Practical guide for WSIB claims, appeals and electing out

Call: 1-855-446-7765 • Email: [email protected] • Web: www.himpro.ca

A Practical Guide for WSIB Claims, Appeals and Electing Out


• To increase your practical knowledge of WSIB claims, appeals, and electing out. • To ensure your WSIB patients receive the care and compensation they deserve. • To challenge each health care professional in this room to think about a patient under

their care who can benefit from this presentation.

Objectives

http://www.himpro.ca/services/wsib-lawyer/


What is the WSIB and Workers’ Compensation Benefits?


• The Workplace Safety and Insurance Board (WSIB) oversees workplace safety education and training.

• Provides compensation and benefits to eligible claimants injured “on the job.” • Provides an exclusive adjudication system for all claims and an appeal process for both

workers and employers.

The WSIB


Who is Eligible for WSIB Benefits?


• Must be suffering injuries as a result of a work-related accident or illness within a covered industry.

• Workplace Safety and Insurance Act, 1997 S.O. 1997 c.16 s.13(1): A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

• 2 categories of industries to which WSIB coverage extends: ‣ Schedule 1:

- Categorized into 9 industry classes. - 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.

Those Who Are Eligible


1. Forest products 2. Mining and related industries 3. Other primary industries 4. Manufacturing 5. Transportation and storage 6. Retail and wholesale trades 7. Construction 8. Government and related services 9. Other Services

Schedule 1: Nine Industry Classes


1. Railways 2. Telephone companies within the legislative authority of federal government 3. Telegraph companies 4. Navigation companies 5. International bridges 6. Provincial governments, including boards, commissions, and Crown agencies 7. Any airline with a regularly scheduled international passenger service 8. Municipalities, including municipal boards and commissions, except hospital boards 9. Public library boards

10. Police villages 11. School boards

Schedule 2: Self-Insured Industries


• Are either not covered under the definition of “worker” under the Workplace Safety and Insurance Act.

OR • Are within an industry which is omitted from coverage under Schedule 1 and 2.

Those Who Are Not Eligible


• “Worker” is defined as a person who has entered into or is employed under a contract of service or apprenticeship.

• The definition is a legal test that must be applied to determine whether the injured party is covered by the Act.

• Independent contractors are not “workers” under the legislation.

Definition of “Worker”


• Executive officers of a corporation • Independent business operators • Sole proprietors and their spouses • Partners in a business and their spouses • Volunteers • At home workers • Casual workers

Those Not Covered Under The Definition of a “Worker”


Nagalingam and Rampino et al. Decision No. 1034/12 • Our taxi driver client was struck by a coach bus and seriously injured. • Both were in the course of employment at the time. • Both were Schedule 1 industries.

• Outcome: client was an independent contractor and not an employee, therefore client was permitted to continue his lawsuit against the bus driver and company.

Example


Private Ruling from the WSIB • 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

killed by a vehicle entering into the auction area.

• Outcome: The family of Mr. “S” was permitted to sue, as Mr. “S” was the executive officer of his corporation and would not have automatic coverage even though he was working at the time of the accident.

Example


• Those industries omitted from coverage under Schedule 1 and Schedule 2 include: ‣ banks, insurance companies, trust companies, credit card companies and other financial

institutions ‣ law firms ‣ real estate agencies ‣ business associations ‣ recreational and social clubs ‣ live-performance theaters ‣ trade unions ‣ private schools ‣ recreational and vacation camps for children ‣ travel agencies ‣ health clubs

Omitted Industries


• Test to qualify for WSIB benefits: ‣ Injury must arise “out of and in the course of employment”

• 3 factors considered: ‣ Place ‣ Time ‣ Activity

Not in “The Course of Employment”


• Employer’s premises? • During work hours? • During compulsory task away from workplace? • On employer’s conveyance? • Ownership of premises such as parking lots? • Jobs involving driving: ‣ Requirement to drive? ‣ Company vehicle? ‣ Compulsory route? ‣ Paid for driving?

Example


Addae and Extendicare Decision No. 1459/08 • Our client left work early with permission. • Attempted turn onto public road from employer’s private parking lot. • Her vision was obstructed by a mailbox on the employer’s property. She was unable to see an

oncoming car as she pulled out onto Highway 7. • She was struck by another car and sustained serious injuries including incomplete quadriplegia. • She sued her own employer for placing the mailbox in a position that obstructed her vision while

exiting the parking lot. • Tribunal found majority of factors (place, time and activity) indicated that she was not in the

course of her employment when the accident occurred.

• Outcome: she was permitted to continue her civil lawsuit and received significantly greater compensation.

Example


• While the Workplace Safety and Insurance Act generally provides that “workers” cannot sue their own employers or any other employer or employee in the course of their employment for personal injury, those not covered retain their right to sue for compensation.

Recourse For Those Not Covered


• Not everyone is covered. • Limited benefits may limit recovery and/or recovery time of claimant. • Not enough to truly compensate claimants for the losses suffered. • Government regulated and difficult to navigate through. • Even candidates who qualify may be denied WSIB benefits. • The Act is a no fault statutory regime, run by the government. The benefits available

under the Act are NOT comparable to what a Court would award for income loss, care costs, and pain and suffering.

Concerns With The WSIB


Electing Out of WSIB Benefits


• Injured workers cannot sue their own employers or any other employee or employer for personal injury damages.

• There are, however, very important distinctions between the Schedules set out as follows: ‣ A 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 numerous situations where injured people have the right to sue and never know it.

• It is extremely important to determine whether an injured person, who was working at the time of the injury, has the right to sue.

Which Workers Have The Right to Sue?


• A Purolator courier driver is involved in an automobile accident with a Bell Canada truck driver who is at fault.

• The Purolator courier driver is covered under Schedule 1. • The Bell Canada truck driver is covered under Schedule 2.

• Outcome: the schedule 1 worker can sue the schedule 2 worker; therefore, the Purolator courier driver has the right to sue.

Example


• There are some situations where the worker may have a “concurrent” entitlement. • This refers to the workers 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 is referred to as an election.

Election to Sue


• A worker employed as a truck driver gets involved in a motor vehicle accident caused by an at-fault driver who is not working at the time of the accident.

• Outcome: the truck driver can make an election to claim workers’ compensation benefits or sue the at-fault driver in a civil proceeding.

Example


• A worker installing cable services to a new home slips and falls on icy steps and sustains traumatic brain injury. The worker is entitled to sue the at- fault property owners but also retains his claims for WSIB benefits.

• Outcome: the worker can make an election to claim worker’s compensation benefits or sue the at-fault owner in a civil proceeding.

Example


• Generally, an election must be made within 3 months from the date of the accident. • Claimants must act quickly or immediately retain a personal injury lawyer to assist them

with the election and civil court process. • Health care practitioners should find out details regarding the other drivers in the motor

vehicle accident to determine whether the claimant has the right to sue.

Time Limit For an Election


• Through a WSIB Election Form which is to be completed, signed and filed within the time limit.

• Sample Form.

How Are Elections Made?


• There are numerous circumstances where accident victims have the right to sue and elect out of a WSIB claim.

• It is recommended that the family of those seriously injured in accidents arising out of their work consult with an experienced personal injury lawyer in order to determine if they have a right of action, and in order to advise which option the worker should elect.

How to Know When The Election is Available And Which Election to Make


WSIB Benefits


• The WSIB offers the following benefits: ‣ Loss of Earnings ‣ Non-Economic Loss ‣ Loss of Retirement Income ‣ Future Economic Loss ‣ Health Care Benefits ‣ Personal Care Allowance ‣ Home Care ‣ Vehicle Modification ‣ Home Modification

WSIB Benefits


• An allowance to hire an attendant to provide three categories of care: ‣ Skilled Attendant Care (complex health care and hygiene) ‣ Personal Attendant Care (routine personal care) ‣ General Attendant Care (basic supervision)

• Eligibility: must be severely impaired and have difficulty with activities of daily living. • Patient is “severely impaired” if their impairment is either: ‣ Permanent and rated for either permanent disability benefits totaling at least 100%, or non-

economic loss benefits totaling at least 60%, OR ‣ Likely to be permanent in the opinion of a WSIB medical consultant, and meet one of the criteria

above.

Personal Care Allowance - Policy


• Entitlement to home care where a treating health professional indicates health services are needed at home.

• Eligibility: must meet the following criteria: ‣ Worker is under clinical supervision of treating health professional. ‣ Worker’s work-related clinical condition can be treated at home. ‣ Worker’s needs cannot be met on an out-patient basis. ‣ Worker needs at least one professional service such as nursing physiotherapy, occupational

therapy, or speech therapy. ‣ Home is suitable from health care perspective. ‣ Worker’s family willing and able to participate. ‣ Worker resides in area designated as covered under program.

• When there is doubt pertaining to eligibility criteria, case may be referred to the WSIB’s medical consultant.

Home Care - Policy


• Examples of the types of modification include: ‣ Hand controls ‣ Elevating devices ‣ Dimmer switches ‣ Spinner knobs ‣ Van roof extension ‣ Special seats

• Purpose: to improve or enhance quality of life and facilitate mobility within community, and socialization with family, friends, and organizations.

• Subject to clinical evidence supporting the need and confirmation of the following: ‣ Valid license/authority to drive vehicle ‣ Car insurance still in effect insurer having knowledge of condition ‣ Age/condition of vehicle such that modification warranted ‣ Certificate of Mechanical Fitness where doubt exists of condition of vehicle

Vehicle Modification - Policy


• Purpose: to facilitate independent living and providing access to areas within the home utilized for ordinary living necessities.

• Eligibility: ‣ must have sustained a total and permanent disability/severe impairment due to work-related

incident; OR ‣ Sustained a total and permanent disability/severe impairment due to a work-related condition

and by a non-work-related condition, where the work-related condition is primary factor and such assistance not available through other agencies.

• Must be principal residence.

Vehicle Modification - Policy


Appeals


• 2 types of denials: ‣ Denial of a benefit. ‣ Termination of an ongoing benefit.

• A denial or termination may be disputed through the filing of an “Objection” in writing stating the reasons why the WSIB’s decision is incorrect.

• Claimants wishing to appeal WSIB decisions should be aware of time limits in which they are permitted to do so.

What Happens if WSIB Denies a Claimant?


• In most cases, the time limit to appeal a denial or termination of benefits from WSIB is 6 months.

• Claimants must therefore act quickly. • Appeal process includes full reproduction of the WSIB file to the claimant. • Appeal process consists of an appeal hearing within the Board which can be in writing

or in person and, if that is unsuccessful, an appeal to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), an independent board that has exclusive jurisdiction as the final appeal in the system.

• Thereafter, there is no longer any right of appeal, but only judicial review of the tribunal’s decision.

What is the Time Limit for an Appeal


Tel: 416.599.8080 www.Himpro.ca

http://www.himpro.ca/services/wsib-lawyer/

Practical guide for WSIB claims, appeals and electing out

Law

Transcript of Practical guide for WSIB claims, appeals and electing out