Common Client Questions

1Am I Covered by WSIB if I’m Hurt at Work?

To be entitled to benefits and services under the Workplace Safety and Insurance Act, 1997 (WSIA/Act), you need to be a "worker" employed in a business or industry that is "covered" by the Act.

A worker is defined as a person employed under a contract of service or apprenticeship and includes, but is not limited to:

  • A learner (including placement through the Ontario Works Program
  • A student
  • An auxiliary member of a police force
  • A member of a municipal volunteer ambulance brigade
  • Certain members of a municipal volunteer fire brigade
  • Deemed workers (those who are not covered by the Act, but can apply for coverage)

The Act contains lists of types of industries and these lists are called Schedule 1 and Schedule 2. A worker employed in an industry or business listed in Schedule 1 or Schedule 2 of the Act is automatically covered.

Schedule 1 Industries include (but are not limited to): mining and related industries; manufacturing; transportation and storage; retail and wholesale trades; construction; and a variety of service industries including temporary agencies, hospitality and domestic workers.

Schedule 2 Industries include (but are not limited to): municipal and provincial governments; railways; and telephone companies licensed by the federal government.

Some employers can make an application to WSIB to be treated like a covered industry. "By application" industries include (but are not limited to): financial institutions; health care practitioner practices; trade unions; private day cares; and travel agencies.

If you are unsure as to whether your situation falls under the Act, contact the WSIB or our office for more information.

2I Have A WSIB Claim, What Am I Entitled To?

The type and amount of benefits available is determined by the Ontario government law. The following is a brief description of what is currently available under the WSIB system:

HEALTH CARE BENEFITS: If you require treatment because of your injury, the Board will consider paying for it, based on the laws and its own policies.

LOSS OF EARNINGS BENEFITS: If you are unable to do your own job, you are paid benefits based on a percentage of net your net income. For all accidents after January 1, 1998, that amount is 85% of your net average earnings. You will receive full benefit entitlement if you are totally disabled from any job, or partially disabled (that is, you can't do your own job, and the employer is unable to provide you with work within your restrictions). You and your employer are expected to work together to get you back to work as soon as possible, including modified work if that is available.

WORK TRANSITION PLANS (formerly called Labour Market Re-entry Plans (LMR)): If your employer cannot accommodate you with a permanent job in keeping with your restrictions, the board will prepare a plan to determine the best way to return you to the workforce in a suitable position. If that involves retraining, the board will pay for same.

NON-ECONOMIC LOSS (NEL) AWARD: You may be entitled to this if you sustain an injury that becomes permanent, and the Board recognizes this as a permanent impairment. A permanent impairment is defined as any permanent physical or functional abnormality or loss (including disfigurement) which results from an injury, and any psychological damage arising from the abnormality or loss. This is usually a one-time lump sum payment to reflect pain and suffering, and loss of enjoyment of life. However, it is calculated on a fairly arbitrary basis. The Board provides you with a list of doctors from which you will choose one, and undergo an examination. The doctor will write a report reflecting the extent of your physical limitations, and the Board will perform a calculation of your entitlement.

There may be further benefits available to you depending on the date of your accident, and the circumstances involved in your specific case that are not mentioned here. Contact our office for a free, no obligation consultation to see how we can help you.

3Do I Have to Return to Work if I’m Not Ready?

You are expected by the WSIB to cooperate fully in any and all return to work discussions, negotiations, and trials. It is WSIB's policy to commence the work reintegration process as soon as an injury occurs, in order to establish and maintain communication with your employer, and work toward a safe and early return to work.

The WSIB’s role is to provide the necessary return to work services to support both you and your employer in achieving a successful return to work. Workers and employers are primarily responsible for planning the return to work, and are required to cooperate and fulfill all of their obligations as defined by the WSIB.

Any return to work plan will be based on your medical status, and any restrictions that are identified by your treating practitioners will be taken into consideration when identifying suitable modified work. Often times, you may not feel ready to return to work as you may be apprehensive about re-injury, however it is the goal of the WSIB to ensure that the work you return to is safe, and within your physical restrictions.

You will have input into the return to work process, and your concerns should be addressed. Sometimes, your employer and/or the WSIB may feel that you are able to return to work, however your treating practitioner may not agree. This is often the source of return to work disputes. The WSIB provides dispute resolution services in such cases where obstacles to the return to work are identified. It is strongly advisable to have a legal representative to guide and assist you through this process.

If you have questions or concerns about the return to work process, contact our office for a free consultation.

4Can I Sue my Employer?

When a worker is injured on the job, and it is due to negligence on the part of the employer, the first instinct is a desire to litigate. Our office often receives phone calls regarding this question, “Can I sue my employer?”

In most cases, if you sustain a work-related injury, and work in an industry that is covered by the Workplace Safety and Insurance Act, 1997 (WSIA), then you cannot sue your employer in court for your injuries.

The WSIA is a essentially a system of workplace insurance that is a “nofault” system. This means that you can get workplace insurance benefits without proving that your employer was to blame. Even if you think that the accident at work was your own fault, you are still entitled to benefits and services from the WSIB in most cases.

There may be exceptions to the rule, however, as each case is unique. It is best to consult with a lawyer or paralegal regarding your case and your rights, if you have any doubt regarding your situation.

Contact our office for a free consultation regarding your claim.

5Car Accidents While at Work

In situations where you have been involved in a car accident while you were in the course of your employment, you may have a choice as to whether to elect WSIB benefits, or to commence a legal action through the courts. The election would depend on the circumstances of the collision.

As long as the other driver was not in the course of his or her employment, there is no concern about the right to sue. You would have the option to choose between suing the other driver, or pursuing your claim through the Workplace Safety and Insurance Board. However, things get complicated if the other driver was also in the course of his/her employment.

If both you and the other driver, were in the course of employment, and employed by a company that falls under Schedule 1 of the WSIA, the right to sue no longer applies, and you will have no choice but to pursue your claim through the WSIB.

However, if and the other driver were in the course of employment, and you were employed by a company that falls under Schedule 1, and the other driver employed by a company that falls under Schedule 2 (or vice versa), you may elect whether or not you wish to initiate a claim against that driver, or to pursue your claim through the WSIB.

It is important to understand the different benefits that are available to you through WSIB, as well as through the Statutory Accident Benefits Schedule. These systems differ in the level of benefits and compensation that may be available to you.

In such circumstances, it is always best to seek independent legal advice before making any elections, as it is difficult to reverse an election once one has been made.

If you have been involved in a car accident while at work, contact us today for a consultation regarding your legal rights and options.

6What About Benefit Plans and Disability?

Many workers are covered under private disability plans through their employment benefit package. These plans are usually provided by insurance companies, and there is a wide variety of the type of coverage that might be found in such a plan. It may provide coverage for specified medical expenses, with percentage limits on what will be covered. There may be coverage for short term disabilities and often, long term disabilities. Life insurance is also frequently included.

Some of these plans exclude work accidents, while others will provide coverage for work injuries (but usually require a reduction for any workers compensation benefits received). For work accidents, if you are getting your full workers' compensation, there may or may not be additional benefits available depending on the calculation under the policy. In those situations where WSIB has denied your claim, and you are engaged in the lengthy appeal process, it would make sense to apply for your benefits under such plans to ensure you have income in the meantime.

If you were covered at your place of employment under a group insurance plan at the time you were injured, you may still be eligible for short term and long term disability benefits regardless of whether your employer fires you, or stops providing ongoing benefit coverage after that time.

These types of policies often pay benefits up to age 65 if the disability is continuous. The key date for these policies is whether you were covered when the disability starts. If so, no matter what happens to your employment or policy coverage later on, you have a right to pursue a claim to disability benefits on an ongoing basis.

For more information regarding applications and eligibility for disability benefits under your employee benefit plan, contact our office for a free consultation. While we are not able to litigate disability claims on your behalf, we can refer you to a qualified lawyer who will be able to assist you with your claim.

7Am I Eligible for CPP Disability Benefits?

The Canada Pension Plan Disability Program provides financial assistance to CPP contributors who are incapable of working due to disability. Benefits are paid monthly to eligible applicants and their dependant children.

In order to qualify for CPP Disability, you must meet the following criteria:

  • be under age 65;
  • have earned a specified minimum amount and contributed to the CPP while working for a minimum number of years (4 out of the last 6 years, or 3 out of the last 6 years if you have 25 or more years of contributions); and
  • have a severe and prolonged disability according to the CPP legislation.

As long as you meet the minimum contributory requirements, then all you must establish is that you meet the test for disability as defined by the Act by the date of your Minimum Qualifying Period (MQP). The definition of disability used by the Canada Pension Plan is explained at Section 42(2) of the Act. This states that:

(a) a person shall be considered to be disabled only if she is determined in prescribed manner to have a severe and prolonged mental or physical disability, and for the purposes of this paragraph,

i) a disability is severe only if by reason thereof the person in respect of whom the determination is made is incapable regularly of pursuing any substantially gainful occupation, and

ii) a disability is prolonged only if it is determined in prescribed manner that the disability is likely to be long continued and of indefinite duration or is likely to result in death.

It is important to realize that the onus is on the Applicant to establish his or her case for entitlement; that is, the responsibility lies with you to ensure that all relevant medical documentation is submitted with your application.

The government does not provide an advocacy service to assist you in the appeals procedure, however this does not mean that you have to go through this process alone. Our firm will personally prepare you for your CPP Disability Claim. We can assist you with your initial application, and represent you at your hearing before the Review Tribunal, and at the level of the Pension Appeals Board if required.

Contact our office for your free consultation today.

8How Do I Appeal WSIB Decisions?

Any time that you are notified by your WSIB Case Manager that a decision is being made in your claim, make sure you request that decision in writing. Once you receive the letter from your Case Manager, and you disagree with the decision that has been made, notice of your intent to appeal that decision must be put in writing, within the specified deadline. The decision letter will notify you as to when that deadline may be; often it is 6 months from the date of the decision. It is best to fax your letter, or send via registered mail, so that you have proof submission.

Once you submit your intent to appeal, the WSIB will provide you with a complete copy of your WSIB file, along with the Objection Form. The Objection Form must be completed and submitted to the WSIB in order to initiate the appeals process. It is on this form that you indicate what the issue in dispute is, and what resolution you are seeking as a result of your appeal.

Once you submit the completed Objection Form, your issue will be referred to the WSIB Appeals Branch, where an Appeals Resolution Officer will be assigned to your case. There are different methods of resolution available through the WSIB Appeals System, as follows:

  • A 60-Day Option, wherein an Appeals Resolution Officer reviews your claim and makes a decision based on the existing documentation on file within 60 days.
  • Oral Hearing wherein you attend the office of the WSIB to present your case before an Appeals Resolution Officer. During the hearing, you will be expected to provide testimony regarding your issue(s), and make legal arguments as to why your objection should be allowed.
  • Written Submissions. Sometimes it is not necessary to have an in-person oral hearing, particularly when the issue under appeal is based upon medical evidentiary issues, or legal principles, rather than factual disputes.

Note that your employer has the right to participate in the Appeals Process. They also have the right to appeal any decisions made by the WSIB./p>

For more information regarding your rights in the Appeals process, contact our office for a free consultation./p>

9What if I’m Denied CPP Disability?

After you submit your application for CPP Disability Benefits, you will receive a decision in writing, citing the reasons for either allowing or denying your application. If your application has been denied, the next step in the appeals process is to request a Reconsideration of this decision.

A Reconsideration request must be submitted within 90 days of the initial decision. Your request must explain why you disagree with the conclusions reached in the original decision, as well as provide any other available evidence that would support your claim for CPP Disability Benefits. Once your request for Reconsideration is received by Service Canada, you will often receive a final decision within 90 days.

If, after receiving your request for Reconsideration, the HRSDC maintains the decision to deny your entitlement to CPP Disability Benefits, the next step is to file a Notice of Appeal with the Office of the Commissioner of Review Tribunals (OCRT). The OCRT arranges for a hearing wherein a three-person panel hears your case, and decides the outcome of your appeals after the completion of the hearing. At the hearing, you will be expected to provide testimony regarding your disability and the reasons for your inability to work. Note that the HRSDC will send their own representative to attend the hearing in order to ensure that their position is presented as well.

At the completion of the hearing, the Panel will not advise you as to their decision on that same day. Rather, you will receive a detailed explanation of their decision in writing. If the OCRT denies your claim, the next level of appeal is before the Pension Appeals Board (PAB), and you must apply for leave to appeal. What that means is that you are not automatically granted the opportunity to appeal the Review Tribunal decision. You must apply, and provide reasons as to why the Pension Appeals Board should hear your case.

If the PAB grants you leave to appeal, then a further hearing is arranged wherein you present your case before a panel of 3 judges. Most often at these hearings, the HRSDC will have a lawyer present, as well as their own doctor to provide opinions regarding your medical condition. Again, you do not receive a decision on the same day as your hearing. It is conveyed in writing and sent to all parties.

If you receive a denial from the PAB, then you can take your case to the Federal Court of Appeal. For more information regarding your rights in the Appeals process, contact our office for a free consultation.

10Do I Really Need a Representative?

You can represent yourself in any WSIB or CPP related proceedings, however by doing so you place yourself at a great disadvantage.

Most often in WSIB related appeals, the employer will retain a legal representative (either a lawyer or paralegal) who is experienced in the area of WSIB law, and whose goal it will be to minimize the benefits paid to you, or have your claim denied outright. In this scenario, it is best to have your own representative to protect your rights and interests. The WSIB law is complex, and new cases are constantly issued by the Workplace Safety and Insurance Appeals Tribunal which impact the interpretation and application of the various WSIB policies.

Similarly, at CPP Disability Appeals before the Office of the Commissioner of Review Tribunals (OCRT) and the Pension Appeals Board (PAB), the government sends their own representative to ensure that their decision to deny you entitlement to benefits is well articulated. The government does not provide you with an advocacy service, and therefore you are on your own in trying to understand the CPP Disability law, and how new cases issued by the Pension Appeals Board, or the Federal Court of Appeal, impact this law and its interpretation.

Different representatives charge different fees for their services, so it is in your interest to contact more than one for a consultation and quote regarding the costs for their services. A lawyer or paralegal can represent you, but make sure that he or she is qualified to do so and licensed by the Law Society of Upper Canada (LSUC). Recent changes now require all paralegals to be licensed by the LSUC in order to practice in permitted areas. This regulation of the paralegal profession means that the public has access to paralegals who meet high standards of education, competence and professional conduct. (For more information on the regulation of paralegals, visit the LSUC website at www.lsuc.on.ca).

Our office offers a free, no obligation consultation regarding your case. Contact us today to arrange an appointment and see how we can help you.

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