Injured at the workplace | WSIB benefits and who you can sue
By Pace Law | December 30, 2019
In this article we are going to demystify how a worker in Ontario can claim compensation for a workplace injury. We will explain in detail the role the WSIB plays, and how making a claim can limit your options for compensation.
Ontario leads the way in workplace injuries
According to a 2019 report from the University of Regina, Ontario’s workplace injury insurance coverage is amongst the lowest compared to other provinces. Only 76% of workers are eligible to receive benefits from the WSIB in the event of an injury caused at work.
In 2017, there were 59,529 workplace injuries that caused workers to take time off work. There were 76 deaths, which is second only to Alberta.
What is the WSIB in Ontario?
The Workplace Safety and Insurance Board of Ontario is a provincial agency that provides insurance for workers and promotes a safer work environment. The WSIB’s authority falls under the Workplace Safety and Insurance Act 1997.
The board receives and processes accident and injury reports, and then pays compensation to workers. The WSIB covers workers’ income-replacement and healthcare benefits until they are back on their feet and able to resume working. It also protects employers from claims arising out of workplace injuries.
Continue reading to understand how workplace injuries have to be handled.
Types of workplace injuries
The WSIB deals with hundreds of different injuries from workers across Ontario. These are categorized as one of five types of workplace injuries:
- Accidents – These are injuries that occur due to one incident, such as a slip and fall accident or a back injury caused by lifting a heavy object.
- Disablement – Injuries that develop over a prolonged period of time. An example is a repetitive strain injury or injuries due to repetitive work on the assembly line.
- Psychological conditions – Psychological injuries can occur due to the nature of the work, such as being asked to perform dangerous tasks, working in mentally taxing environments, and even developing a psychological condition due to workplace stress.
- Occupational diseases – Exposure to chemicals, toxic substances, and unhygienic conditions can cause serious illnesses. Examples include lung cancer due to asbestos, radiation poisoning, or infections due to contamination.
- Hearing loss – Being exposed to loud noises and/or prolonged exposure to noisy environments can damage employees’ hearing and cause hearing loss.
In addition, if a worker has died due to a workplace related injury or illness, the worker’s spouse or other dependant may file a survivors’ benefits claim.
What constitutes a workplace injury?
A workplace injury can vary from something relatively minor, such as a small cut or bruise, to a fatal accident. According to the WSIB, the most common causes of workplace injuries are:
- Injuries due to overexertion
- Slip and fall accidents due to debris or wet floors
- Falls from heights due to faulty equipment
- Injuries caused by falling objects and collisions with objects
- Getting entangled in a machine
- Repetitive motion injuries
- Hearing loss due to noisy environments
- Workplace violence
How do I report a workplace injury in Ontario?
The WSIB requires both the employee and employer to report a workplace accident. If an injury is not reported to the WSIB, no claim for compensation can be made.
An employee must file a claim within six months from the date of injury. If you have been injured or have discovered an illness, inform your employer right away and seek medical attention. Tell your employer about the extent of your injuries, as well as about any treatment you have received. You must report the injury to the WSIB if:
- You receive treatment from a health professional; or
- Are unable to return to work; or
- You are being paid less or are receiving fewer hours of work.
In simple terms, if you see a doctor, take time off work, or your pay is affected as a result of a workplace injury, you need to inform the WSIB. Use Form 6 to file a WSIB claim directly, or get in touch with a workplace injury lawyer.
Did you know you have options to choose a health professional and do not have to go to one ‘prescribed’ by your employer.
An employer is required to investigate, record the incident in detail, and take corrective steps to prevent the same workplace injury occurring in future. An employer must report a workplace injury to the WSIB within 3 days of learning about it if:
- The employee receives treatment from a health professional; or
- Takes time off work/is absent from work; or
- Earns less than his or her regular pay.
Therefore, if an employee only receives first aid treatment, does not take time off work, and continues to earn at the same rate as he or she did prior the incident, the accident does not have to be reported to the WSIB. Speak to a lawyer before you file your Form 7 report.
Do you still get paid if you get hurt at work?
Your employer must pay you wages and benefits on the day you get hurt at work. Moreover, they must take you for medical treatment or pay your transportation costs.
Who is responsible for your treatment and benefits if you suffer a workplace injury or illness?
If you suffer a workplace injury that only requires first aid treatment, it may not have to be reported to the WSIB. That said, if you have broken your glasses, damaged your dentures or other health device, a claim to the WSIB can be submitted.
The employer has to pay the travel costs or take you to get medical treatment. It must also pay your wages and benefits for the day on which you were injured.
The WSIB offers benefits and services during recovery:
Healthcare – The WSIB pays for necessary and appropriate healthcare required to treat your injury. This covers the cost of treatment by doctors, prescription medication, and assistive devices.
Los of Earnings benefits – LoE benefits can compensate up to 85% of your total earnings loss – from the day after your injury until you are no longer impaired or you no longer suffer a wage loss.
Employment benefits – Your employer must continue to make contributions to your employment benefits, if you keep paying your contributions, throughout the first year you are unable to work.
Retirement benefits – If you receive LoE benefits for more than 12 consecutive months, the WSIB pays a retirement benefit after the age of 65. This is paid from the amount set aside from your LoE benefits.
Non-economic loss – An NEL award compensates for the permanent effect the workplace injury has had on your personal life. WSIB pays determines this on the basis of permanent impairment and awards it as a lump sum.
Can I sue my employer for work injury in Ontario?
Typically, a worker in Ontario cannot sue his or her employer in Ontario if that individual is insured by the WSIB. The Workplace Safety and Insurance Act limits liability for employers in the province. However, the situation becomes more complex if injuries are caused by a third party’s negligence – i.e. someone not employed by your employer.
The question as to whether or not a worker may sue the employer for a workplace injury depends on the industry in which the worker is employed.
Schedule 1 – If you are a Schedule 1 employee (industries such as construction, mining and manufacturing), you cannot sue you employer. Instead, you must pursue a WSIB claim.
Schedule 2 – Similarly, you must pursue a WSIB claim for a workplace injury. However, if you are injured at the workplace due to a third party’s actions (another employee, for instance), you may sue your employer.
No WSIB coverage – If your employer does not provide WSIB coverage, you may sue your employer for your injury.
Did your employer argue that you are not an employee but, rather, a ‘consultant.’ A court will assess the status of a worker on the basis of his or her working hours, rather than on the basis of the employer’s assertion regarding the nature of the worker’s employment.
Need to file a WSIB claim? Speak to a personal injury lawyer in Toronto first! WSIB claims need to be drafted carefully to ensure the injury or illness is correctly explained. An experienced workplace injury lawyer will also provide you with comprehensive information about your best options. Not many people realize that once you accept benefits from the WSIB, you release your employer from liability.