Video: A Practical Guide for WSIB Claims

Video transcription

Hi, I’m David Himelfarb, Managing Partner at Himelfarb-Prozanski. And, today I have been asked to put together a presentation for you all. And, it is in relation to a guide to provide you with knowledge, practical knowledge on WSIB Claims, Appeals and the Electing Out Process, that is at the WSIB.

There are a few objectives that we have today to increase your practical knowledge of WSIB Claims, the Appeals and the Electing Out obviously. To insure that WSIB patients receive care and compensation that they rightly deserve and to challenge each and every one of you in this room to think about someone that you know who can benefit from this presentation.

So, first and foremost, what is the WSIB? Which, is previously known as the Workers Compensation Board. Well, the Workers Compensation Board, the WSIB it oversees employment, safety, education, and training. Provides compensation, and benefits to eligible claimants that are injured on the job, and provides an exclusive adjudication system for all claims and an appeal process for both workers and employers.

The system itself has been set up since about the 1920s when we went into a no-fault system of compensation for any accidents that occurred in the workplace. And, in exchange for the right to sue, any worker who is involved in an accident regardless of fault is entitled to Workers Compensation benefits.

Who is eligible for WSIB benefits? First of all, you actually have to be covered by the Act in order to be eligible for WSIB benefits. So, you must suffer injury and it must be a work-related accident in order for you to be covered by the Act.

The legislation that applies is the Workplace, Safety and Insurance Act and Section 13.1 of the Act sets out that, a worker who sustains a personal injury by an accident arising out of or in the course of his or her employment is entitled to benefits under the Insurance Plan.

There are two types of Workers under the legislation. They have divided workers into two schedules; Schedule 1 and Schedule 2. Schedule 1, are basically all types of industries divided into 9 subclasses. These are all types of industries that we know of manufacturing, transportation, etc.

Schedule 2, these are injuries which are self-insured. So, that means that they actually pay out the claim themselves. And, they are generally Governmental in nature and we will get into the distinction between the 2 schedules shortly.

So, in terms of Schedule 1 we have got forest products, mining and related industries other primary industries; manufacturing, transportation and storage; retail and wholesale trades; construction, Government-related services, and other services.

Schedule 2 railways, telephone companies, telegraph companies, navigation companies, international bridges, provincial governments, airlines, municipalities, public library boards, police villages, and school boards.

So, if you are under either of those schedules, if you work as a worker under an industry covered under Schedule 1 or an industry covered under Schedule 2 and you are injured while working, you have a work-related accident injury then you are prima facie covered by the Act and you are entitled to the compensation under that Act.

What also happens is that you are not entitled to sue your employer or your co-worker for causing your injury as a result of your accident. The WSIB actually takes that away from you. And, we will get into in a little more detail how to elect out of the WSIB in certain situations.

So, we just covered the Schedules; Schedules 1 and 2, and, anyone identified in those schedules are covered as workers and, those who are not eligible. They are not covered under the definition of a worker, under the Act or they are not in an industry that is covered in Schedule 1 or 2. So, there are a vast amount of industries in Schedule 1 or 2. But, there are a number that are not covered in Schedule 1 and 2 and we will show you that in just a moment.

So, “worker” is actually defined under the legislation and it defines a person as being a worker who has entered into or is employed under contract of service or apprenticeship. And, basically it’s a legal test that must be applied to determine whether the injured party is covered by the Act.

For instance, independent contractors are not workers under the legislation. So, the legislation would not apply to someone who may be an independent owner/operator of a transport truck. In that situation the person who is driving the transport truck, the independent owner/operator would not be a worker under the WSIB legislation and therefore prima facie would not be entitled to coverage under the Act.

What does that mean on the other flipside of the coin, is that person is entitled to make a lawsuit? That person is entitled to sue the at-fault driver who caused the collision and entitled to compensation that the courts provide.

There is also some further delineation in terms of who is a worker there is further definition. Executive Officers of companies are not workers. Independent business operators are not workers. Sole Proprietors and their spouses are not workers, partners in a business, Volunteers, at-home workers and casual workers; all of these people would not be covered by the WSIB and they would be entitled to legal action if they were injured while they were actually doing work.

Now, to give you some frame of reference. We are referencing here a case that actually I was involved in, called Nagalingum and Rampino. This is a decision from the Workplace Safety Insurance Appeals Tribunal. And, our client was a taxi driver, who was struck by a Coach Bus. And, he was very, very seriously injured. Both the taxi driver was working at the time of the accident, as was the bus driver; both were in Schedule 1 industries. So, right off the bat we would think that well that is it, this poor taxi driver who is really badly injured would not have the right to sue the bus driver and its company for compensation.

But, when you look at whether or not the taxi driver is actually an employee, a worker, or an independent operator. If you can determine that the person is an independent operator then they are not covered by the Act, and therefore they have the right to sue. And, in this particular case the Tribunal held that our client was an independent contractor and not an employee. And therefore, he was permitted to continue his lawsuit against the bus driver and the company and was very successful. He got much more compensation in the court system than he would have ever seen in the WSIB areas.

There is another example here. This was a private ruling from the Board; again another case that we were involved in. 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 he was killed by a vehicle that was entering into the auction. And, in that case because he was there on behalf of his company, he was actually working at the time. He was going to be buying vehicles at the auction. And, he was certainly struck by someone who was working for the auction company at the time. Normally, that person would not have the right of action, but when we looked at the situation more clearly. We were able to find out that he was actually the officer of his own corporation and therefore as we showed you previously he would be excluded from coverage under the Act; which then allows him to be able to sue the auction company for compensation.

And, it was really, I mean Mr. “S” passed away unfortunately in the accident and it was his spouse and children that made the claim against the auction company. We recently settled that case for –it was almost $2 million for them. There is no way that they would have received anything close to that if it was kept within the WSIB system.

There are some omitted industries as well. And, the WSIB Act it just doesn’t cover these industries. So, if you are actually working and you suffer an injury while you are working and you work in these industries that are omitted under the Act. Then you are not going to get WSIB benefits anyway. You will prima facie have the right to sue.

And those industries: Banks, insurance companies, trust companies, credit card companies, financial institutions, law firms, like my law firm. Real Estate Agencies, business associations, recreational social clubs, live performance theaters, trade unions, private schools, recreational and vacation camps for kids, travel agencies and health clubs. So, anyone who works for any of these industries involved in an accident they are entitled to sue their employer for negligence because these industries are completely omitted from the act. Big gaping hole for all of those industries in the legislation.

There are other ways to get through the per view of the act or the coverage of the act on you. Because our goal as lawyers is if we can exclude you from the coverage of the WSIB Act, then we would like to be able to do that. Because compensation in our courts is much better than having to go through Board doled-out compensation.

The WSIB is a no-fault piece of legislation. And, it does not come, anything close to what our courts will provide accident victims within terms of appropriate and legal compensation. So, our goal is to try and get as many holes, as many areas in the act as possible to allow people access to the courts.

Another way of doing this is to determine that the person was not in the course of their employment at the time that the accident happened. Now, this is a legal test. And, it determines whether or not you are entitled to benefits, because the Act actually says that your injury must arise out of and in the course of your employment.

There are three factors to be considered: place, time and activity. Obviously if you are at work during work hours and you are doing work-related activity the likelihood is that you are in the course of your employment. Well, what happens if you go out for lunch? You are technically still at work. You may have gone off premises you may be on your own lunch hour. Well, now we get into gray areas where you may not actually be within the scope of your employment or course of your employment at the time that your injury occurred.

There is an example. For instance, we touched on this briefly. Are you on the employer’s premises? Is it during work hours? Are you doing a compulsory task away from the workforce? Are you on employer’s conveyance? Are you in an owned parking lot? All these sorts of things are looked at when the Tribunal determines whether or not you are actually in the course of your employment.

There is a case that called the Addae and Extended Care. This is a case that we were involved in where our client was a Nurse at Extended Care. And, she had essentially left a little early that day and she had gone into the parking lot gotten into her car and she was about to leave, and she was turning left from the Extended Care parking lot onto the highway, when she was broadsided by another vehicle. And, this woman was very, very seriously injured. She was an incomplete quadriplegic.

And, she would have been covered by the Board. The first impulse from everybody including the insurance companies was this lady was basically just leaving her place of employment and she should be covered by the WSIB. But, we were able to prove at the Tribunal level, that the accident actually occurred not on the employer’s property, but on the highway. And, even though we were taking the position that her vision was blocked by the employers own mailbox which they owned and maintained and was on their own property. We were taking the position that, that mailbox was placed in such an area that it would have blinded people of oncoming traffic as it did in this particular case.

The long and short of it was that we were able to prove that this lady was not in the course of her employment at the time that the accident occurred and therefore she was not covered by the Workplace Safety Insurance Act and she was entitled to sue. And, she got great compensation as a result of that.

Just to reiterate the recourse for those that are not covered and we have given you numerous examples of that up to now. Is that, while the Act provides that workers cannot sue their own employers there is all sort of different ways to get around that. All of the areas that we have showed you up to now are ways to get around the coverage of the Act. The Act only covers so many areas and there is holes all over the place. And, that’s what we have been able to get people compensated for.

There are concerns with the WSIB and not everybody is covered as we have advised. We all know that there is limited benefits, not enough to truly compensate people for the losses that they have suffered.

It is Government-regulated, and very difficult to navigate through. We have spent many, many hours dealing with people that are frustrated with the Board process. Even candidates who qualify are denied benefits routinely. And, like we told you before it’s a no-fault regime. And, the benefits just are not anything close to what a court would provide you.

There is an election process. If you are covered by both the Act and you do have an entitlement to sue, you can elect out of the Board coverage and pursue an action against the at-fault person.

So, which workers have the right to sue? The standard rule if you are covered by the Act is that you can’t sue your own employer or any other employee or employer. There are however, some very important distinctions between the Schedules.

So, remember we showed you those Schedules. Schedule 1 with the 9 industries, Schedule 2, with a number of other industries; 2 distinct schedules in the Act. Well, a Schedule 1 worker can sue a Schedule 2 worker or an employer. And, a Schedule 2 worker can sue either a Schedule 1 or a Schedule 2 worker or employer.

So, that means if there is an accident, a car accident for example and you have Schedule 1 and Schedule 2 workers in two separate vehicles there is a lawsuit there. Those parties can sue and have access to the courts. So, very important to determine what Schedule the person is identified as right off the bat.

And an example of that is perhaps a Purolator Courier driver who is involved in an accident with a Bell Canada Truck. And the Bell Canada Truck Driver is at fault. The Purolator Courier Driver is covered under Schedule 1; the Bell Canada is covered under Schedule 2. And the outcome would be that the Schedule 1 worker can sue the Schedule 2 worker and therefore the Purolator Courier Driver has the right to sue and has access to the courts and the appropriate compensation there.

There are some situations where the worker may have a concurrent entitlement. In other words being entitled to both the WSIB as well as having the right to sue. This refers to the worker’s option of either making a claim for WSIB or opting to sue for pain and suffering and all other losses that they would be entitled to receive in our court systems. This is referred to as an election, an election to sue.

For example, a worker employed as a truck driver gets involved in an accident caused by an at-fault driver who is not working at the time of the accident. So, you have one person involved. The truck driver he is working. The other car no one is working. No worker in that car. So, that person now has first all he is covered by the Act if he wants to. But, because the other person is not in the course of their employment at the time that the accident happens the truck driver has the right to sue. So, he has an election.

So, what we do recommend is that the truck driver or the person who is involved in the accident elect out of the WSIB, so as to have access to the court system and the better benefits there.

There is another example, this is an example; by the way that last example was another one of our cases.

This next example is also another example of one our cases. A worker installing cable service is in a new home, slips and falls on icy steps as he is leaving, and ends up sustaining traumatic brain injury.

In that case you have a man who is actually in the scope of his employment at the time. But, the home owner is not. They are not working. It’s not a place of employment. So, even though the cable technician is entitled to get benefits from the WSIB, he also has the right to sue and elect out.

In this case the worker did elect out. We were successful in helping him do that and we were also successful in settling his case shortly before trial. I may add that in terms of the compensation that he received it was about 4 or 5 times as high as he could get from the WSIB.

In terms of making that election it generally must be done within 3 months of the accident date. So, it is important for people to consult with lawyers who understand the WSIB system. Not a lot do. There are not many who have expertise in the area. And so, it could make all the difference in the world for people if they get properly compensated, but they need to get into the right law firm for an appropriate opinion.

So, it is important for people where they may be working or maybe the other person’s working involved in the accident to find a law firm for an opinion in relation to an election out of the WSIB or even whether the Act actually applies to them.

Elections are made through a form that’s filed with the Board called an election form, and signed off by them. We have given an example of that.

How do you know when an election is available and which election to make? Well, most people aren’t going to fully appreciate that. It’s important to get some good legal advice. And, we recommend that anyone who is seriously injured in an accident, while they may be working or the other person is working, get an opinion from a law firm that truly works in this area that understands WSIB and the application of it.

We are going to talk quickly about WSIB benefits. What do they actually offer you? Well, they gave you a loss of earnings, non-economic loss, which is sort of a pain and suffering award, but at a drastically reduced amount. There is loss of retirement income available in certain circumstances. Future economic loss and healthcare benefits, personal care allowances, etc.

In terms of personal care allowance, there is policy in relation to it. There is an allowance that is provided to hire an attendant to provide three categories of care, skilled, personal and general. And, we have set out what the policy actually says. What this means is that the Board actually follows a policy and they are rigid to it. So, if you don’t fit within the policy in terms of personal care allowances then you won’t get it. Or you need to hire someone who can help you fight for it.

There is also a home care policy. There is entitlement to home care when health professional indicates that health services are needed at the home. And there is a policy again that is provided by the Board. That we have set out here for you to take a look at.

There is also vehicle modification policy. What we have done is just taken a few of the policies in relation to some of the various items that we find are underutilized if you are stuck within the Board itself. Many of our clients are WSIB clients. And, what we do is, if we can’t get them out of the per view of the Act. If we get coverage of the WSIB Act then we will maximize the benefits that they are entitled too. So, we have set out the vehicle modification process.

There is an Appeal Process in the WSIB. And they will make decisions. They may say that you are capable of a return to work and therefore they are not going to pay you any more loss of earnings. So, what happens? There are 2 types of denials. There is a denial of benefit or termination of an ongoing benefit. And you can appeal by filing an objection form. And then you are entitled to an oral hearing or an appeal in writing. And thereafter if that is unsuccessful you can go to an independent Tribunal called the Workplace Safety Insurance Appeals Tribunal.

What’s the time limit for an Appeal? Six months. You don’t want to go any further than that. So, if you have been denied you should be seeking legal counsel for an opinion to determine whether your Appeal is viable.

And Ladies and Gentleman, that’s the presentation for today. Thank you very much for listening and being attentive. Thank you.