J Occup Rehabil (2015) 25:357–367 DOI 10.1007/s10926-014-9544-3

Barriers to Return-to-Work for Linguistic Minorities in Ontario: An Analysis of Narratives from Appeal Decisions Stephanie Premji

Published online: 21 September 2014  Springer Science+Business Media New York 2014

Abstract Purpose Previous research has shown that linguistic minorities have inferior workers’ compensation experiences and outcomes; however little information exists on the structural barriers they face in relation to return-to-work (RTW). We sought to address this gap by describing barriers to RTW for linguistic minorities in Ontario using narratives from appeal decisions. Methods We examined decisions by the Ontario Workplace Safety and Insurance Appeals Tribunal. We searched the full text of decisions rendered between October 1, 2010 and September 30, 2011 for the keyword ‘‘English’’. A total of 378 decisions were generated. After eliminating decisions that did not involve linguistic minorities we retained half (189) for analysis. We summarized the issues around language for each decision and identified broad themes across decisions. Results We found that linguistic minorities’ limitations with regards to communication and power left them vulnerable to abuse, incomprehension and misperception by employers, care providers and adjudicators. In addition, specific RTW policies and practices failed to properly consider or mitigate their lack of English proficiency. These interpersonal and structural barriers negatively impacted linguistic minorities’ eligibility to benefits and services and the appropriateness thereof, as well as their eventual return to work. Conclusions Our research highlights the need to move beyond efforts to improve the linguistic competence of compensation boards to target the structural factors that impede equal access at every stage of the process.

S. Premji (&) Department of Health, Aging and Society, School of Labour Studies, McMaster University, 1280 Main Street West, Kenneth Taylor Hall, Room 701, Hamilton, ON L8S 4M4, Canada e-mail: [email protected]

Keywords Language
Workers’ compensation
Return to work
Disparities

Introduction Owing to immigration, Canada’s non-official language population is large and growing. In 2006, one in five Canadians reported a language other than English or French as mother tongue and recent projections predict that this proportion could rise to one in three over the next two decades [1, 2]. A non-negligible share of non-official language speakers lacks knowledge of their province or territory’s majority language, which outside of Quebec is English. In Ontario for example 8.4 % of non-official language speakers lack knowledge of English as based on self-reported conversational ability [3]. However the proportion that lacks proficiency in English is not known and undoubtedly higher. Proficiency generally refers to the full range of verbal and written skills needed to function in a variety of settings. Proficiency in the majority language is one of the most important determinants of social and economic success. In Canada, it has been linked to better housing and employment conditions and improved access to government-provided services like health care and education [4–9]. Studies have similarly identified language disparities in access to workers’ compensation, which provides victims of occupational injuries or illnesses with benefits and services such as income replacement, health care and vocational services. Evidence from Canada and the United States indicates that injured linguistic minorities are more likely than their counterparts to file a workers’ compensation claim, perhaps because they have more severe injuries, or they more often lack alternative sources of income replacement [10–12]. However, research

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suggests that those who file a claim have inferior experiences and outcomes [10, 13–22]. One area of difficulty involves return-to-work (RTW). Specifically, linguistic minorities may have problems accessing vocational services and training [20], or may be discouraged by the need for both language and skills training [20, 23]. At the same time, services and training may be inadequate. For example, MacEachen et al. [23] found that the duration of English language training provided by the Ontario workers’ compensation board was often insufficient. Linguistic minorities may also experience misunderstandings with employers and adjudicators over RTW arrangements, which can affect their eligibility to services or the appropriateness thereof [15]. As well, they may experience communication barriers with care providers which can hinder their rehabilitation [24, 25]. Such obstacles can negatively impact linguistic minorities’ RTW outcomes, as reflected in their extended duration of benefits [26] and higher rates of unemployment upon returning to the labour market [14, 27]. There is evidence that structural factors, which may relate to policy, organizational or other aspects of the environment, play a role in the difficulties experienced by linguistic minorities with workers’ compensation in general and RTW in particular. For example, research has found that gaps in interpretation and translation services provided by the Ontario workers’ compensation board complicated linguistic minorities’ access to workers’ compensation [15]. However, the limited research has thus far largely emphasized the role of communication-related interpersonal barriers, such as misunderstandings between individual workers and front line staff, in contributing to disparities. For that reason, we sought to untangle the structural barriers to RTW for linguistic minorities in Ontario using narratives of appeal decisions. Ontario has one of the largest shares of nonofficial language speakers in the country (27 %) [28], and among the highest numbers of lost-time claims compensated each year, with 57,0001 in 2011 [29]. The difficulties experienced by linguistic minorities with RTW are wellknown by administrators and front line staff within the Ontario Workplace Safety and Insurance Board (WSIB; Personal communication, Judy Geary2). Accordingly, there is a need to identify the specific policies and practices that may give rise to unfavourable RTW conditions for this population.

1

Many more claims are filed each year. In 2011, that number was approximately 235,000. 2 Former Vice President of Work Reintegration at the WSIB.

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Return-to-Work (RTW) in Ontario3 Few disabled workers are considered ‘‘permanently unemployable’’ by the WSIB.4 In most cases, the WSIB seeks to return disabled workers to a suitable occupation (SO) or suitable employment or business (SEB), which is defined as work that is physically and cognitively suited, safe and productive and, to the extent possible, restores pre-injury earnings. The WSIB prioritizes workers’ early and safe return to work (ESRTW) with the accident employer in a SO [30]. Employers and workers have the duty to cooperate with ESRTW, for example by identifying suitable work opportunities, and this is promoted through financial incentives and penalties. Employers sometimes get rebates for lower than expected claims costs, and surcharges for higher than expected claims costs. Accordingly, they are incented to bring injured workers back to work promptly, or to discourage claim filing in the first place.5 On the other hand, workers who fail to cooperate with ESRTW can see their benefits and services reduced or terminated. When the accident employer is unwilling or unable to arrange suitable work, the WSIB usually directs the worker to find work with a new employer. This process involves a labour market re-entry (LMR) assessment which reviews the worker’s skills, education and experience and sometimes tests his or her aptitudes. Following this assessment, WSIB staff or a consultant identifies a SEB based on labour market conditions and the worker’s vocational characteristics and functional abilities. The process can also involve a LMR plan where the worker is retrained over a maximum of 3 years. The plan can include English-as-second-language training for a maximum of 1 year, and/or academic upgrading, skills training in school or on the job, and job search training. The assessment and the various aspects of the LMR plan are generally outsourced to a network of private consultants, public and for-profit schools, and community-based agencies. Once a worker has completed a LMR assessment or plan, he or she can be ‘‘deemed’’ to 3

In September 2011, the WSIB launched a new ‘‘Work Reintegration Strategy’’. The language and content of this article reflects the previous policies, which still apply to many pending appeals. We use ‘‘Return-to-Work’’ to refer to the two components of the previous policies, ‘‘Early and Safe Return to Work’’ and ‘‘Labour Market ReEntry’’. 4 This determination is made on the basis on the cumulative effect of medical, psycho-social and employment market factors namely age, education, English proficiency, literacy and past work and life experience. Workers considered permanently unemployable are entitled to loss of earnings (LOE) benefits until age 65. 5 In addition, employers of firms with more than 20 workers are required to reinstate injured workers with at least 1 year seniority, up to 2 years from the time of injury, and to provide accommodations to the point of undue hardship where required.

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have returned to employment, and as a result benefits can be reduced or terminated. In addition, if a worker fails to cooperate with any aspect of the LMR process he or she can see their benefits and services impacted.

359 Table 1 Characteristics of a sample of 189 decisions from the Workplace Safety and Insurance Appeal Tribunal rendered between October 1, 2010 and September 30, 2011

Methods We conducted an analysis of decisions by the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT) on claims made under the Workplace Safety and Insurance Act, 1997 for compensation for an occupational injury or illness. The WSIB has broad authority to administer the workers’ compensation scheme, including the RTW program. The WSIAT, on the other hand, is a separate and independent agency that has exclusive jurisdiction to hear and decide appeals from final decisions of the WSIB. It is the final level of appeal to which workers and employers may bring disputes relating to workplace safety and insurance. As such, few cases progress to this level of appeal.6 WSIAT decisions contain descriptions of events that occurred throughout the compensation process. In cases of initial non-reporting, failed claim, or reduction or termination of services and benefits, decisions also include accounts of the impact on workers’ careers and health. We identified decisions by searching the website of the Canadian Legal Information Institute (CanLII), a non-profit organization managed by the Federation of Law Societies of Canada. Using CanLII’s search engine, we searched the full text of decisions rendered between October 1, 2010 and September 30, 2011 for the keyword ‘‘English’’. This period was chosen as we sought to examine cases over a 12-month period that preceded the launch of the WSIB new Work Reintegration Strategy in September 2011. A total of 378 decisions were generated by the search. For each decision selected, a research assistant visually scanned the full text where the keyword ‘‘English’’ was highlighted. She also searched the full text using the keyboard function ‘‘Ctrl ? F’’ for the keywords ‘‘language’’, ‘‘interpret’’, ‘‘translat’’, and ‘‘communicat’’. These four keywords were not used in CanLII’s search engine because they generated too many irrelevant cases. The research assistant read the passages identified and eliminated decisions that did not involve linguistic minorities. Exactly half (189) of the decisions were retained. The research assistant read the retained decisions and for each she extricated passages—including illustrative quotations—that concerned language. The author read a sample of the retained decisions. Using word processing software, the author then grouped the passages into themes and analyzed the data following some of the principles of 6

In 2011, for example, the Tribunal disposed of 3,830 cases.

Characteristic

%

Worker sex—female

41

Manual occupation

93

Case type ESRTW cases

18

LMR cases

59

Other

23

Main injury type

a

Claims allowed or allowed in part

b

Includes cases that were adjourned, abandoned, reopened, or that required further assessment

Accident

66

Musculoskeletal

26

Other

8

Claim outcome Claim alloweda

69

Claim denied

28

Otherb

3

general qualitative analysis as described by Miles and Huberman [31]. Namely, the analysis involved the exploration of the themes’ properties and dimensions, the identification of relationships between them, the uncovering of patterns, and their testing against the full range of data. Thus, we focused our analysis on RTW cases but tested our findings against the entire sample of retained decisions. Since we conducted a qualitative rather than a case law or judicial analysis of the decisions, and since the Tribunal usually considers multiple, complex factors in making its rulings, our analysis does not reflect on the outcome of individual cases. Our study adhered to the ethical principles outlined in the Declaration of Helsinki.

Results A breakdown of the characteristics of the cases is presented in Table 1. At the time of their injury or illness, almost all workers (93 %) were employed in manual occupations, and accidents represented the majority of occupational health problems (66 %). Most cases concerned RTW (77 %). All appeals were initiated by workers, and appeals were allowed in 69 % of cases. We note, additionally, that workers were both long term and recent immigrants, and in a few cases non-immigrants (i.e. French speakers). Workers experienced interpersonal and structural barriers to RTW which intertwined throughout the process. We describe these barriers below. Reporting Workers sometimes failed to initially report occupational health problems to their employer and/or the WSIB in part because of their lack of English proficiency:

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He told his employer that he was sick with back pain but gave no specifics regarding why he was experiencing the back pain. His English was poor at the time and he was completely unaware of any entitlement to compensation benefits…He remained off work for about eleven months…When he felt better he returned to work with another employer, the operator of a restaurant, working as a prep-cook. (Claims Adjudicator Investigation Report)7

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average to average intelligence. Judgment seemed to be intact.9 In another case, a physician suggested that the worker was malingering and unwilling to return to work. The worker argued that communication barriers may have played a role in the physician’s determination: The worker did not know why the physicians would have written such a thing. She indicated she always had a desire to get back to work and would do so at present if a job was available. The worker could not recall whether there was an interpreter present during the assessment and indicated there were times when she did not understand what the doctors were asking. (Worker’s Testimony)10

At times, workers claimed to have been pressured by their employer to not file a claim or drop their claim. This pressure came in the form of threats, abuse, harassment, intimidation or deception that sometimes exploited the workers’ lack of English proficiency: The worker testified that he did not write the letter as he does not speak English…his supervisor called him and told him that he would give the worker $500.00 if he signed the letter. The worker testified that he was not advised by the supervisor that the letter was asking the WSIB to close his claim…the supervisor never read him or explained the letter to him. (Worker’s Testimony)8

Communication barriers between patients and care providers also sometimes complicated treatment and eventual return to work. For instance, a physician asked to evaluate a worker opined: [The worker] has limited English language skills and during her assessment with me, she required an interpreter. Her poor English proficiency significantly confines the type and number of jobs that would potentially be available to her. It limits her opportunities and likely her success to retrain and/or reeducate. It also negatively affects her understanding of her pain, her communication with health care providers and educators, and her overall prognosis. (Medical Report)11

Sooner or later, workers in this situation stopped working because of their disability. They received no assistance from their employer or the WSIB while off work or in returning to work. Some workers eventually found new employment in low-wage, manual jobs where they further exacerbated their health problems, while others failed to reintegrate to the labour market altogether. Health Care Workers sometimes experienced difficulties communicating with care providers, resulting in wrong histories and diagnoses, incomplete or subjective assessments, and assumptions about their attributes or motivations which impacted their eligibility to benefits and services. For example, in one case, a psychiatrist who was unable to formally test a worker because of language barriers still noted his subjective assessment of the worker’s intelligence and judgment in his medical report: He hardly spoke English and seemed very dependent on his wife…I could not formally test his memory because of the language difficulties. His concentration could not be formally tested because of the language difficulties. He appeared to be of low 7

Decision No. 262/10, 2011 ONWSIAT 320 (CanLII), http://canlii. ca/t/fm20c retrieved on 2014-03-13. 8 Decision No. 1654/10, 2010 ONWSIAT 2936 (CanLII), http:// canlii.ca/t/fltn3 retrieved on 2014-03-13.

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RTW with the Accident Employer Workers sometimes failed to understand modified work arrangements, agreeing to work duties they did not fully understand.12 In other cases, employers, preying on workers’ vulnerability, required them to continue working without accommodations: She…was asked in a very rough tone who had applied for WSIB benefits…She was told there was to be an inquiry about the claim and she was scared given she did not understand English…She stated she was in the room 15-20 min, was scolded and told to return to work… She again noted asking for help 9

Decision No. 1657/10, 2010 ONWSIAT 2602 (CanLII), http:// canlii.ca/t/flh07 retrieved on 2014-03-12. 10 Decision No. 38/11, 2011 ONWSIAT 1802 (CanLII), http://canlii. ca/t/fnqkn retrieved on 2014-03-12. 11 Decision No. 685/11, 2011 ONWSIAT 997 (CanLII), http://canlii. ca/t/fmlm1 retrieved on 2014-03-12. 12 Decision No. 1533/10, 2010 ONWSIAT 2342 (CanLII), http:// canlii.ca/t/fl839 retrieved on 2014-03-12.

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carrying boxes, but none was provided… She stated it aggravated her pain and she felt dizzy, but kept working…she eventually could not continue. (Worker’s Testimony)13 …he returned to modified duties…He continued doing these duties until his employer advised…that they could no longer offer him modified duties because other employees with more seniority than him also required modified work…the plant manager harassed him on a daily basis by telling him that he could lose his job for reporting an accident to the Board and that it could affect his Canadian immigration status. At other times, the plant manager told co-workers that the worker did not speak English. He told the worker that he lacked education and threatened him with the loss of his job. (Worker’s Testimony)14 In some cases employers provided modified work but created toxic situations that influenced workers to quit and forgo their WSIB benefits and services: The worker’s representative submitted that the ‘‘death threat’’ posed to the worker prevented him from returning to work…The CA [Claims Adjudicator] advised the worker that LOE [Loss of Earnings] benefits would not be extended because he was offered modified work and unilaterally decided to leave the job site. (Worker’s Representative Submission)15

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her assigned modified work, despite the difficulty of the task: …I also realize that she does not speak English and that she may not have been able to read the [ergonomist’s] report. However, it would have been open to her to have someone read it to her….If she (or her daughter, who had contacted the Board a number of times on her behalf) had asked to speak to the ergonomist, they would likely have been told again about the hand warmers…The worker might also have been able to find better product through making some efforts on her own behalf in order to suggest alternatives to the employer.17 Workers who were unable to continue to work because of the unsuitability of modified work sometimes decided to stay off work without communicating their objection to their employer or the WSIB, and as a result they were determined to have failed to cooperate in the ESRTW process. RTW with a New Employer LMR Assessment Workers were sometimes provided with testing materials in languages other than English,18 though this was not done systematically. Accordingly, communication barriers sometimes hindered the LMR assessment by preventing testing or affecting results:

When provided, modified work arrangements sometimes failed to take into account workers’ limitations, including those related to English: The worker said that the only one of those jobs that was offered to her was data entry…She tried but could not do it because she did not know any English; she did not have enough schooling to do the work; and she was not able to concentrate. She was in a lot of pain. (Worker’s Testimony)16 Additionally, modified work arrangements sometimes required workers’ assistance in making the work suitable, which was problematic given workers’ English limitations. In one example, the Tribunal held that a worker was responsible for securing hand warmers needed to perform

With respect to the worker’s psychosocial makeup, [the worker’s lawyer] relied on the …psychovocational assessment report which stated that the worker’s English-language competence was so low that it was impossible to do an accurate assessment. (Worker’s Representative Submission)19 Incomplete or inaccurate assessments in turn led, at times, to the identification of inappropriate SEBs and the establishment of unsuitable LMR plans. Identification of SEB At time, workers were not consulted about the choice of SEB, which could be made without consideration of their limitations, including with regards to English:

13

Decision No. 99/10, 2011 ONWSIAT 465 (CanLII), http://canlii. ca/t/fm22d retrieved on 2014-03-13. 14 Decision No. 1728/10, 2010 ONWSIAT 2411 (CanLII), http:// canlii.ca/t/flcrl retrieved on 2014-05-08. 15 Decision No. 667/11, 2011 ONWSIAT 1284 (CanLII), http:// canlii.ca/t/fmvtc retrieved on 2014-03-12. 16 Decision No. 358/10, 2010 ONWSIAT 2251 (CanLII), http:// canlii.ca/t/fl80r retrieved on 2014-02-28.

17

Decision No. 484/11, 2011 ONWSIAT 752 (CanLII), http://canlii. ca/t/fmgh4 retrieved on 2014-03-12. 18 Decision No. 2366/09, 2010 ONWSIAT 2528 (CanLII), http:// canlii.ca/t/fld8g retrieved on 2014-03-04. 19 Decision No. 398/11, 2011 ONWSIAT 952 (CanLII), http://canlii. ca/t/fmgcc retrieved on 2014-03-09.

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She stated that she was being trained to be a receptionist but she denied that she could have worked as a receptionist because of her poor English and the pain that she has. (Worker’s Testimony)20 Workers sometimes asserted that they lacked the English skills to obtain or maintain jobs in their SEBs. Examples included the SEBs of cashier, customer service representative, parking lot attendant, dispatcher, construction supervisor, and security guard, to name but a few.

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While workers’ health affected their ESL training, the opposite was also true. In one extreme example, a spouse appealing for survivor benefits successfully claimed that her husband’s suicide was related to poor self-esteem, hopelessness and anxiety brought on by his lack of progress in ESL classes: [the spouse and other family members] felt strongly that [the worker’s] suicide was related to the problems he encountered while in the LMR process. They identified the most recent course which was designed to assist him in reading and writing English as being the biggest issue. He…found the course taken during the last few weeks of his life too difficult and there was too much homework…He felt that it was wrong that his teachers passed him when he spelled so poorly. (Nurse Case Manager Report)25

English-as-Second Language (ESL) Training Workers at times found the quality of ESL training lacking: He went on to say that the instructors changed nine times while he was attending the school. Each one had a different mentality, a different book, and a different outlook….He had a very good female instructor in the English as a second language program but she was dismissed because of a conflict with one of the students. None of the other instructors helped him. (Worker’s Testimony)21 In some cases, workers claimed that instructors inflated marks and removed assignments to ensure they passed their evaluations.22 As a result, some workers failed to learn enough English to obtain or maintain work in their SEB:

Workers facing such difficulties failed to progress, missed classes or stopped attending classes altogether, resulting in the determination that they failed to cooperate with their LMR plan. Academic Upgrading and Skills Training Workers at times had difficulties proceeding with academic upgrading or skills training partly because of their lack of English proficiency:

At the hearing, the worker testified that despite his lengthy participation in LMRS, he did not learn anything. He testified that he only developed an ability to copy sentences in the English language, but remained significantly illiterate. (Worker’s Testimony)23 Workers also had difficulties learning English because of pain and associated difficulties such as low concentration. However, these difficulties were sometimes interpreted as lack of effort or motivation: […] it was noted the worker’s progress with ESL had been slow. It was also noted that the worker consistently reported issues with pain, poor concentration, and difficulties sleeping… However, the teacher’s view of this was that the worker was not exerting sufficient effort. (LMR Service Provider Report)24

The worker testified that she found the voice recognition software training difficult because she was unable to recognize words and she needed additional ESL to allow her to operate the system. She had difficulty writing or using a keyboard because after five minutes her fingers would freeze up… She was only able to work at computer training for 20 to 25 min a day. (Worker’s Testimony)26 Their English limitations also posed a challenge for some on-the-job training: When he took part in the LMR co-op placement, he had difficulty dealing with people and in speaking English to them. He stated, ‘‘In my business I had the same customers and routine. In the co-op placement I required more skill in English. I was always a bit nervous. I stood beside the service advisor there and I did not learn very much’’. (Worker’s Testimony)27

20

Decision No. 768/11, 2011 ONWSIAT 962 (CanLII), http://canlii. ca/t/fmgdd retrieved on 2014-03-09. 21 Decision No. 2451/10, 2011 ONWSIAT 2219 (CanLII), http:// canlii.ca/t/fpgh9 retrieved on 2014-03-07. 22 Decision No. 1552/11, 2011 ONWSIAT 2000 (CanLII), http:// canlii.ca/t/fp483 retrieved on 2014-03-07. 23 Decision No. 1983/10, 2010 ONWSIAT 2384 (CanLII), http:// canlii.ca/t/flcq0 retrieved on 2014-03-07. 24 Decision No. 2236/10, 2011 ONWSIAT 680 (CanLII), http:// canlii.ca/t/fm6x4 retrieved on 2014-03-07.

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25

Decision No. 2301/10, 2011 ONWSIAT 462 (CanLII), http:// canlii.ca/t/fm1v9 retrieved on 2014-03-07. 26 Decision No. 1695/10, 2010 ONWSIAT 2847 (CanLII), http:// canlii.ca/t/flst8 retrieved on 2014-03-08. 27 Decision No. 209/11, 2011 ONWSIAT 1342 (CanLII), http:// canlii.ca/t/fn5z5 retrieved on 2014-03-07.

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Workers who failed to comply with or succeed in upgrading/training saw their LMR plans altered or discontinued. Job Search Workers’ English limitations could make traditional job searching impossible. At times, they required assistance from others: The worker stated she could not even read an advertisement in the newspaper… The worker stated that her instructor also assisted her with sending resumes and that she did not have any other interviews…she also had help from her children…she looked for 4-5 months and her benefits were ceased…she subsequently received social assistance. (Worker’s Testimony)28 When workers managed to secure interviews, their limited English made it difficult to get hired: …the worker recalled a 30-minute interview with the owner of a convenience store. He testified that the owner did not offer him a job because of his limited English language skills. The worker recalled another interview with the owner of a Laundromat. The job entailed managing money and taking care of washing machines. The worker testified that he was not hired for that job because of his limited English language skills. (Worker’s Testimony)29 These difficulties were particularly striking when the worker was seeking employment in a SEB that required some knowledge of English. For example, in the case of a former machine operator looking for work as a receptionist, the Tribunal stated: I accept her testimony that she did not receive a single reply from the approximately 200 applications that she made for jobs. I find that although she did well responding to questions in English, her English language skills are quite limited, particularly if she were to apply for a clerical/receptionist position where she would have to answer the telephones and prepare documentation in English.30 At times, workers decided to look for jobs in their language communities, or were encouraged to do so by the WSIB. 28

Decision No. 2512/10, 2011 ONWSIAT 210 (CanLII), http:// canlii.ca/t/fm0xz retrieved on 2014-03-09. 29 Decision No. 2349/10, 2010 ONWSIAT 2802 (CanLII), http:// canlii.ca/t/flqbl retrieved on 2014-03-09. 30 Decision No. 768/11, 2011 ONWSIAT 962 (CanLII), http://canlii. ca/t/fmgdd retrieved on 2014-03-09.

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However, workers experienced a number of barriers with that strategy: The above-noted excerpt [from the LMR assessment and plan] states that the worker might find something in his native community. The worker, however, does not reside in an area close to large Portuguesespeaking populations and it is therefore difficult to see him finding employment in that community. (Tribunal Vice-Chair)31 Eventually, he restricted his search to employment in his native community but found that all such jobs required physical labour, with which he had difficulty because of his prior back injury. (Worker’s Testimony)32 Since communities are permeable, service sectors jobs available in non-English speaking communities still required English proficiency. In addition, non-English speaking communities represent a smaller labour market which further constrained workers’ ability to secure employment. Despite their inability to find work in any community, and their conviction that they were permanently unemployable, these workers were eventually deemed employable by the WSIB and their benefits were cut and services terminated. As a result, some found themselves dependent on government assistance or on their children or other relatives.

Evaluation and Accommodation of English Limitations Evaluation of English Workers’ assessment of their English proficiency at times conflicted with that of employers, adjudicators, care providers, and instructors. In one example, a worker argued that suitable modified work was not available to him partly because of his English limitations. His English proficiency was disputed by the employer: …the accident employer contacted the adjudicator and complained that the worker did not have a problem with English language and then stated that it would be able to provide modified work for the worker…[The employer’s witness] testified that the worker’s English language ability was reasonably good, and was better than many of the other workers, to such an extent that he sometimes was used to 31 Decision No. 2366/09, 2010 ONWSIAT 2528 (CanLII), http:// canlii.ca/t/fld8g retrieved on 2014-03-09. 32 Decision No. 108/11, 2011 ONWSIAT 605 (CanLII), http://canlii. ca/t/fm718 retrieved on 2014-03-09.

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translate instructions from English to Portuguesespeaking workers. (Employer’s Communication with Adjudicator/Employer’s Witness)33 Disputes emerged as there lacked a systematic way to evaluate English proficiency. Instead, the Board and/or Tribunal relied on such subjective assessments as workers’ reaction during testimony. As a result, workers sometimes inadvertently hurt their case, for instance by proceeding without an interpreter. At times, the Board and/or Tribunal evaluated workers’ English proficiency based on vocational testing evaluations or ESL training (length of time of training, completion of training, scores obtained), though these criteria did not always reflect the worker’s English skills, as recognized by the Tribunal in one case: The various LMR progress reports identify the components of the worker’s ESL program, but make no assessment as to how she was progressing. When she reached the 12 week point, the reports simply states that the worker had successfully completed the ESL component of the program, with no details as to what she had learned and what her English language proficiency level was.34 The proper assessment of workers’ English proficiency was a central element in evaluating employability as well as the appropriateness of SOs, SEBs and LMR plans. Accommodation of English Limitations Workers experienced communication barriers with adjudicators throughout the process. This resulted in mistakes, omissions and inconsistencies which led to the questioning of their cooperation or credibility.35 In order to mitigate language barriers, the Board and/or Tribunal at times used translation and interpretation services: …the Board wrote the worker letters in both Farsi and English telling him he was required to attend school four hours per day, four days per week or his benefits would be suspended. (Tribunal Vice-Chair)36 Language accommodations however were not used systematically. Additionally, in some cases, the Board and/or Tribunal placed the responsibility for translation and/or interpretation on the worker: 33 Decision No. 1592/11, 2011 ONWSIAT canlii.ca/t/fpj5s retrieved on 2014-03-11. 34 Decision No. 955/11, 2011 ONWSIAT canlii.ca/t/fmltr retrieved on 2014-03-07. 35 Decision No. 955/11, 2011 ONWSIAT canlii.ca/t/fmltr retrieved on 2014-03-12. 36 Decision No. 2451/10, 2011 ONWSIAT canlii.ca/t/fpgh9 retrieved on 2014-03-12.

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Although the worker might well have had difficulty reading decision letters sent to her from the Board, she should not have had difficulty in obtaining someone to read the letters to her, or in understanding the letters when they were read to her. (Tribunal Vice-Chair)37 In the absence of systematic language accommodations, some workers relied on relatives for oral and written communications. They sometimes used multiple interpreters, compounding inconsistencies.

Conclusions Previous studies, many Ontario-based, have documented structural barriers to return to work such as lack of attention to accommodations by employers, unrealistic recovery guidelines, and untimely and inappropriate vocational retraining [23, 30, 32–40]. Our study contributes to this literature by untangling, through the voices of workers, employers, physicians and adjudicators, the interpersonal and structural barriers to RTW for linguistic minorities specifically. It adds to existing studies on this population that have focused on the role of communication-related interpersonal barriers by highlighting the role of language not only as a method of communication but a mechanism of power. Accordingly, our analysis revealed that lack of English proficiency left workers vulnerable to abuse by employers and incomprehension and misperception by care providers and adjudicators. Power differentials predicated on language led to the exploitation of workers and to their characterization as malingering, unintelligent, and/or uncooperative. These dynamics, while interactional in nature, may actually reflect systemic policies. It is worth noting, to that effect, that ‘‘language barriers’’ is included in the WSIB list of ‘‘Red Flags’’ for staff to use as indicators of potential fraud or wrongdoing.38 At the same time, a number of RTW policies and practices failed to properly consider or mitigate workers’ lack of English proficiency and other limitations. Namely, in some cases the assigned SO or SEB required more English skills than workers had; LMR testing tools were not available or administered in languages other than English; ESL training was of questionable quality and failed to account for workers’ physical and psychosocial

2272 (CanLII), http:// 1145 (CanLII), http:// 1145 (CanLII), http:// 2219 (CanLII), http://

37 Decision No. 1029/11, 2011 ONWSIAT 1293 (CanLII), http:// canlii.ca/t/fmvtx retrieved on 2014-04-29. 38 This information was obtained by the Industrial Accident Victims Group of Ontario (IAVGO) through a Freedom of Information request on the board’s surveillance practices. The document can be accessed here: http://iavgo.org/wp-content/uploads/2013/11/Surveillance-FOIPart-2.pdf.

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limitations; academic or skills training failed to account for workers’ English limitations; job search expectations were insensitive to workers’ realities; and English limitations were not evaluated or accommodated systematically. These interpersonal and structural barriers intertwined throughout the RTW process, negatively impacting workers’ eligibility to benefits and services and the appropriateness thereof, as well as their eventual return to work. Importantly, these barriers occur in the context of neoliberal reforms and employer pressures to reduce expenditures that have resulted in the WSIB increasingly cutting benefits and services through the process of injury recognition and claim management. These dynamics have also resulted in one-size-fits-all policies which have been shown to weaken the effectiveness of employment programming for population sub-groups [41]. The impact on workers has been highlighted in studies that have found that injured workers experience elevated rates of under/unemployment after their injury [42], and that linguistic minorities may have particularly high rates [14, 26, 27]. Our analysis supports these findings, as we found many cases of chronic unemployment, as well as of workers returning to work in low wage, risky, precarious jobs. To promote equity in access, the WSIB has opted to conduct outreach to non-official language communities and to provide information and services in multiple languages. These accommodation strategies are ad hoc, in that they are neither required by legislation or policy39 [43–45], nor applied systematically. Our results indicate a need to improve and expand the linguistic competence of the WSIB, namely through the systematic provision of interpretation and translation services. Recently, the WSIB dismantled its multilingual unit and, with the exception of French-language services, is now outsourcing translation and interpretation. It is currently unclear what effect this change will have on service provision in non-official languages, and on outreach and other efforts aimed at providing information on workers’ compensation to language minorities. Additionally, our results indicate a need to address the intangible factors— such as attitudes and perceptions—that impact social interactions, as well as the structural factors that impede equal access at every stage of the process. For example, TOELF/ IELTS exams could be used by the Board and/or Tribunal in 39

The federal government’s policy is to provide bilingual services, while provincial and municipal governments typically only support service provision in the language of the majority. There are exceptions, as illustrated by the Ontario French Language Services Act that guarantees access to provincial government services in French in 25 areas with significant numbers of Franco-Ontarians. On the legislative side, Canadian, provincial and territorial human rights laws set out the ‘‘duty to accommodate’’ the different needs of clients in service provision. While language is not explicitly protected, it is potentially so if it masks discrimination based on race or place of origin.

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cases of conflict surrounding the assessment of a worker’s English proficiency. In September 2011, in response to low and declining RTW rates and to criticisms about the quality and cost of the program, a new work reintegration strategy that merges the ESRTW and LMR components became available to all Ontario workers. Some of its features include the direct planning, management and oversight of RTW by in-house WSIB Work Reintegration professionals; strengthened requirements and enhanced monitoring of training and education providers; increased worker input and choice in their RTW plans; and increased simplicity of communication between the WSIB and workers, including access to a face-to-face case manager in cases of disability lasting more than 3 months [46]. While these changes appear to address some of the issues identified in our study, it is currently unclear to what extent they will result in meaningful improvements for workers in general and linguistic minorities in particular. Worker choice, for instance, may continue to be limited by cost objectives and restrictive bureaucracy [47]. Our study is limited by the fact that we analyzed WSIAT appeal decisions, which may over-emphasize the scale of language-related difficulties. On the other hand, appeal decisions reflect the experiences of a minority of workers who are able to navigate the system and selfadvocate, and as such our analysis may conceal the difficulties experienced by more vulnerable linguistic minority claimants. Additionally, our analysis is not exhaustive, and may not have identified all structural barriers to RTW, such as those related to the length of ESL training [23] or the nature of job search training [48]. There is a need for further research—through policy analysis and qualitative interviews with claimants, front-line staff, administrators and other key informants—to look at structural access barriers for linguistic minorities at all stages of the compensation process, and across different jurisdictions. As well, there is a need to examine the employment, health and social outcomes of work-related injury or illness among linguistic minorities. Regardless of limitations, our findings can help inform efforts to improve service delivery for linguistic minorities in Ontario and other jurisdictions, resulting in reduced impoverishment and improved health and well-being for this growing yet marginalized population. Acknowledgments This study was funded by Research Grants from McMaster University’s School of Labour Studies and McMaster University Arts Research Board. The author wishes to thank Alicia Shaw for her assistance with researching the appeal decisions and Joel Schwartz for his helpful comments on this manuscript. Conflict of interest Author Stephanie Premji declares that she has no conflict of interest.

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