Practical guide for WSIB claims, appeals and electing out

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A Practical Guide for
WSIB Claims, Appeals
and Electing Out

• To increase your practical knowledge of WSIB claims, appeals, and electing out.
• To ensure your WSIB patients receive the care and compensation they deserve.
• To challenge each health care professional in this room to think about a patient under
their care who can beneﬁt from this presentation.
Objectives

What is the
WSIB and
Workers’
Compensation
Beneﬁts?

• The Workplace Safety and Insurance Board (WSIB) oversees workplace safety
education and training.
• Provides compensation and beneﬁts to eligible claimants injured “on the job.”
• Provides an exclusive adjudication system for all claims and an appeal process for both
workers and employers.
The WSIB

Who is Eligible
for WSIB
Beneﬁts?

• Must be suffering injuries as a result of a work-related accident or illness within a
covered industry.
• Workplace Safety and Insurance Act, 1997 S.O. 1997 c.16 s.13(1):  
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 insurance plan.
• 2 categories of industries to which WSIB coverage extends:
‣ Schedule 1:
- Categorized into 9 industry classes.
- Represents the majority of workers and/or employers.
‣ Schedule 2:
- Industries which are self-insured and pay the full amount of the claim plus an administrative fee
set by the WSIB.
Those Who Are Eligible

1. Forest products
2. Mining and related industries
3. Other primary industries
4. Manufacturing
5. Transportation and storage
6. Retail and wholesale trades
7. Construction
8. Government and related services
9. Other Services
Schedule 1: Nine Industry Classes

1. Railways
2. Telephone companies within the legislative authority of federal government
3. Telegraph companies
4. Navigation companies
5. International bridges
6. Provincial governments, including boards, commissions, and Crown agencies
7. Any airline with a regularly scheduled international passenger service
8. Municipalities, including municipal boards and commissions, except hospital boards
9. Public library boards
10. Police villages
11. School boards
Schedule 2: Self-Insured Industries

• Are either not covered under the deﬁnition of “worker” under the Workplace Safety and
Insurance Act.
OR
• Are within an industry which is omitted from coverage under Schedule 1 and 2.
Those Who Are Not Eligible

• “Worker” is defined as a person who has entered into or is employed under a contract of
service or apprenticeship.
• The definition is a legal test that must be applied to determine whether the injured party
is covered by the Act.
• Independent contractors are not “workers” under the legislation.
Definition of “Worker”

• Executive ofﬁcers of a corporation
• Independent business operators
• Sole proprietors and their spouses
• Partners in a business and their spouses
• Volunteers
• At home workers
• Casual workers
Those Not Covered Under The  
Deﬁnition of a “Worker”

Nagalingam and Rampino et al.
Decision No. 1034/12
• Our taxi driver client was struck by a coach bus and seriously injured.
• Both were in the course of employment at the time.
• Both were Schedule 1 industries.
• Outcome: client was an independent contractor and not an employee, therefore client
was permitted to continue his lawsuit against the bus driver and company.
Example

Private Ruling from the WSIB
• Mr. “S” was the owner/operator of a used automobile dealership.
• He attended the automobile auction to purchase vehicles; while there he was struck and
killed by a vehicle entering into the auction area.
• Outcome: The family of Mr. “S” was permitted to sue, as Mr. “S” was the executive
ofﬁcer of his corporation and would not have automatic coverage even though he was
working at the time of the accident.
Example

• Those industries omitted from coverage under Schedule 1 and Schedule 2 include:
‣ banks, insurance companies, trust companies, credit card companies and other ﬁnancial
institutions
‣ law ﬁrms
‣ real estate agencies
‣ business associations
‣ recreational and social clubs
‣ live-performance theaters
‣ trade unions
‣ private schools
‣ recreational and vacation camps for children
‣ travel agencies
‣ health clubs
Omitted Industries

• Test to qualify for WSIB beneﬁts:
‣ Injury must arise “out of and in the course of employment”
• 3 factors considered:
‣ Place
‣ Time
‣ Activity
Not in “The Course of Employment”

• Employer’s premises?
• During work hours?
• During compulsory task away from workplace?
• On employer’s conveyance?
• Ownership of premises such as parking lots?
• Jobs involving driving:
‣ Requirement to drive?
‣ Company vehicle?
‣ Compulsory route?
‣ Paid for driving?
Example

Addae and Extendicare
Decision No. 1459/08
• Our client left work early with permission.
• Attempted turn onto public road from employer’s private parking lot.
• Her vision was obstructed by a mailbox on the employer’s property. She was unable to see an
oncoming car as she pulled out onto Highway 7.
• She was struck by another car and sustained serious injuries including incomplete quadriplegia.
• She sued her own employer for placing the mailbox in a position that obstructed her vision while
exiting the parking lot.
• Tribunal found majority of factors (place, time and activity) indicated that she was not in the
course of her employment when the accident occurred.
• Outcome: she was permitted to continue her civil lawsuit and received signiﬁcantly greater
compensation.
Example

• While the Workplace Safety and Insurance Act generally provides that “workers” cannot
sue their own employers or any other employer or employee in the course of their
employment for personal injury, those not covered retain their right to sue for
compensation.
Recourse For Those Not Covered

• Not everyone is covered.
• Limited benefits may limit recovery and/or recovery time of claimant.
• Not enough to truly compensate claimants for the losses suffered.
• Government regulated and difficult to navigate through.
• Even candidates who qualify may be denied WSIB benefits.
• The Act is a no fault statutory regime, run by the government. The benefits available
under the Act are NOT comparable to what a Court would award for income loss, care
costs, and pain and suffering.
Concerns With The WSIB

Electing Out of
WSIB Beneﬁts

• Injured workers cannot sue their own employers or any other employee or employer for
personal injury damages.
• There are, however, very important distinctions between the Schedules set out as
follows:
‣ A Schedule 1 injured worker can sue a Schedule 2 employer or worker.
‣ A Schedule 2 injured worker can sue any other Schedule 1 or 2 employee and/or employer.
• There are numerous situations where injured people have the right to sue and never
know it.
• It is extremely important to determine whether an injured person, who was working at
the time of the injury, has the right to sue.
Which Workers Have The Right to Sue?

• A Purolator courier driver is involved in an automobile accident with a Bell Canada truck
driver who is at fault.
• The Purolator courier driver is covered under Schedule 1.
• The Bell Canada truck driver is covered under Schedule 2.
• Outcome: the schedule 1 worker can sue the schedule 2 worker; therefore, the Purolator
courier driver has the right to sue.
Example

• There are some situations where the worker may have a “concurrent” entitlement.
• This refers to the workers option of either making a claim for WSIB beneﬁts OR opting
to sue for pain and suffering and all other losses through the court system in a civil
lawsuit.
• This is referred to as an election.
Election to Sue

• A worker employed as a truck driver gets involved in a motor vehicle accident caused by
an at-fault driver who is not working at the time of the accident.
• Outcome: the truck driver can make an election to claim workers’ compensation
beneﬁts or sue the at-fault driver in a civil proceeding.
Example

• A worker installing cable services to a new home slips and falls on icy steps and
sustains traumatic brain injury. The worker is entitled to sue the at- fault property
owners but also retains his claims for WSIB beneﬁts.
• Outcome: the worker can make an election to claim worker’s compensation beneﬁts or
sue the at-fault owner in a civil proceeding.
Example

• Generally, an election must be made within 3 months from the date of the accident.
• Claimants must act quickly or immediately retain a personal injury lawyer to assist them
with the election and civil court process.
• Health care practitioners should ﬁnd out details regarding the other drivers in the motor
vehicle accident to determine whether the claimant has the right to sue.
Time Limit For an Election

• Through a WSIB Election Form which is
to be completed, signed and ﬁled within
the time limit.
• Sample Form.
How Are Elections Made?

• There are numerous circumstances where accident victims have the right to sue and
elect out of a WSIB claim.
• It is recommended that the family of those seriously injured in accidents arising out of
their work consult with an experienced personal injury lawyer in order to determine if
they have a right of action, and in order to advise which option the worker should elect.
How to Know When The Election is Available  
And Which Election to Make

WSIB Beneﬁts

• The WSIB offers the following benefits:
‣ Loss of Earnings
‣ Non-Economic Loss
‣ Loss of Retirement Income
‣ Future Economic Loss
‣ Health Care Benefits
‣ Personal Care Allowance
‣ Home Care
‣ Vehicle Modification
‣ Home Modification
WSIB Benefits

• An allowance to hire an attendant to provide three categories of care:
‣ Skilled Attendant Care (complex health care and hygiene)
‣ Personal Attendant Care (routine personal care)
‣ General Attendant Care (basic supervision)
• Eligibility: must be severely impaired and have difficulty with activities of daily living.
• Patient is “severely impaired” if their impairment is either:
‣ Permanent and rated for either permanent disability benefits totaling at least 100%, or non-
economic loss benefits totaling at least 60%,
OR
‣ Likely to be permanent in the opinion of a WSIB medical consultant, and meet one of the criteria
above.
Personal Care Allowance - Policy

• Entitlement to home care where a treating health professional indicates health services
are needed at home.
• Eligibility: must meet the following criteria:
‣ Worker is under clinical supervision of treating health professional.
‣ Worker’s work-related clinical condition can be treated at home.
‣ Worker’s needs cannot be met on an out-patient basis.
‣ Worker needs at least one professional service such as nursing physiotherapy, occupational
therapy, or speech therapy.
‣ Home is suitable from health care perspective.
‣ Worker’s family willing and able to participate.
‣ Worker resides in area designated as covered under program.
• When there is doubt pertaining to eligibility criteria,  
case may be referred to the WSIB’s medical consultant.
Home Care - Policy

• Examples of the types of modification include:
‣ Hand controls
‣ Elevating devices
‣ Dimmer switches
‣ Spinner knobs
‣ Van roof extension
‣ Special seats
• Purpose: to improve or enhance quality of life and facilitate mobility within community,
and socialization with family, friends, and organizations.
• Subject to clinical evidence supporting the need and confirmation of the following:
‣ Valid license/authority to drive vehicle
‣ Car insurance still in effect insurer having knowledge of condition
‣ Age/condition of vehicle such that modification warranted
‣ Certificate of Mechanical Fitness where doubt exists of condition of vehicle
Vehicle Modification - Policy

• Purpose: to facilitate independent living and providing access to areas within the home
utilized for ordinary living necessities.
• Eligibility:
‣ must have sustained a total and permanent disability/severe impairment due to work-related
incident;
OR
‣ Sustained a total and permanent disability/severe impairment due to a work-related condition
and by a non-work-related condition, where the work-related condition is primary factor and such
assistance not available through other agencies.
• Must be principal residence.
Vehicle Modiﬁcation - Policy

Appeals

• 2 types of denials:
‣ Denial of a benefit.
‣ Termination of an ongoing benefit.
• A denial or termination may be disputed through the filing of an “Objection” in writing
stating the reasons why the WSIB’s decision is incorrect.
• Claimants wishing to appeal WSIB decisions should be aware of time limits in which
they are permitted to do so.
What Happens if WSIB Denies a Claimant?

• In most cases, the time limit to appeal a denial or termination of benefits from WSIB is  
6 months.
• Claimants must therefore act quickly.
• Appeal process includes full reproduction of the WSIB file to the claimant.
• Appeal process consists of an appeal hearing within the Board which can be in writing
or in person and, if that is unsuccessful, an appeal to the Workplace Safety and
Insurance Appeals Tribunal (WSIAT), an independent board that has exclusive
jurisdiction as the final appeal in the system.
• Thereafter, there is no longer any right of appeal, but only judicial review of the tribunal’s
decision.
What is the Time Limit for an Appeal

Tel: 416.599.8080
www.Himpro.ca

Practical guide for WSIB claims, appeals and electing out

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