Tips for Understanding Work Injury Claims

A workplace injury is defined as any injury that occurs in the workplace or on company business, which requires medical treatment and which may or may not result in time missed from work. The WSIB is a government agency that administers Ontario’s no-fault workplace insurance for employers and their workers.

As a general rule, an injured worker cannot sue their own employer or any other employee or employer for personal injury damages. However, there are numerous situations where people have the right to sue, and may not know it. After suffering a workplace injury, it is critical that you consult an experienced work injury lawyer who specializes in this complex area of the law. If it turns out that you do have the right to sue, the level of recovery in a civil action is often far greater than the coverage available under WSIB.

In order to understand what your options are, you first need to know who is eligible for WSIB coverage. To be eligible for WSIB, you must have suffered injuries as a result of a work-related accident or illness, and you must fall within a covered industry. There are two categories of industries to which WSIB coverage extends:

• Schedule 1:

  • Categorized into 9 industry classes
  • Includes: forest products; mining and related industries; other primary industries; manufacturing; transportation and storage; retail and wholesale trades; construction; government and related services; and other services
  • 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
  • Includes: railways; telephone companies within the legislative authority of federal government; telegraph companies; navigation companies; international bridges; provincial governments, including boards, commissions, and Crown agencies; any airline with a regularly scheduled international passenger service; municipalities, including municipal boards and commissions, except hospital boards; public library boards; police villages; and school boards

In addition to knowing who is eligible for WSIB, it is also important that you know if you have the right to sue. The answer is that any 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 also some situations where the worker may have what is called a “concurrent” entitlement. This means that the worker has the 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 option is referred to as an election.

An example of this is as follows: a worker who is employed as a truck driver gets involved in a motor vehicle accident, which is caused by an at-fault driver who is not working at the time of the accident. That truck driver can make an election to claim workers’ compensation benefits or sue the at-fault driver in a civil proceeding.

Another example is that of a worker who is installing cable services to a home, and slips and falls on icy steps. The worker is entitled to sue the at-fault property owners, but also retains his claims for WSIB benefits.

If you have been involved in a workplace accident, and you are not sure whether you might have the right to sue, you must act quickly. Generally, an election must be made within 3 months from the date of the accident. In order to make that election, you must complete, sign, and file a WSIB Election Form within that time limit. That is why it is so important to discuss this matter right away with an experienced work injury lawyer, who can help you determine whether you have the right to sue, and maximize your recovery if you have been involved in a work-related accident.