Update on WSIB claims and benefits
Who is eligible for Workplace Safety and Insurance Benefits?
Anyone who has been injured while in the course of employment, and whose employer has WSIB coverage or is required to have coverage is eligible for benefits.
How much time do I have to submit a claim?
You must bring your workplace injury to the attention of the Workplace Safety and Insurance Board (WSIB) within six months of the injury or learning of the disease. If you do not, the WSIB will, in most circumstances, deny your claim for benefits and it can be time-consuming and expensive to get the time limit extended.
How do I make my claim?
If you sustain a workplace injury/disease your claim can be established by:
- Completing a workers’ report of injury/disease (Form 6) to the WSIB (available on the WSIB website or from a WSIB office)
- Seeking medical attention and reporting your injury as work-related [the treating physician is required by law to submit a report (Form 8) to the WSIB]
- Reporting your injury to your employer [they are required to complete an employers’ report of injury (Form 7) if you require healthcare attention].
What do I do once my claim is set up?
The WSIB assigns a claim number to each individual claim for benefits. This will be communicated to you and you should keep it available for reference every time you telephone or write the WSIB. Every piece of correspondence that you send to the WSIB should have your name and claim number on it. Remember that if you move or change your phone number you should advise the WSIB as soon as possible.
How will the WSIB make a decision on my claim?
To determine initial entitlement to benefits, the WSIB reviews the accident history and the medical diagnosis. In many cases, it is simple to confirm that there is a causal relationship between the accident and the diagnosis. However, when the accident history is not clear, the employer is objecting or information is outstanding, injured workers can experience delays in receiving benefits.
Am I entitled to any other benefits while I am waiting for the WSIB to make a decision?
There can be considerable delays in having a claim processed. This may leave an injured worker financially strapped. Depending on the circumstances, you may be entitled to Employment Insurance, Long-Term Disability (LTD) benefits, Ontario Disability Support Program (ODSP), or Canada Pension Plan (CPP) Disability benefits. You should not automatically assume that you will not qualify. Investigate each option to determine if you meet the eligibility criteria. In most cases, if another agency is aware that you are awaiting a benefit decision from the WSIB, they will require you to sign an assignment of benefits form, to ensure that they are repaid when benefits are authorized.
How can I expedite the processing of my claim?
The WSIB will routinely forward forms and reports to you, that may be needed to make a decision in your claim or continue paying benefits. You should not delay in completing the forms or taking them to your physician for completion if required. If the WSIB determines that they have not received the completed reports in a timely manner, they can, and will most likely, reduce, suspend, or terminate benefits.
Once my claim is approved, how will my benefits be authorized?
Loss of Earnings (LOE) benefits are paid based on 85% of pre-injury net average earnings. In other words, you will be entitled to 85% of your take-home pay, subject to the maximum and the minimum insurable rate for the year of your injury. Generally the first 12 weeks of benefits are paid based on your actual earnings at the time of the injury. If in the WSIB’s opinion you are not a permanent regular worker, your earnings may be adjusted at the 13th week. The WSIB will request your earnings information, generally for the two years prior to your injury, and determine your average weekly earnings. If you are a seasonal worker, this will usually result in a downwards adjustment.
Will the WSIB tell me when to return to work?
Since the new Workplace Safety and Insurance Act came into effect, employers and injured workers are supposed to work together in the return to work process. This means that the WSIB only intervenes when it appears that the workplace parties are not achieving a successful result.
If problems arise during the return to work process, the WSIB offers mediation services. Also, there is a requirement for injured workers to keep their employer updated regarding medical progress. This can easily be accomplished by telephoning the appropriate person with a status update.
I do not agree with the duties that I’ve been assigned upon my return to work. What should I do?
If you do not feel you are capable of performing the duties that have been assigned to you upon your return to work, you can do one of three things. Through the WSIB, you can request intervention by the adjudicator involved in your case, make a formal objection in writing, or request a return to work mediation.
The mediation process allows the injured worker and the employer to meet with a WSIB mediator to discuss a mutually agreeable plan for returning to work. If either party should decide to back out of the mediation process, the issue would be referred by to the case adjudicator for a final decision. Please note that the mediation process is confidential and will not be communicated to the adjudicator or influence their decision.
What is the time limit for an appeal?
Decisions issued by the WSIB indicate that if there is an issue in dispute, an objection must be communicated to the Board in writing within the specified time limit. The appeal time limit for return to work and labour market re-entry plans is 30 days. The time limit for all other decisions is six months. If you miss the time limit, the WSIB will not likely process your objection. It is a good idea to follow-up to verify that the appropriate person received the objection letter.
Do I have access to my WSIB file?
Every injured worker should request a copy of their WSIB file, whether there is an issue in dispute or not. The claim file will provide insight into the decisions that are being made with regard to the benefit rate, medical treatment, return to work and various other issues. It is a good idea to request the file updates every few months to ensure that you are up to date regarding the decisions that are being made with regard to your file.
Is there financial assistance available for retaining consulting services?
If you require financial assistance with representation, please check with your union representative. Many unions are now providing financial support for these services.
Can you offer me any other general tips?
- Keep copies of all documentation forwarded to the WSIB.
- The WSIB can only make decisions based on the documentation that is forwarded to them – i.e. if your physician authorizes you off work but does not communicate this to the Board in writing, then lost time benefits are not likely to be authorized.
- Also, if your physician takes you off work, they will need to provide the WSIB with a detailed report. Please note that a physician’s note will not suffice.
- Read all correspondence sent out by the WSIB as you may miss something important. Many injured workers do not read the literature sent out by the Board because they do not believe that they will be on benefits for a significant period of time.
- When possible, have recommended medical treatment pre-approved to ensure that you do not have to pay for the treatment out of your own pocket and then have to request reimbursement by the WSIB.
- Ensure that you forward all original receipts that you are entitled to be reimbursed for as soon as possible. Do not let them build up. The WSIB has a new health care payment system and requests for reimbursement can take up to eight to twelve weeks to process.
Read more on issues related to Workers’ Compensation or contact our workers’ compensation consultant, Peggy King by email at email@example.com or by calling 613-231-8212.
We often get calls from people who have received, or are in the process of receiving WSIB (Worker’s Compensation) Benefits and now want to sue their employer.
Let me preface this Toronto Injury Lawyer Blog by stating that our law firm DOES NOT handle WSIB matters. There are a handful of lawyers across the province who practice in this area, but those numbers are dwindling for a variety of reasons which should be the subject of a different blog post.
In any event, there are situations where an employee gets injured in the course of their employment. The employer may file a claim to the WSIB. The reason the employer does this so quickly, is because it’s the LAW to report any workplace injury to WSIB and to open a claim.
It’s then up to the injured employee to decide whether or not they want to pursue a WSIB claim, or whether or not they want to SUE using lawyers like the ones from Goldfinger Injury Lawyers. You CANNOT do both! In some instances, you cannot sue regardless of the situation. This all depends on whether or not your employer is designated as a Schedule 1 or Schedule 2 employer. The good people at the WSIB will be able to assist you in that regard. You can find out more information on the WSIB from their website at WSIB.ON.CA
On one example, a person who was working at a cold storage warehouse lost his arm when an industrial freezer lock broke, and them slammed in to his arm, causing it to shatter completely. The arm later had to be amputated.
The injured worker received loss of wage benefits, a lump sum payment along with all of his rehabilitation costs, and retraining costs covered by the WSIB. The Ministry of Labour conducted an investigation and later penalized the employer.The injured worker and his family then wanted to sue their employer for unsafe work conditions under the Occupational Health and Safety Act.
This Ontario Court of Appeal decision summarized the law on the congruency between suing a THIRD party vs. receiving WSIB benefits in Sutor the Workplace Safety and Insurance Board et al,  O.J. No. 311 (Ont. C.A.)
In this case, the plaintiff Ms. Sutor, a nurse, was injured in a motor vehicle accident in the course of her employment. She elected to claim benefits under the Workers’ Compensation Act (now Workplace Safety and Insurance Act “WSIA”) instead of pursuing a tort action against the driver of the other vehicle, Mr. Thurlow.
Approximately two years after Ms. Sutor first received WSIB benefits, she withdrew her claim for benefits in order to bring an action against Mr. Thurlow.
This case examined whether or not Ms. Sutor was allowed to withdraw her claim for benefits and pursue a tort action, and if so, what was the proper procedure of doing so.
Can a worker opt out of WSIB benefits to pursue a tort action?
The Court of Appeal found that if a worker first elects to collect benefits through WSIB and subsequently wishes to sue a third party, s/he may be allowed to re-elect and pursue a tort action in the Courts, as long as s/he provides an undertaking to reimburse the WSIB for the benefits paid to the date of the re-election.
As Van-Kemp J. noted in Cohen v. Smith (1995), 25 O.R. (3d) 264:
“There is no double recoveyr under the Worker’s Compensation Act (now Workplace Safety and Insurance Act). If the worker or his survivors/dependants elect to claim benefits under the Act, all his rights are subrogated. If he elects to sue in tort, he receives no benefits under the Act”.
Thus, if a worker elects to sue in tort, he is not entitled to receive benefits under the Act. Accordingly, if a worker, having first elected to receive compensation benefits, changes his/her mind before s/he can sue the tortfeasor, the worker should put himself or herself back in the position of having received no benefits from the WSIB.
Once a worker/dependant opts out of WSIB benefits, who can sue?
Once a worker or dependant has opted out of receiving WSIB benefits, there are no limitations as to who can bring an action.
What were the practical ramifications for Ms. Sutor withdrawing her claim for benefits and pursuing a tort action?
1. She had to complete and return a Withdrawal of Election form from the WSIB. After this form was processed, she no longer received any benefits.
2. She had to sign an “Assignment” which acknowledged her debt to the WSIB totaling $53,203.99. This represented $42,983.32 in benefits, $5,383.94 in medical costs and $4,836.73 in administrative expenses.
3. She had to sign an “Authorization & Direction” which directed her solicitors to pay the WSIB back for all benefits and costs incurred on her behalf totaling $53,203.99.
The WSIB’s Subrogated Right to an Action
Section 30(10) of the WSIA provides that where a worker/dependant elects to receive benefits, the WSIB has a subrogated right to bring an action in the name of the worker. The action is in the name of the worker but the WSIB controls and directs the litigation. The WSIB is dominus litis.
30(10) Subrogation, Schedule 1 Employer
If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 1 employer or the deceased worker was so employed, the Board is subrogated to the rights of the worker or survivor in respect of the action. The Board is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it on what terms.
If the WSIB commences an action and succeeds, the injured party would be entitled to any surplus recovered from the action over the WSIB’s legal costs and what the Plaintiff is entitled to recover in benefits.
If the Board or employer pursues the action and receives an amount of money greater than the amount expended in pursuing the action and providing the benefits under the insurance plan to the worker or survivor, the board or the employer (as the case may be) shall pay the surplus to the worker or survivor.
Liability where negligence, fault
29(1) In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
Same 29(2) the employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages.
It’s important to contact a lawyer to determine exactly what your rights are before you begin to receive any benefits from the WSIB or otherwise. Once you get started on one track, it might be difficult to get off to start on a completely different track.
It’s difficult for people to understand that WSIB benefits work as a shield to employers to protect them from getting sued. At the end of the day, this coverage is INSURANCE which is paid by employers so that they don’t have to deal with the constant threat of litigation from injured employees.
Does it work? Ideally, it should. But we all know this is a far from ideal world and I can assure that the the WSIB system is far from idea as well. We have seen may injured workers benefit from the system. But, we have seen far MORE injured workers who have been lost in the system, which is most unfortunate.
From everyone here at my law firm, we want to wish and you and your families a Merry Christmas and a Happy New Year. We remind you to drink responsibly, and NOT to drink and drive. Call a taxi. Use UBER! Have a designated driver, or stay over or at a hotel. It’s not worth putting your lives, and the lives of others to save a $50 taxi ride.