People get really confused about what to do when they sustain an injury in the workplace.
The first reaction for a person who gets injured while on the job is that they want to sue their employer, and everyone else under the sun for what happened to them.
This is a normal reaction and a normal train of thought. It would only seem logical and oh so simple that the injured worker sue his/her employer and anyone else responsible for their work related injuries.
Unfortunately, personal injury law in Ontario is far from logical and far from simple.
You see, because the injury took place in course or work, the employee must take a long hard look at whether or not s/he has to go through WSIB.
But what does going through WSIB have to do with suing for a personal injury case?
WSIB has everything to do with suing for a personal injury case; and here’s why.
You cannot both sue for your personal injuries, and claim WSIB benefits.
Well; if an injured worker cannot sue, and cannot claim WSIB benefits; then why can’t the injured worker just choose one path?
Because the law, in most cases; does NOT allow the injured party to chose. In the vast majority of cases; the injured worker MUST go through WSIB and cannot sue at all! Even if the employer was insanely negligent. I’m talking like sweat shop like labour conditions with zero protective gear and malfunctioning equipment which has been neglected for decades; the injured worker still CANNOT sue their employer if they are covered by WSIB.
If an injured worker tries to sue instead of having claimed WSIB benefits, their case will be kicked out of Court.
If an injured worker sues having not liked the amount of WSIB benefits they received; or having received not enough in WSIB benefits; their case will be kicked out of Court.
But Goldfinger: Why can’t an injured worker both claim WSIS benefits, and sue? Why must the injured worker forfeit their personal injury case and instead go through WSIB? That doesn’t seem fair at all!
That’s right. It’s not fair. These WSIB laws were never created to be fair. That’s the cold hard truth.
The WSIB regime is meant to protect employers from personal injury lawsuits. That’s it.
There is a lot of flowery wording contained in WSIB literature about compensating injured workers for their injuries, and getting them the care, treatment and compensation which they deserve. This is all nice and dandy. But ask anyone who has been through WSIB, and they will tell you that it’s a nightmare and that the treatment and compensation which they receive(d) is far from adequate. In many cases, treatment is denied by doctors who are paid by the WSIB to assess injured workers. The system is far from perfect and has widely been scrutinized by injured workers and advocates.
The reality is that by protecting employers from personal injury lawsuits, they helping employers to keep their costs down.
Think about it:
The employer will not need to pay a lawyer to defend a personal injury lawsuit. Instead, the employer pays a relatively low WSIB premium for what amounts to be blanket liability coverage for any workplace related accidents!
The employer does not need to pay high liability insurance premiums for any workplace related accidents. Instead, they pay a WSIB premium. The WSIB premium is likely the cheapest and easiest coverage out there. There is no shopping around and rates are set by the WSIB itself. It’s mindless and easy.
The employer does not need to worry about any awkward situations involving an employee who is suing them for a personal injury case, while still employing them. It makes for a very odd work environment when an employee sues his/her employer; and is still working there! It’s an human relations nightmare. There are no large HR consulting fees being paid for what to do and how to handle that situation.
It makes the employer’s life a heck of a lot easier dealing with a workplace injury claim. There are some WSIB papers which need to be completed. But beyond that, there is nothing more. There is no documentary discovery, no statements, no examinations for discovery, no mediation, no Pre-trial and no Trial. Just let WSIB handle it.
All of these things diminish what the claim is all about for the injured worker. Their accident is trivialized. It is given a case number, and churned in the system, much like any other case. The injured party doesn’t get any “justice” or satisfaction that they won. There is zero vindication that something has been done to remedy the work environment to make it a safe place. There is no day in Court. There is nothing special about it. It is but one of the thousands upon thousands of claims which are handled by the WSIB.
There are, in a minority of workplace accidents, situations where they injured employee can sue his her employer. All of the stars need to align for this to happen. Generally, when there is a car involved, there may be a chance to get the case outside of the WSIB regime so that the injured party can sue. But again, all of the stars need to align for this to happen.
There are also some industries which are exempt/which don’t need WSIB coverage.
The WSIB does not extend coverage, under any circumstances, to the following individuals:
- Foreign diplomats
- Competitors in individual or team sports
- Stunt performers
- Circus performers
Other than that, we have seen cases where bank employees, dental employees, funeral home employees, law firm employees are not covered by WSIB. But each case is unique and it depends on what the employer has arranged. The best way to find out whether or not an employee is covered by WSIB or not is to contact the WSIB at 1-800-387-0750 or visit their website
Most people have questions about whether or not they can sue; or whether or not they need to go through WSIB. They will also have questions about option out of WSIB, after they have elected to receive WSIB. They may have questions about what’s the right route for them to take. These are common questions which we would be pleased to assist with. Keep in mind that in the vast majority of work related injuries, the WSIB route is likely the only route which can be taken.