A lawsuit is rarely an option for someone injured at work, says Oakville personal injury lawyer Weston Pollard, who often leads employees through the complicated legal world of workplace accidents.
“In most cases, depending on what you were doing and which industry you’re in, there are not really any options,” says Pollard, a partner with Edwards Pollard LLP, explaining that Ontario’s Workplace Safety Insurance Board (WSIB) — an independent provincial agency — is designed to handle the vast majority of workers’ compensation claims.
The board’s benefit payments, which cover income replacement, health-care costs and other
losses are funded by employers’ size and risk-adjusted premiums, he says.
Full loss-of-earning benefits cover 85 percent of a worker’s net average earnings, and the
WSIB also provides support for those who need help returning to work, Pollard tells AdvocateDaily.com.
“If your employer is paying into the WSIB — and most companies in Ontario are required to — then you may be barred from bringing a lawsuit and will have to follow their procedure for obtaining benefits,” he says.
To qualify for benefits, Pollard says claimants must first demonstrate that their injury occurred in the course of their employment. That definition is broader than some might imagine, he adds.
“There are many unexpected scenarios where the WSIB has found someone was acting in the course of their employment,” Pollard says. “For example, if you’re injured on the way to the coffee shop to buy drinks for everyone in the office, that could technically be in the course of your employment.”
However, he says some employees whose injuries were caused by third parties may have
additional legal options, due to the WSIB’s classification system for employers.
“It’s important to know if your employer pays WSIB premiums, and if you’re working for a Schedule 1 or Schedule 2 employer,” Pollard says.
Under Schedule 1 of the Workplace Safety and Insurance Act, employers in certain industries are covered by a system of collective liability as long as they pay their required premiums, which relieves them of individual responsibility for actual claims costs.
By contrast, Schedule 2 employers, which include publicly funded organizations, as well as those in federally regulated industries, self-insure for workplace compensation claims, even though the WSIB administers applications and payments.
When a Schedule 1 employee is injured by another Schedule 1 worker — each in the course of their employment — the WSIB remains the only option, even if they work for different employers, Pollard says.
However, a Schedule 1 employee injured by a Schedule 2 employee retains the right to sue the person responsible in court, he adds.
Pollard says injury victims are often motivated to opt out of the WSIB process because of the potential for higher damages awards in court and the availability of some types of damages that are not compensable from WSIB.
Still, Pollard says parties should not ignore the advantages of proceeding via the WSIB.
“The WSIB is better at paying claims quicker,” he explains. “Benefits can start flowing within about 12 weeks when you apply to the WSIB, which is much faster than any lawsuit I have ever seen. A personal injury lawsuit can easily take a couple of years to run its course.”
Either way, he says a lawyer can assist claimants with their decision by talking them through the various options, and working out which makes most sense according to the individual circumstances of their case.
“Lawyers will be able to quickly tell you what the landscape looks like,” Pollard says. “They’re able to assess, with some certainty, whether you can bring a claim in court, and help you decide which route is most appropriate if you have a choice.”