Ontario's Workplace Safety and Insurance Act, 1997, S.O. 1997, e.16, Schedule A, in its regulations and guidelines, set out the entitlements of a worker who becomes injured, ill, or dies in the course of employment. Pursuant to the Act, an injured worker is not entitled to bring an action against his or her employer, but instead is obliged to bring a claim under the Act in order to obtain compensation for a work-related injury. Further, an injured worker need not prove employer negligence and, unlike the regime of civil litigation, a worker will not be denied compensation due to an employer’s inability to pay. The following is only a brief overview of some Workers' Compensation issues and is definitely not exhaustive.
(i) Who is eligible for W.S.I.B. benefits?
Compensation under the Act is available to all workers, rather than the narrower concept of employee. For example, section 2(1) of the Act, which sets out that a worker includes a person who has entered into or is employed under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise demonstrates a much broader scope of inclusion than mere employees. It is also possible to be deemed a worker pursuant to section 12 of the Act.
In addition, a worker must have suffered the injury, illness, or death arising out of or in the course of employment. In assessing whether an injury arose out of or in the course of employment, the place, time, and nature of the worker's activities will be considered.
According to the Workplace Safety and Insurance Board, Document No. 15-02-02, if a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment. In most cases, therefore, where an injury has occurred during working hours, at the premises of the employer, the determination that an injury has occurred out of or in the course of employment will not be difficult.
It should be noted that even if a worker otherwise qualifies for benefits under the Act, benefits can be denied under section 23(2) for non-compliance, and under section 17 due to serious and willful misconduct.
(ii) Amount of Benefits
(a) Wage Loss
Where a worker is unable to resume his or her employment duties owing to a temporary total disability, the worker is entitled to 90% of his or her net average earnings, as calculated immediately prior to the injury. However, according to section 40(2) and section 43(7) of the Act, benefits can be terminated where the worker fails to cooperate in or is not available for a medical or vocational rehabilitation program. . . or fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable.
(b) Other Benefits
A claimant may also be eligible for other compensation including medical expenses, Non-Economic Loss (N.E.L), and Future Economic Loss (F.E.L.). While a N.E.L. award seeks to compensate a claimant for the impairment itself, without regard to future loss of earnings, a F.E.L. award replaces, in part, lost future earnings due to a long-term workplace injury.