of the Workplace Safety and Insurance Act, 1997 are intended to consider workers’ individual circumstances.

The tribunal also said it was entitled to account for anti-black racism and discrimination in interpreting the provisions of the act.

It said that the WSIB’s practice of limiting SAWP workers’ long-term loss of earnings entitlement to 12 weeks is inconsistent with the act.

“The statutory language calls for an individual determination of the worker’s circumstances in determining entitlement to loss-of-earning benefits. Causation is a factual determination to be made on the evidence in each case. However, the WSIB’s approach under the SAWP Adjudicative Advice Document precludes consideration of the actual role of the workplace injury in a migrant agricultural worker’s wage loss,” the tribunal determined in its ruling.

It also disagreed with the WSIB’s assertion that the income losses of migrant agricultural workers were not caused by their injuries but by “global economic disparities”.

The WSIB also argued that the provincial act doesn’t allow it to consider circumstances outside of Ontario for benefit payments. But the tribunal disagreed, finding that the WSIB’s stance wasn’t supported by the language of the statute, applicable policies, or agreements with the sending countries.

Thomas told The Gleaner that he was pleased with the decision, noting that he and other injured workers deserved to be compensated.

He wants the WSIB to end its “practice of denying racialised migrant workers” like him compensation and return-to-work support.

He is hoping that the decision of the tribunal means other migrant farm workers, and their families, “don’t suffer” the way he said he has.

kimone.francis@gleanerjm.com