Editor’s Note: Employment Matters is a new column for The Voice from local lawyer Ilija Dimeski.
In honour of Day of Mourning (April 28), it is worth examining the worker’s compensation system. We mourn the dead, and fight for the living.
In Ontario, workers who are injured in the course of their employment may receive compensation through the Workplace Safety and Insurance Board (WSIB). In return, they cannot sue their employer for their injuries at civil court.
This is the so-called “historic trade-off.” It is a no-fault insurance scheme. Essentially, a worker or a worker’s survivors may receive benefits without having to prove that their employer was at fault for the workplace injury, occupational disease or death, and in exchange, employers are protected from being sued at civil court.
Note that not all workers are covered under this scheme as some professions are excluded. However, employers may choose to opt in.
A worker under the WSIB scheme also includes volunteers, students, learners and deemed workers. There is a six-month time limit to file a claim with the WSIB after the injury. The claim can be filed by a worker, the employer, or the doctor.
Types of Injuries
Accident: A single incident, such as breaking a bone after a slip and fall.
Disablement: An injury that is caused gradually over a period of time, such as repetitive strain injury from performing the same motion over and over again on the assembly line.
Psychological: Developing a psychological condition, such as depression or anxiety, due to workplace conditions or as a result of getting injured and being off work for a prolonged period.
Occupational Disease: Exposure to toxic chemicals in the workplace, such as developing lung cancer after being exposed to asbestos.
Hearing Loss: Developing a hearing loss, even a partial one, after being exposed to loud noises in the workplace.
Types of Benefits Available
Lost Wages (Loss of Earnings): Can receive up to 85 per cent of your net earnings.
Employment Benefits: Employers are obligated to continue contributing to your benefits (health and pension) in the first year, if you also continue to contribute your portion.
Health Care: Coverage of the cost of treatment by doctors, prescription medication and assistive devices. There is also additional coverage for more serious injuries.
Non-Economic Loss: A lump-sum payment for any permanent effect of the workplace injury.
Re-Employment: Obligation of the employer to offer you work after an injury, in some situations.
Work Transition: Retraining offered for other work.
Retirement Benefits: Payable at 65 years as annuity, if a worker was already in receipt of Loss of Earnings for more than 12 consecutive months.
Overlap with the Ontario Human Rights Code
While workers may not be able to sue their employer at civil court for the injury, there is another avenue that may be open to them depending on what happens after their injury.
Under the Human Rights Code, an injury may be considered a disability, which triggers employer’s duty to accommodate to the point of undue hardship. Usually this means providing modified duties consistent with the workers’ limitations and restrictions. If the employer fails to provide this, they could be sued for discrimination before the Human Rights Tribunal of Ontario.
Similarly, if the employer decides to terminate the employment, and if the termination was in part due to the worker’s disability/injury, then that could be considered discrimination as well.
There also seems to be a misconception that a worker is only entitled to accommodation (e.g. modified duties) if they were injured at work and not if they were injured outside of the workplace or work duties. This is false. Regardless of where the injury takes place, if it is a disability, the Human Rights Code obligates the employer to accommodate the worker just the same.
Potential for Civil Court actions
In a recent case, a worker was forced to resign (constructive dismissal) due to workplace harassment pertaining to her injury. It was determined that the worker was allowed to sue the employer at court for reasonable notice pay, and aggravated, moral, and punitive awards.
Issues with the system
The WSIB system is fully funded by employers through premiums. If there are a large number of claims filed by workers of a particular employer, then the WSIB may choose to increase the premium the employer has to pay because the workplace is considered to be high risk. Alternatively, the WSIB may reduce premiums payable to reward employers with clean claims history. Although the approval of a claim is between the worker and the WSIB only, employers have a stake in the system and may decide to participate in the WSIB process in order to convince the WSIB decision maker to deny or reduce the benefits to the worker.
There has been a pattern of denials seen at the WSIB. For example, workers who are found to have a pre-existing condition, such as degenerative disc disease, may find themselves being denied more often than others. Essentially, even if a workplace injury was to occur, the worker’s pre-existing condition is blamed for the level of impairment and is used as a justification to deny or reduce benefits.
The WSIB also engages in a practice called “deeming,” where they reduce benefits by presuming the worker could have found another job since they have been retrained. Some advocates have pointed out that the WSIB essentially pretends the worker has the ability to do a job the WSIB says exists, and cuts the benefits even if the worker was unable to find such a job.
Injured workers often find themselves in precarious and vulnerable situations. Their lives may never be the same again. One would hope that in such a tragic situation, the worker would have full access to WSIB benefits and that would be the end of it. Unfortunately, workers may find that their injury was just the beginning of their pain and suffering and they must now begin a legal battle with the WSIB.
Injured workers deserve better.
Editor’s note: The content in this article is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind.
- Ilija Dimeski is an employment and human rights lawyer. Do you have a workplace issue or question about your rights at work? Write to us. Click here to begin.