OTHER SERVICES: WORKERS COMPENSATIONS
An accident at work is defined as an external, sudden, unexpected, and unintended, during the execution of work or arising out of it that may result damage, injury, fatality, material or environmental damages.
Workers’ compensation is a form of insurance that provides wage replacement and medical benefits for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee’s right to sue their employer for the tort of negligence. Provision can be made for weekly payments in place of wages, compensation for economic loss (past and future), reimbursement or payment of medical and like expenses, and benefits payable to the dependents of workers killed during employment. General damages for pain and suffering, and punitive damages for employer negligence, are generally not available in worker compensation plans, and negligence is generally not an issue in the case.
Workers’ compensation was Canada’s first social program to be introduced as it was favoured by both workers’ groups and employers hoping to avoid lawsuits. The system arose after an inquiry by Ontario Chief Justice William Meredith who outlined a system that workers should be compensated for workplace injuries, but that they must give up their right to sue their employers. It was introduced in the various provinces at different dates. Ontario was first in 1915, Manitoba in 1916, British Columbia in 1917.
In Ontario, the occupational health and safety are legislatively assigned to the Workplace Safety and Insurance Board. The program also has a preventative role ensuring workplace safety. The workers’ compensation insurance system is funded by employers based on their payroll, industry sector and history of injuries (or lack thereof) in their workplace (usually referred to as “experience rating”). A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the Workplace Safety and Insurance Act.
The Most Common Workplace Injuries
The most commonly reported workplace injuries are: death, head injuries, brain injuries, carpal tunnel syndrome, back injuries, spinal cord injuries, lung cancer, and cancer caused by asbestos exposure (mesothelioma).
Many construction accidents involve electrocution. Welding activities are another common cause of accidents. Trenching is another of the highest risk activities. Recently crane injuries and fatalities have been noted.
In the case of motor vehicle accidents, there are special situations that are confusing. For example, if you are injured in a motor vehicle accident, if you are a driver in the course of your employment duties, you may have to seek recovery through the Workplace Safety and Insurance Board, rather than through the “normal” insurance. An early determination of these jurisdiction and forum issues is critical in order that you take the steps necessary within the many prescribed time limits because in every case the injured party is responsible for making application for the benefits and compensation they are entitled to.
Slips, trips and falls are some of the leading causes of workplace lost-time injury in Ontario. They can occur in any workplace, and nearly 20% of all lost-time injury claims in Ontario relate to slips, trips and falls.
Ministry of Labour inspectors focus on workplace hazards. They may take enforcement action if they find violations of the Occupational Health and Safety Act and its regulations.
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. However, a worker is not entitled to benefits if the accident occurs while the worker is employed outside of Ontario.
Under the insurance plan a worker is entitled to benefits for:
- Mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of their employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
- Occupational diseases if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.
- Heart injury. If a worker is a firefighter or fire investigator, an injury to the heart in certain circumstances is presumed to be a personal injury arising out of and in the course of the worker’s employment, unless the contrary is shown.
Notice by Employer of Accident
An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages. The employer shall give a copy of the notice to the worker at the time the notice is given to the Board.
Claim for Benefits
A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than 6 months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease. The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so. If the claimant does not file the claim with the Board, no benefits shall be provided under the insurance plan unless the Board, in its opinion, decides that it is just to do so.
Return to Work
The employer of an injured worker and the injured worker shall co-operate in the early and safe return to work.
Obligation to Re-Employ
The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker.
Duty to Accommodate
The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.
Duration of Obligation
The employer is obligated under this section until the earliest of,
- the second anniversary of the date of injury;
- one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and
- the date on which the worker reaches 65 years of age.
- Payments for loss of earnings
- Payments for loss of retirement income
- Compensation for non-economic loss
- Degree of permanent impairment
- Death benefits
Payments for Loss of Earnings
A worker who has a loss of earnings as a result of the injury is entitled to payments beginning when the loss of earnings begins. The payments continue until the earliest of,
- the day on which the worker’s loss of earnings ceases;
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;
- two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
- the day on which the worker is no longer impaired as a result of the injury
Compensation for Non-Economic Loss
If a worker’s injury results in permanent impairment, the worker is entitled to compensation for his or her non-economic loss.
The amount of the compensation is calculated by multiplying the percentage of the worker’s permanent impairment from the injury is $51,535.37 plus $1,145.63 for each year by which the worker’s age at the time of the injury was less than 45; or $51,535.37 less $1,145.63 for each year by which the worker’s age at the time of the injury was greater than 45. However, the maximum amount to be multiplied by the percentage of the worker’s impairment is $74,439.52 and the minimum amount is $28,631.22.
CP Paralegal Solutions can give you an advice about worker’s compensation matters. We are licensed by the Law Society of Upper Canada and can ensure you are in compliance with all appropriate rules.