Workers Compensation

What is “Workers’ Compensation” about?

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.

What are the laws that govern workplace health and safety issues in Ontario?

The Occupational Health and Safety Act (OHSA) is Ontario’s cornerstone legislation for workplace health and safety. Other legislation includes the Workplace Safety and Insurance Act (WSIA) and the Human Rights Code.

What is Workplace Safety and Insurance Board?

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 their employment is entitled to benefits under the Workplace Safety and Insurance Act.

What are 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). 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. 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.

I work as a driver for a big corporation and have got injured in a motor vehicle accident while working. Where I have to go to apply for the accident benefits?

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.

What are the “insured” injuries?

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, occupational diseases and heart injury.

I have got injured at work and was unable to work for a while. Now I’m recovered and ready to work again. Does my employer has legal obligation to re-employ me?

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. The employer is obligated 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
  • the date on which the worker reaches 65 years of age

What is the Occupational Health and Safety Act (OHSA) about?

The Occupational Health and Safety Act (OHSA) protects workers from health and safety hazards on the job. It sets out duties for all workplace parties and rights for workers. It establishes procedures for dealing with workplace hazards and provides for enforcement of the law where compliance has not been achieved voluntarily. OHSA applies to almost every worker, supervisor, employer and workplace in Ontario, including workplace owners, constructors and suppliers of equipment or materials to workplaces covered by the Act. OHSA does not apply to work done by the owner or occupant, or a servant, in a private residence or on the connected land (Section 3(1))

Who is not covered by OHSA?

Workplaces under federal jurisdiction are regulated by the Canada Labour Code, which is administered by Human Resources and Skills Development Canada (HRSDC). Federally incorporated businesses are those businesses that are working for the common good of at least two provinces and are outside the exclusive legislative authority of any one province. They are subject to provincial employment laws if they are not operating with these 15 major sectors:

  • air and water transport
  • federal crown corporations
  • energy and mining
  • banking
  • the federal public service
  • pipelines
  • bridges and tunnels
  • feed, flour and seed mills
  • postal contractors
  • broadcasting
  • grain elevators
  • rail transport
  • communications
  • longshoring
  • interprovincial road transport

How is OHSA enforced?

Enforcement begins with the issuing of orders and may proceed to prosecution. A prosecution may be initiated against anyone having duties mentioned in OHSA. Inspectors are the enforcement arm of the Ministry of Labour; their role includes the following:

  • inspection of workplaces
  • issuing of orders where there is a contravention of OHSA or its regulations
  • investigation of accidents and work refusals
  • resolution of disputes
  • recommendation of prosecution

What are the penalties for not complying with OHSA and its regulations?

The maximum penalties for a contravention of OHSA or its regulations are set out in OHSA Section 66. A successful prosecution could, for each conviction, result in:

  • A fine of up to $25,000 for an individual person and/or up to 12 months imprisonment
  • A fine of up to $500,000 for a corporation.

What rights does OHSA give to workers?

Workers’ rights under OHSA include:

  • The “right to participate” to be part of the process of identifying and resolving health and safety concerns. This right is expressed mainly in the requirements for Joint Health and Safety Committees and representatives.
  • The “right to know” about any hazards to which they may be exposed. The requirements of the Workplace Hazardous Materials Information System (WHMIS) are an important example.
  • The “right to refuse work” that they believe is dangerous and, under certain circumstances, certified Joint Health and Safety Committee members can stop work that is dangerous.

What duties do workers have under OHSA?

In Ontario, all workers have a general duty to take responsibility for personal health and safety. They have to work in compliance with OHSA and regulations; use any equipment, protective devices or clothing required by the employer; report any known workplace hazard or violation of the Act to the employer or supervisor.

What duties do employers have under OHSA?

There are general and specific duties to employers:

  • Take all reasonable precautions to protect the health and safety of workers
  • Ensure that equipment, materials and protective equipment are maintained in good condition
  • Provide information, instruction and supervision to protect worker health and safety
  • Co-operate with the JHSC
  • Comply with all regulations made under OHSA
  • Develop and implement a health and safety program and policy
  • Post a copy of OHSA in the workplace
  • Provide health and safety reports to the JHSC

Are there any legal temperature ranges for workplaces, either hot or cold?

In a health care facility or an industrial establishment, such as a factory, store, shop or office, the regulations set a minimum temperature of 18°C. Working outdoors or in freezers is a subject to exemptions. The construction projects regulation specifies a minimum of 27°C for underground change rooms, a maximum of 38°C for work chambers, and where work is done in compressed air, the provision of a medical lock with a minimum of 18°C and maximum of 27°C. There are no set minimum or maximum temperatures for other workplaces. Nevertheless, because either extreme heat or cold may be a hazard, temperature is a legitimate issue in determining workplace safety. A particular concern is heat stress.

I work in a warehouse and often I have to lift very heavy things. Are there any legal limits about how much weight a worker is required to lift?

The Occupational Health and Safety Act (OHSA) does not have any particular numbers describing a safe weight for lifting, although it is well known that lifting can be a hazard for workers. The maximum acceptable amount of weight a worker can handle depends on the worker’s build and fitness, the height lifted from and to, the distance from the body, the frequency of lifting, and other factors. There are general precautions that can reduce lifting hazards, and an ergonomic analysis can be performed to determine what is likely to be safe for a specific person performing a particular task.

I work in an office and one of my colleagues smokes at work. What can I do about it?

Local public health units will carry out inspections and investigate complaints in workplaces to enforce the Smoke-Free Ontario Act. The act prohibits smoking in enclosed workplaces in Ontario in order to protect workers from exposure to second hand smoke. The act repeals the Smoking in the Workplace Act, which was enforced by the Ministry of Labour.

What are the legal requirements for personal protective equipment?

Although there is no general requirement in the Ministry of Labour’s legislation for an employer to provide workers with personal protective equipment, an employer has a general duty, under OHSA Section 25(2)(h) to “take every precaution reasonable in the circumstances” to protect workers. In practical terms, this means personal protective equipment should be provided to workers wherever there are health (or safety) risks that cannot be adequately controlled in other ways. PPE can reduce or prevent a worker’s exposure to a health hazard in the workplace and can include respirators, hearing protectors, protective clothing, footwear and face and eye shields. Personal protective equipment is required in specific situations and dealt with in regulations made under OHSA. Section 7 of the Regulation respecting the Control of Exposure to Biological or Chemical Agents requires respirators to be provided when engineering controls are not practical. Under Section 139(2) of the Regulation respecting Industrial Establishments, a worker with an excessive exposure to noise must wear hearing protection.

Are there workplace requirements for first aid?

Workplaces that are covered by the Workplace Safety and Insurance Act, 1997 are required by regulation to have adequate first aid equipment, facilities, and trained people. Additional first aid requirements for particular work situations are specified in the Ministry’s of Labour Regulations for Construction Projects (Sections 261 to 263, 355, 361 and 362) and for Mines and Mining Plants (Section 281.1 and the Schedule).

What should a worker do if injured at work?

Obviously, first thing to do for an injured worker is to get proper medical attention. It is the responsibility of the employer. It may take the form of first aid from a trained co-worker or require transportation to and treatment at a hospital. The injury-causing incident must also be reported to the worker’s supervisor or employer, so that the employer’s responsibilities under the Workplace Safety and Insurance Act can be met. One of these responsibilities is completion of a Workplace Safety and Insurance Board form (WSIB Form 7), which must be submitted to the WSIB before workers, who are eligible, can receive workplace safety insurance (formerly known as workers’ compensation).

What is a Joint Health and Safety Committee?

A Joint Health and Safety Committees (JHSC) is a committee of at least two persons, who represent the workers and the employer at a workplace. Their primary role is to identify workplace health and safety problems and bring them to the attention of the employer. Any workplace that regularly employs 20 or more workers (Section 9 of OHSA) has to have a JHSC. Workplaces with more than five but less than 20 workers are not usually required to have a JHSC. Instead, workers must select a person from among themselves to be a health and safety representative.

What is the Workplace Hazardous Materials Information System (WHMIS)?

WHMIS is a Canada-wide system designed to give employers and workers information about hazardous materials used in the workplace. It has been implemented by a combination of federal and provincial legislation. The main purpose of the federal WHMIS legislation is to require suppliers of hazardous materials used in the workplace to provide health and safety information about their products as a condition of sale. WHMIS requires employers to obtain health and safety information about hazardous materials in their workplaces and to pass it on to their workers (Regulation 860). There are three ways in which the information is to be provided:

  • Labels on the containers of hazardous materials
  • Material safety data sheets to supplement the label with detailed hazard and precautionary information
  • Worker education programs

What is an occupational hazard?

An occupational hazard is a thing or situation with the potential to harm a worker. Occupational hazards can be divided into two categories: safety hazards that cause accidents that physically injure workers, and health hazards which result in the development of disease. It is important to note that a “hazard” only represents a potential to cause harm. Whether it actually does cause harm will depend on circumstances, such as the toxicity of the health hazard, exposure amount, and duration. Hazards can also be rated according to the severity of the harm they cause – a significant hazard being one with the potential to cause a critical injury or death.

What is the difference between “hazard” and “risk”?

The hazard posed by some material or situation is its potential to cause harm. Risk is the probability, or chance, that it actually will harm someone. For example, crossing the Atlantic Ocean by plane or rowboat exposes the traveller to the same hazard of drowning, but the risk of drowning is immeasurably higher in the rowboat. It is the risk of drowning (among other things!) not the hazard that discourages people from rowing across the Atlantic.

What are the benefits that a worker can be compensated for?

The compensation can be the following:

  • Payments for loss of earnings
  • Payments for loss of retirement income
  • Compensation for non-economic loss
  • Degree of permanent impairment
  • Death benefits

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

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.

Is there a time limit to file a 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.

I think that my working conditions are not safe. What can I do about it?

Health and safety concerns should first be brought to the attention of the employer or supervisor. If nothing is done, it can be taken to the worker’s health and safety representative or Joint Health and Safety Committee. If the situation is not corrected, it can be reported to the nearest office of the Ministry of Labour. Workers also have the right to refuse unsafe work. OHSA Section 43 outlines the procedure that must be followed, and this process should be understood before a refusal is initiated.