Workplace Safety and Insurance Act Lecture Notes

Overview and History of Workplace Safety and Insurance in Ontario

In Ontario, the workplace safety and insurance system operates as a “no-fault” framework. This implies that injured employees receive benefits irrespective of the cause behind their workplace injury or disease, subject to reasonable limitations. A fundamental principle behind this system is the collective employer liability, which guarantees payment certainties for injured workers while relieving employers from the risks of litigation and potential bankruptcy. Most employers in Ontario are mandated to obtain no-fault insurance, significantly restricting a worker's ability to initiate civil action related to a workplace injury. The regulations governing this system are encapsulated in the Workplace Safety and Insurance Act (WSIA), administered by the Workplace Safety and Insurance Board (WSIB).

Authority and Jurisdiction of the WSIB

The WSIB holds the power to determine eligibility for benefits, necessitating that

1. An injured worker fulfills requirements listed in the WSIA,

2. A claim is filed with the WSIB.
   The authority of the WSIB is granted by the WSIA, and it exclusively regulates all matters related to worker injury claims unless explicitly stated otherwise in the WSIA.

Coverage Under the WSIA

Most employees are covered by WSIA benefits starting from their hire date, especially within Ontario's construction industry, where this coverage is mandatory. Certain business categories, including independent operators, sole proprietors, partners, and executive officers, are automatically excluded from coverage but may opt for optional workers’ compensation insurance.

The WSIA categorizes employers into:

1. Schedule 1: Employers from industries like mining, manufacturing, transportation, storage, retail, and construction contribute to a collective insurance fund.

2. Schedule 2: Includes provincial governments and specific federally-licensed entities, where these employers bear the costs of benefits directly.

3. Employers outside Schedules 1 and 2, like those in the banking or insurance sectors, may procure operational coverage and will be subjected to WSIA obligations if they do.

WSIB Administration and Benefits Claim Process

The WSIB is charged with the administration of claims and adjudicating benefits. When making a claim for benefits, certain criteria must be satisfied:

1. The injury must arise during employment.

2. Claims must be filed within six months post-accident, although extensions may apply in exceptional cases.

Three primary events trigger the WSIB's registration process:

1. Employer’s Report of Accident,

2. Worker’s Report of Accident,

3. Health Care Professional’s First Report.
   The WSIB then evaluates claims through eligibility adjudicators assessing factors like whether injuries occurred in the scope of employment and were employment-related.

Basic Determinations of the Board

The WSIB makes five primary determinations during claim evaluations:

1. Causation: Confirming if injuries arose from a workplace accident during employment.

2. Degree of Impairment: Evaluating if permanent impairment stemmed from the workplace injury.

3. Entitlement to Benefits: Assessing if loss of earnings occurred and calculating benefit amounts based on average earnings.

4. Return to Work: Evaluating cooperation in return-to-work initiatives.

5. Survivor Benefits: Determining eligibility for benefits among claimants such as spouses or dependents of the injured worker.

Appeal Process for WSIB Decisions

Both workers and employers have grounds to contest WSIB benefit decisions. For return-to-work cases, objections must be raised within 30 days, while all other decisions must be objected to within six months. Claim files are shared between the parties during this process to ensure fair participation. Appeals can be escalated to two levels:

1. First level: Appeal Services Division (with an Appeals Resolution Officer),

2. Second level: WSIAT (Workplace Safety and Insurance Appeals Tribunal).

WSIAT Characteristics and Authority

WSIAT conducts hearings with panels rather than singular adjudicators, enabling diverse medical insights through a roster of independent practitioners. New an advisory bodies have been created for workers and employers to assist in the process. WSIAT decisions are afforded significant deference and exclusive jurisdiction in appealing WSIB's decisions. It may also determine if a worker’s right to sue under civil law has been inhibited by the WSIA.

The Right to Sue

The WSIA strictly prohibits workers injured during employment from suing their employers or coworkers involved in the incident, with additional complications for those employed by Schedule 1 firms. Nonetheless, a worker may litigate against third parties responsible for their injuries. They have to opt for either WSIA benefits or pursue civil action against a third party, with the employer retaining the right to seek reimbursement if WSIA benefits were chosen.

Benefits Under the WSIA

WSIA outlines various benefits that workers can access:

1. Loss of Earnings Benefits: Workers can receive 85% of the income difference before and after an injury, limited to age 65, contingent on cooperation with healthcare measures.

2. Health Care Benefits: Coverage includes medical expenses, prescriptions, and modifications aiding independent living.

3. Non-Economic Loss (NEL): Workers with permanent impairments receive compensation based on a degree assessment conducted through health records or specific medical assessments.

4. Survivor Benefits: If a worker dies due to workplace-related causes, eligible dependents may claim survivor benefits.

Worker Re-Integration Obligations

Under Section 40, both employers and employees are obligated to facilitate a worker’s return to the workplace. According to Section 41, employers of a certain size have re-employment obligations, provided specific conditions were met. WSIA also outlines programs to assist workers in retraining and transitioning after injuries.

WSIAT Appeal and Mediation Process

WSIAT appeal processes initiate with a notice of appeal filed within six months of a WSIB decision. Each subsequent step requires adherence to specific documentation and timelines, including mediation, which is confidential and sanctioned when appropriate. Mediation settlements must be approved by a vice-chair of WSIAT and consistent with WSIA provisions.

Hearing Procedures and Reconsideration of WSIAT Decisions

Hearings at WSIAT are de novo, allowing new evidence presentation distinct from the WSIB proceedings. A final decision must ideally be communicated within 120 days, with requests for reconsideration accountable to significant new evidence or errors in law. Judicial reviews from WSIAT decisions are limited due to the privative clause of section 123 of the WSIA, and deference is typically granted to WSIAT's findings unless egregiously irrational.