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Introduction

Many of us have heard of worker’s compensation or the Workplace Safety and Insurance Board (“WSIB”). You may have heard that it pays money to people who get injured at work. But not many people know the details.

It is important to understand how the system works, whether you are covered or not, and what that can mean for your right to sue someone for injuries you may have sustained as the result of negligence.

Is there worker’s compensation in Ontario?

Yes – for most workers. WSIB is the organization in charge of benefits for injured workers in Ontario.

Who qualifies for WSIB benefits? / Who qualifies for “worker’s compensation”?

Any worker whose employer participates in the WSIB system (buys benefits for its workers) is covered by WSIB. Workers are not required to register in advance; they only need to file a claim if they do get injured.

Most employers are required to participate. Also, any employer may choose to participate even if it is not required to do so.

Here is a list of some industries which must participate in the WSIB program:

  • Retail workers
  • Manufacturing workers
  • Construction workers
  • Hospital employees, including doctors, nurses, and staff
  • Restaurant workers, including fast food restaurants
  • Government employees

Some examples of employers that do not have to participate include:

  • Schools and universities
  • Veterinary offices
  • Funeral homes
  • Dental offices

You can check whether your type of employer is required to participate in the WSIB system by referring to the Employer Classification Manual. Please remember that even employers who do not have to participate might still choose to!

What does WSIB cover?

The most common WSIB benefit is the benefit for loss of earnings. If a workplace injury prevents you from earning income, WSIB may provide benefits to replace that pay.

However, your pay will not be fully replaced. WSIB only covers a percentage of the worker’s lost earnings – usually 85% of take-home pay, after all deductions are taken out.

Also, there is an annual maximum on these benefits. The maximum changes slightly from year to year, but for injuries which happen in 2016 the cap is $88,000. No matter how much you earned before your accident,  WSIB will not provide more than $88,000 per year in replacement income.

WSIB also provides other benefits, including compensation for the survivors of workers who are killed on the job and coverage for certain health care expenses. Each kind of benefit has its own rules.

What if my employer has not been paying for WSIB?

Workers are covered by WSIB even if their employer is behind on its payments or has not registered in the first place.

However, if a worker in this situation applies for WSIB benefits the WSIB might investigate the employer for non-compliance. Some workers might be reluctant to trigger an investigation like this – for example, workers who are employed by family businesses.

If your employer tells you that it has not been paying for WSIB benefits, consider contacting a lawyer with expertise in the field for a professional opinion.

Can I sue my employer for workplace injuries? / Can I sue my co-worker for workplace injuries?

If your employer is required to participate in the WSIB program, you likely cannot sue your employer for injuries you sustain while in the course of your employment. This is because you are already entitled to WSIB benefits; the law does not give you the right to claim benefits and also sue.

Even if your employer is not required to participate in WSIB, it can choose to buy in. If your employer buys optional WSIB insurance, you likely cannot sue for workplace injuries. However, you will be covered by the WSIB benefit program.

Co-workers are also protected. If you are injured on the job by your co-worker, you likely cannot sue your co-worker. This is also because you are already covered by the WSIB.

This also applies if you are injured by a worker whom works for a different employer, as long as both employers are covered by the WSIB. For example, if contractors from two different construction companies are involved in a workplace accident, they could not sue each other. However, they could each apply for WSIB benefits.

Who can I sue for my workplace injuries?

The WSIB rules do not protect people other than employers and workers. If you are injured at work by someone other than a co-worker (for example, by a customer or passerby), you could still sue that person.

What if I am injured while driving for work?

Some workers do not spend all their working hours on a fixed job site. You may be required to drive for work. For example, you may have to drive to an off-site meeting, or to go to a client’s house. Driving may also be a core part of your job – for example, your job may include making deliveries or driving a bus.

If you and the person who hit you are both eligible for WSIB (i.e. you both are workers whose employers participate in WSIB, and are driving for work), then you cannot sue each other, your employers, or each other’s employers.

However, if the accident involves a non-covered individual – for example, if a delivery driver collides with a driver who is not on the job – then the WSIB rules do not apply. The delivery driver could sue the non-working driver, or vice-versa. Here, you are also entitled to statutory no-fault accident benefits and can elect to receive these instead of WSIB. The no-fault accident benefits are usually preferential to WSIB.

The key is whether the people involved are “working”, not whether they are “at their workplace”. Or, to put it another way, if your job is driving then your “workplace” drives around with you.

Conclusion

The law surrounding WSIB is complex, and you should not make any final decisions based on the general information provided in this article. If you or a loved one is injured at work, you should consult a specialized lawyer to discuss your particular situation.

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