Workers’ compensation is a form of insurance that provides wage replacement and medical benefits for employees who are injured in the course of employment, in exchange for mandatory relinquishment of the employee’s right to sue their employer for the tort of negligence. Provision can be made for weekly payments in place of wages, compensation for economic loss (past and future), reimbursement or payment of medical and like expenses, and benefits payable to the dependents of workers killed during employment. General damages for pain and suffering, and punitive damages for employer negligence, are generally not available in worker compensation plans, and negligence is generally not an issue in the case.
Statutory Workers’ Compensation in Canada
Workers’ compensation was Canada’s first social program to be introduced as it was favoured by both workers’ groups and employers hoping to avoid lawsuits. The system arose after an inquiry by Ontario Chief Justice William Meredith who outlined a system that workers should be compensated for workplace injuries, but that they must give up their right to sue their employers. It was introduced in the various provinces at different dates. Ontario was first in 1915, Manitoba in 1916, British Columbia in 1917.
In Ontario the occupational health and safety are legislatively assigned to the Workplace Safety and Insurance Board. The program also has a preventative role ensuring workplace safety. The workers’ compensation insurance system is funded by employers based on their payroll, industry sector and history of injuries (or lack thereof) in their workplace (usually referred to as “experience rating”). 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 Workplace Safety and Insurance Act.
If the accident arises out of the worker’s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. However, a worker is not entitled to benefits if the accident occurs while the worker is employed outside of Ontario. Under the insurance plan a worker is entitled to benefits for:
- Mental stress that is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of their employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.
- Occupational diseases if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.
- Heart injury. If a worker is a firefighter or fire investigator, an injury to the heart in certain circumstances is presumed to be a personal injury arising out of and in the course of the worker’s employment, unless the contrary is shown.
Notice by Employer of Accident
An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full wages. The employer shall give a copy of the notice to the worker at the time the notice is given to the Board.
Claim for Benefits
A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than 6 months after the accident or, in the case of an occupational disease, after the worker learns that he or she suffers from the disease. The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so. If the claimant does not file the claim with the Board, no benefits shall be provided under the insurance plan unless the Board, in its opinion, decides that it is just to do so.
Return to Work
The employer of an injured worker and the injured worker shall co-operate in the early and safe return to work.
Obligation to re-employ
The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker.
Duty to accommodate
The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.
Duration of obligation
The employer is obligated under this section until the earliest of,
- the second anniversary of the date of injury;
- one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and
- the date on which the worker reaches 65 years of age.
- Payments for loss of earnings
- Payments for loss of retirement income
- Compensation for non-economic loss
- Degree of permanent impairment
- Death benefits
Payments for loss of earnings
A worker who has a loss of earnings as a result of the injury is entitled to payments beginning when the loss of earnings begins. The payments continue until the earliest of,
- the day on which the worker’s loss of earnings ceases;
- the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;
- two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;
- the day on which the worker is no longer impaired as a result of the injury
Compensation for non-economic loss
If a worker’s injury results in permanent impairment, the worker is entitled to compensation for his or her non-economic loss. The amount of the compensation is calculated by multiplying the percentage of the worker’s permanent impairment from the injury is $51,535.37 plus $1,145.63 for each year by which the worker’s age at the time of the injury was less than 45; or $51,535.37 less $1,145.63 for each year by which the worker’s age at the time of the injury was greater than 45. However, the maximum amount to be multiplied by the percentage of the worker’s impairment is $74,439.52 and the minimum amount is $28,631.22.
- Immediately after having an accident, your supervisor has the obligation to call an ambulance or provide the means of transportation to take you to the nearest hospital.
- Upon arrival, you have to inform the hospital staff that your injuries are due to an accident at work. The doctor that attends you has the obligation to send the injury report to WSIB (Workplace Safety & Insurance Board).
- In addition, your employer must send the details of the accident to the board (Form # 7) and give or send a copy to you.
- In a week period you will receive a letter from WSIB, indicating the number of your claim, and the Form # 6 that you should fill up, and send back to the Board as soon as possible. Do not forget to send a copy to your employer.
- An adjudicator (a person who makes decisions regarding entitlement) will be appointed to look after your case. He/she will clarify all your doubts related to your claim.
- The waiting period to receive your first payment is between one and two weeks.
- A constant communication between the Employer and the Employee is essential for the time of injury to comply with the board regulations.
To conclude, we hope that everybody follows safety and prevention rules to minimize accidents, in order to protect their health and avoid loss of earnings.
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