Our law firm gets a lot of calls from injured workers.
They have very serious injuries and wish to sue their employer. They allege that their employer was negligent; allowed for unsafe work conditions to exist which they knew, or ought to have known of; or permitted the worker to use unsafe equipment which needed to be replaced or better maintained.
All of these scenarios, in a non-workplace environment; are grounds for a winning lawsuit by an injured party.
Unfortunately for injured workers; the workplace is NOT a normal environment when it comes to litigating personal injury matters.
Most workers have heard of the Workplace Insurance & Insurance Board (WSIB).
When a worker is injured on the job, s/he has to file a claim through the WSIB to receive benefits. Even if the employer is not registered with the WSIB, the worker needs to file a claim. Some employers are exempt from the WSIB (banks and law firms), but most employers MUST pay premiums into the program.
For many injured workers, WSIB benefits aren’t enough. They want more. They want to be vindicated with a win in Court, or some form of monetary settlement for their injuries.
There is nothing wrong with having these feelings; particularly when the employer could have prevented the injury had they done a better job at protecting their workers and providing for a safe work environment.
Unfortunately the “suing route” via personal injury lawsuit is NOT in the cards for most injured workers.
What most injured workers don’t know; and what the general public doesn’t know, is that the WSIB acts as a shield to protect employers from lawsuits from their injured workers.
That statement may sound odd, because the WSIB pays out benefits to injured workers and sounds like it’s there to protect them.
But when you take a deep look at those benefits, and how those benefits flow, you quickly appreciate that benefits to injured workers pale in comparison to the amount which they might receive in the open Courts through a personal injury lawsuit. You also appreciate that the adjudicators and medical experts hired by the WSIB are skewed in favour of employers in order to limit the exposure of the WSIB, at the expense of the injured worker.
THE WORKER CANNOT SUE HIS/HER OWN EMPLOYER
Section 28 of the Workplace Safety and Insurance Act, 1997 S. O. 1997, c. 16 provides:
28 (1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
1. Any Schedule 1 employer.
2. A director, executive officer or worker employed by any Schedule 1 employer.
Same, Schedule 2 employer
(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
1. The worker’s Schedule 2 employer.
2. A director, executive officer or worker employed by the worker’s Schedule 2 employer.
(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.
But what happens to an injured worker if they get injured slipping and falling in the parking lot at work? Or perhaps on a lunch break, or coffee break? Or perhaps they get injured off the job site, but on a delivery (related to work)?
These are all good questions because on the surface, it would appear that the injured worker did not hurt themselves in the job site, or they were not actively working at the time of their injury (they were on a break).
The WSIB has seen these cases before.
What the WSIB looks at is the reason why the workers on the job site; or wherever s/he was at the time of the accident. The cold hard truth is that “but for” the worker’s employment; s/he would NOT have been where s/he was at the time of the accident (the job site, on a delivery, in the parking lot at work). But for the worker’s employment, s/he would not have been there in the first place. The result is that the protections afforded to the employer under section 28 of the Workplace Safety and Insurance Act will kick in. The worker’s civil lawsuit will be dismissed from the Courts and fail. They will be forced to stay within the WSIB regime. Note: there are other legal tests which the WSIB uses to determine whether or not the employee has to go through WSIB, but the “but for” test is the easiest legal one to grasp and explain.
It’s important to note that an injured worker cannot receive both WSIB benefits, and sue. They cannot have it both ways. The injured party must make an “Election” and decide whether or not they wish to receive WSIB benefits, or sue. They cannot do both.
For most injured workers, the election is a foregone conclusion given the protections afforded to the employer under s. 28 of the Workplace Safety and Insurance Act. The injured worker MUST go through WSIB. Suing is out of the question (even though they want to go this route).
There are exceptions where an injured worker can sue. These exceptions are rare and fall in to two categories.
- The Defendant is not afforded WSIB protection. In this group, you will find employers who are excluded from having WSIB coverage, and therefore, don’t opt for it. Examples of these employers include banks, law firms, and funeral homes to name a few. Calling the WSIB directly is the best way to determine if your employer is required to have coverage.
- Car accidents!
If a worker is on a delivery in his/her car, and in the course of his/her employment; and gets into a car accident with a third party vehicle (which is not covered by WSIB), then the injured party can “opt out” of WSIB and “elect” to pursue a civil action in Court. These car accident cases are the most common our law firm sees regarding the opting out of an employee from the WSIB system in order to pursue a civil action (suing). Opting out of WSIB can be a bit tricky, so it’s best to ask a personal injury lawyer what needs to be done, and how to do it properly.