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Why WSIB claims and personal injury claims don’t mix

The Workplace Safety Insurance Board (WSIB) provides no fault insurance coverage for injured workers in workplace accidents.

When workers have been injured in the course of their employment; often they look to our law firm to sue their employer.

But here’s the catch. And oh boy; is it ever a big catch.

You see, the thing is, in the vast majority of cases, you cannot sue your employer for your workplace injuries. There are certain exceptions like working for a bank, a law firm, or a funeral home. But in the vast majority of cases, you cannot sue your employer for their negligence giving rise to a workplace injury.

Employers are given one of two classifications. They are either classified as Schedule 1, or Schedule 2 employers. The marjority of employers fall under Schedule 1.

A Schedule 1 cannot sue his or her own Schedule 1 employer. They will be forced to make a WSIB claim. In the event that they find a personal injury lawyer to take on their case and sue their employer for their workplace injuries, the Defendant will bring an Application to the Worplace Safety and Insurance Appeals Tribunal (WSIAT) to have the lawsuit kicked out of Court and force the injured worker to pursue a WSIB claim.

In most cases, the injured worker does NOT have a choice. They can try suing, but they will be unsuccessful and have to go the WSIB route.

WSIB acts as a shield to lawsuits and protects employers from getting sued. Even if an employer is not paying WSIB premiums, the lawsuit will still not succeed if it needs to go through the WSIB. While the employer may be fined or punished for not paying premiums, that still doesn’t change the fact that the lawsuit against the employer will be statue barred for forced to proceed through the WSIB system.

There are policy reasons behind forcing legitimate workplace injury claims to go through WSIB and not through the Courts.

  1. Protecting employers from litigation to keep their operating costs down. How can an employer be expected to run a successful business and make payroll if they are constantly fighting off lawsuits and needing to pay lawyers’ bills?
  2. The workplace would be toxic if an employee is engaged in a bitter lawsuit against their employer (while still working there of course)
  3. The WSIB system is intended to make fast and easy no fault payouts to injured workers who cannot earn a wage and who need treatment. While this all sounds great and ideal, unfortunately it often does not work out this way in reality for injured workers. I’m sure some of which would trade in those fast and easy benefits for their day in Court.
  4. The WSIB is intended to be non-adversarial. Based on what we’ve seen, this couldn’t be further from the truth.
  5. The WSIB is intended to level the playing field for injured workers without the means to hire a lawyer. Imagine an injured worker of limited means suing a large multi national employer with unlimited means and how that would play out in Court. Likely much the same as injured accident victims suing large multi national insurance companies in car accident cases. Unless the lawyer takes the case on a contingency fee basis, chances are the case won’t even get off the ground.

Why would somebody want to go the lawsuit route, and no the WSIB route?

For starters, some people want to have their day in Court. They want an acknowledgment from their employer that they have been wronged and that they will be compensated directly by their employer for their wrongdoing. While the majority of personal injury cases do settle out of Court; there is a satisfaction to the Plaintiff knowing that their settlement would not have been paid out if the Defendant insurer didn’t recognize that the Plaintiff had been wronged and is deserving of compensation. I don’t know a single insurance company which writes settlement cheques lightly; or gratuitously.

Another reason people want to go the lawsuit route is money. The benefits and potential awards available under the WSIB regime pale in comparison to the damages which a Court of the Superior Court can order. Translation: there is the potential for more money on the litigation route than the WSIB route.linkedin-2-300x300

But this sword cuts both ways. There is more risk going ahead with litigation (if available to the claimant), but there is also a chance of losing the case. If the Plaintiff loses the case, not only will they not receive any compensation; but a Judge may order that they have to pay for the Defendant’s legal costs. That’s the way our system works. Compare this risk to the WSIB system where they make no fault payouts. That means that regardless of fault, the WSIB will pay the benefits which the injured worker is entitled to.

Very few personal injury lawyers do WSIB work. Some certainly do; but not the majority. Why not? For starters; WSIB cases are as lucrative as personal injury litigation cases. Another twist is that the WSIB benefits and the awards are payable directly to the injured worker. There’s nothing wrong with that, but if the lawyer is taking the case on a contingency fee basis and the settlement funds go directly to the client; there’s no guarantee that the client will honour the lawyer’s bill. You would be amazed at how quickly a settlement cheque can get spent. The next thing you know; all the money is gone and the lawyer doesn’t get paid.

In some cases the injured worker can “opt out” of WSIB and elect to go the litigation route. This is common in car accident cases which arise in the course of employment. In those types of cases, the injured worker can elect to make an accident benefit claim so long as they are also pursuing a tort claim against the at fault driver. Ontario’s not fault accident benefit regime is more generous that the WSIB system, so there are advantages for an injured worker going this route. There are a few legal hurdles to clear and paper work to complete but it’s nothing which a knowledgable personal injury lawyer can’t handle.


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