Workers’ compensation is a Provincial program (in place since 1915) authorized by the Ontario Workplace Safety and Insurance Act, 1997 (the Act). It is a no-fault insurance plan that provides financial compensation for workers hurt at or disabled from work and also limits employer liability for workplace accidents or diseases. For the most part injured workers cannot sue for work-related injuries or diseases, and can only claim workers’ compensation benefits. The program is administered by the Workplace Safety and Insurance Board (WSIB), with headquarters in Toronto, and regional offices throughout Ontario. The program is financed through levies on employers, not workers.
Not all accidents, disablements or diseases in a work setting are compensable. In fact:
- The type of employment must be one that is covered by the Act.
- The person injured must be an eligible worker
- It must be established that the injury/disablement/disease is work-related.
Banking and insurance are two types of employment that are not covered by the Act. A worker in one of these industries who suffers an accident at work is not entitled to WSIB benefits. He or she may be eligible for other benefits and may be able to sue his or her own employer for negligence.
Compensation is available to survivors and dependants of injured workers whose death is related to a work injury or a work-related disability/disease.
There are strict time limits (6 months) for the filing of claims by injured workers or their survivors and consenting to the disclosure of information. If a time limit is missed a worker can apply to have it extended.
Worker’s compensation law has changed greatly over the last 20 years. For the most part these changes have affected how workers are compensated for permanent impairment, but there are also differences in the way payments for short-term disabilities are calculated, how survivors are compensated and in other entitlements available to injured workers or their survivors. The changes generally only apply to claims occurring after certain dates, with earlier claims still being governed by whatever system was in place when the claim arose. Another change that applies regardless of date of injury is that since January 1, 1998 a person receiving compensation benefits or who may be entitled to do so, must notify the WSIB of a material change in circumstances in connection with the entitlement within 10 days after the change occurs. Failure to do so could lead to the loss of entitlement or criminal prosecution, or both.
Two implications arising from these changes are:
- Workers with similar injuries may be receiving very different workers’ compensation payments depending upon the date of injury
- It is more difficult than it was 20 years ago for a worker to navigate the workers’ compensation system to receive fair compensation—the help of a skilled and experienced representative is more important now than ever before.
There are currently four compensation schemes in place. The basic components of compensation under each scheme are:
For claims Prior to April 1, 1985:
- Compensation payable is based on 75% of pre-accident gross earnings.
- Temporary benefits are payable as long as a worker has not attained maximum medical recovery and may be restored if the compensable condition worsens below the level of maximum medical recovery, continuing until the condition stabilizes.
- Permanently impaired workers receive a lifetime pension based upon the WSIB’s determination of a worker’s permanent impairment of earning capacity; a WSIB doctor assesses the pension with reference to a rating schedule known outside the WSIB as the “Meat Chart”.
- Permanently impaired workers whom the Board feels will not “approximate” their pre-accident earnings may be eligible for a pension supplement. The supplement currently available has been in existence since July 26, 1989—prior to that date a different form of supplement, with different eligibility criteria had been payable since 1975. The supplement is worth the equivalent of current Old Age Supplement payments and is not paid beyond age 65. Workers eligible for the supplement may also be eligible for a top up payment worth about $200 per month, payable for life.
For claims From April 1, 1985 to January 2, 1990:
- Compensation payable is based on 90% of pre-accident net average earnings.
- Other aspects of entitlement are similar to the pre-April 1, 1985 scheme.
For claims From January 2, 1990 to January 1, 1998:
- Compensation payable is based on 90% of pre-accident net average earnings.
- There are limits on how long temporary benefits can continue and on whether or not they will become payable if there is a deterioration below maximum medical recovery after permanent impairment compensation is in place.
- Permanently impaired workers may be entitled to both a Non-Economic Loss (NEL) Award and a Future Economic Loss (FEL) Award.
- The NEL award is intended to compensate injured workers for the “non-economic” impact of their impairment. It is a percentage rating of permanent impairment using the American Medical Association Guides to the Evaluation of Permanent Impairment (third edition). The amount of the compensation payable is calculated by multiplying the percentage rating by a set lump sum that varies with the worker’s age at the time of the injury. The payout on a NEL award is generally quite small and in the form of a lump sum.
- The FEL award compensates for projected wage loss due to the impairment (as determined by the WSIB) through age 65. After that a small FEL retirement benefit is payable. The FEL award is payable monthly and is subject to review for up to five years following its initial determination. There may be entitlement to a NEL award even if no FEL award is payable, but the reverse is not true.
For claims From January 1, 1998 to the present:
- Compensation payable is based on 85% of pre-accident net average earnings.
- Loss of Earnings (LOE) benefits are payable for both initial and permanent loss of earnings situations. Permanently impaired workers may also be entitled to a Non-Economic Loss (NEL) Award similar to the one described above. There may be entitlement for a NEL award even if no LOE benefits are payable, but the reverse is not true.
- Full LOE benefits are payable if the injury prevents work or if the impaired worker is participating in appropriate (as determined by the WSIB) Return to Work activities or Work Transition activities.
- If there is a permanent impairment LOE benefits will be based on the difference between pre-accident net average earnings and actual or deemed post-accident earnings.
- LOE benefits may be reviewed and adjusted by the WSIB every year or if a material change in circumstances occurs. There must be a final review not more than six years after the date of injury. Even after a final review there could be a further LOE review triggered by a deterioration in the compensable condition. LOE benefits end at age 65. After that a small retirement benefit is payable.
All claimants, regardless of date of injury may be eligible for Work Transition Services. This term is not in the Act, but the term Labour Market Re-entry is and the concept is the same. Before 1990 the concept was called “Vocational Rehabilitation”. The Board’s goal with Work Transition Services is to return the injured worker to work at the accident employer. If this is not possible, the WSIB may assist the worker to return to work with another employer. This assistance may include limited upgrading and retraining and historically has been of little value to many workers. In keeping with the applicable benefits scheme a worker will generally receive full payments while participating in Work Transition activities.
All claimants, regardless of date of claim may be entitled to various forms of Health Care Benefits. The most significant of these are:
- Independent Living Allowance: available since January 1, 1998; an annual payment of over $3,000 to workers with 100% pensions or 60% NEL awards;
- Independent Living Devices: funded on an item-by-item basis for devices valued at $250 or more; available since January 1, 1998 to workers with 100% pensions or 60% NEL awards;
- Clothing Allowance: an annual payment to permanently impaired workers for clothing damage caused by certain devices such as back, leg or arm braces;
- Attendant’s Allowance: monthly payments on a sliding scale depending upon need (as determined by the WSIB) for attendant care for workers with 100% pensions or 60% NEL awards;
- Hearing aids for workers with work-related hearing loss.
- Limited coverage for physiotherapy, chiropractic treatment, acupuncture, etc.
Since 1990 some employers have had obligations to re-employ injured workers, but workers do not have a right to be re-employed. There are very specific legislative provisions and policies that apply. Workers also have rights under the Ontario Human Rights Code that apply to a workers’ compensation claim.