Workplace Safety and Insurance Act PDF

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WSIA notes, used this in my exam and it was perfect...

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WSIA Chapter 1 Pre 1985 injuries: - Features a benefit structure with temporary compensation benefits permanent disability pension benefits based predominantly on percentage of permanent impairment ( a meat chart) and payable for life pension supplementary benefits Pre 1989 injuries - A benefit structure similar to pre 1985 injuries but with compensation based upon 90 percent of pre-injury net average earnings and a much more generous survivors benefits featuring both a lump sum payment to survivors and ongoing benefits that are usually related to pre-injury earning level of the injured workers. Post january 1 1998 injuries - Loss of earnings benefits (LOE) - LOE are conceptually similar to FEL benefits, replacing both temporary and FEL benefits as yr ay in which earnings loss is compensated. - LOE benefits are calculated based upon 85 percent of pre injury net average earnings - There is an LOE retirement benefit payable after age 65 similar to the FEL retirement benefit but based upon a defined contribution of 5% of the LOE benefit paid. No major changes were made to survivors' benefits.

Pre 1997 act - Means the workers compensation act as it reads on december 31, 1997 Pre 1998 injury - Means a personal injury by accident or an occupational disease that occurs before january 1 1998 Section 102 of the workplace safety and insurance act 1997 states further that; - The pre 1997 act, as it is deemed to have amended by this part, continues to apply with respect to pre 1998 injuries There Are a number of amendments to the pre 1997 act that are contained in section 103 to 112 of the WSIA 1997 The WCA that is referred to as the pre 1997 act is the workers compensation act as amended to december 31, 1997 - original source was WCA 1989

There are two levels of appeal in Ontario's workers' compensation system, an internal appeal at the Workplace Safety and Insurance Board (WSIB) before the Appeals Resolution Officer (ARO) and following that appeal, an external appeal at the Workplace Safety and Insurance Appeals Tribunal (WSIAT).

Workers Compensation resources - the claim is administered by the WSIB and the first stage of appeal is at the wsib WSIAT website - Appeals Tribunal - the final stage of appeal heard by a panel of adjudicators via an oral hearing (this agency is independent from the WSIB and looks at the claim with fresh eyes hearing de novo. WSIAT decisions are available on Canlii , you may also find selected ARO (Appeals Resolution Officer wsib decisions) but only dating from 2009 Office of the worker advisor Office of the employer advisor

schedule 1 Employer no fault insurance system wherein they pay premiums to the board and the cost of the claim is paid to the worker by the WSIB , a framer . construction, this industry is rated at approx 10 - 17% eamply ABC Construction for this remittance period has a payroll of $100,00.00 wsib rated them at 10% for this quarter the employer has to remit 10K as their premium Schedule 2 Employer the claim must be administered by the Board , although if the WSIB says the worker is entitled to benefits they come out of the employers pocket, they do not pay the premiums quarterly on payroll like the Schedule 1 PTSD for first responders it is an automatic presumption of law It means the board presumes that if you are a first responder and your medical Evaluation states you have PTSD the worker gets benefits - OMG this is horrible for the schedule 2 - my job was to appeal the benefits awarded to the first responders and prove to the board it is not a workplace injury. Reclassification schedule one employers - ex) restaurant cafe franchise , on their app they stated they construct the restaurants , wsib assigned the constructions 9%, for many years this franchisor paid high premiums to the board, until one day they realized they were rated wrong, my job was to appeal the rate and get a bunch money back for the employer for overpayment in premiums - there is policy for this, reclassified at a rate of 1.7%,

Occupational classification system Fair practice commission Health and safety - Occupational health and safety act Written publications - Butterworths workers - Compensation in ontario, updated several times annually Board policy - WSIA has policy - OPM (operational policy manual - ECM - employment classification manual Administration and Interpretation of the Act - entitlement to workers compensation is in lieu of all rights of action the boards jurisdiction includes - the board maintains an accident fund to pay for future costs of accidents - the board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under the WSIA - the board can determine its own practices and procedures " an agency is the master of its own process" Claim is initially handled by the boards staff doctors help the injured worker fill out the claim form , many docs will fax it to the WSIB Eligibility adjudicators, case manager, Nurse consultant, Work Transition specialists Board investigators Employer revenue matters handled by account specialists and account analysts.

Decisions of the board may be disputed and the first level of appeal is to the ARO , appeals resolution Officer Final level of appeal is at WSIAT there is a privative clause which does not allow further appeal to the courts - look up privitive in the WSIA limitation periods for appeal , usually it is 6 months but not every issue is 6 months

Considerations in interpreting the act - workers compensation legislation is remedial - one provision of the act should not be read in isolation of other provisions - decisions are made using the stand of BOP (Balance of Probabilities) - the merits and justice board policy - homework look up - section 126 (1) - look up - the board is an inquiry system (inquisitorial) - presumptions of law - issues of causation are determined on a subjective and not objective basis and the

"thin-skulled rule" doctrine applies

Coverage of the Act individuals and dependants are generally entitled to compensation for injuries by accident "arising out of and in the course of employment" if 3 conditions are met: the individual's employer has coverage - the individual is considered a worker - the injury occurs within the geographic limitations specified by the WSIA IMPT -

- there were major changes that came into effect Jan 1 , 2013 which governs the construction industry .

schedule 2- exclusions international airlines railways telephone co. and the ontario govt No coverage for casual workers No coverage for selling things out of your own home or any other premises not under the control or management of the person who gave out the articles or materials NO coverage for executive officers of a corporation , unless its construction industry. No coverage if the worker is not authorized to work in canada no coverage for Independent Operators - tricky many disputes on this , exception constructions Look up definition of Independent Operator "organizational test" "business reality test"

Geographic Limitations sections 18 to 20 of the act Accidents outside of Ontario are dealt with s. 19 ,and policy document 15-01-11 "substantial connection test"

Day 2 Injury By accident arising out of and in the course of employment Look up Traumatic Mental Stress Policy Section 13(1) - The date of injury is very important for the administration of benefits - "work-relatedness" there is a work relatedness presumption in section 13(2) Personal Injury this term is not defined in the act, although section 39 (2) somewhat defines it per-accident impairment these are compensable on an "aggravation basis" , - The intent of this tho, is to LIMIT entitlement to the extent of the aggravation only. but the paralegal will still try to argue full entitlement

nervous disorders psychologically based loss of voice or stress, these can also be considered a personal injury - we will rely on the Chronic Mental stress policy for these types of conditions the board used the "reasonable person test" when making decision Accident - defined in section 2 (1) how do the courts and the board view a "chance event" unexpected in the eyes of the victim Board Policy defines chance event - - look up policy - - repetitive work ( chance event injuries)

Occupational Disease - Scheduled Diseases - considered occupational disease - section 15(3) contains a presumption stating that if a worker "was employed in a process set in Schedule 3" if they contract a disease the disease is presumed to have occured due to the nature of the employment - section 15(4) contains a stronger presumption Schedule 4 "non-scheduled" diseases , but no presumption with these for these non scheduled diseases we will use the disablement definition these are extremely hard to establish - the non scheduled diseases may have a number of causes was it because he was a smoker that has this disease or is it work related Injuries arising out of employment you must establish a causal relationship between the work activity and the work injury Injury in the course of employment - place, - Time - Activity comes in to play Board Policy is that compensation is not payable to workers who voluntarily take themselves out the employment - "Place" may be difficult to establish especially in cases of injury where going and coming from work,running errands Was it a dual purpose trip? You may have established employer premises. "time" easy to establish is the worker has regular working hours , otherwise may be more difficult "Activity" -

- take these factor into consideration

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-the duration of the activity

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the nature of the activity

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the extent to which it deviated from the workers regular employment activities

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nature of the work

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nature of the work environment

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customs and practices of a workplace

Serious Wilful conduct -

section 17 ( if the injury was caused by a workers own willful misconduct then it is not compensable" , unless it results in serious impairment or death

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there is no board policy , but the board take a 3 question approach:

Assaults, fighting and horseplay -

still apply section 17 - if there is a criminal conviction ( the board stands by the criminal code no compensation), .

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If the board compensated the offender this would be view by society as " abuse of process" an innocent victim in horseplay or assault will be compensated for their injury unless they participated or retaliated.

COVID-19 claims -

is entitled to benefits is it is arising out of and in the course of employment , board has published a document that provides entitlement guidelines

Rehabilitation and Return to work look up "suitable work" there is a board presumption that if the employer fires the worker within 6 months or reemployment the board presumes they were fired because of their injury and will compensate the work LOE Rehabilitation -

no statutory reference to this but board has establish ESRTW - Early and safe return to work and LMR (Labour Market Reentry) , now more generally referred to as RTW - return to work WR, (Work-reintegration)

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Human rights always comes into play with the accomodation of the workplace unless is causes employer undue hardships

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What will happen if the worker does not cooperate with RTW -

cut off from benefits (the benefits will be suspended)

If the RTW is successful then LOE will be adjusted -

either LOE stops or they will top up suitable occupation (SO)

The general rule is that the RTW plan will not exceed 3 years in duration

wsib decides to rededuate the worker, the worker the Paralegal Program ,during program the worker will receive full LOE -

but once done the program the wsib will take the average wage of a paralegal to determine if any LOE is owing

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client was a carpenter was making 45 per hour, the average of paralegal is 30 , they will top up the extra 15 at 85%

no definition in the Act for RTW you only have 30 days to appeal RTW decision, LOE is 6 months

for an appeal at the WSIB -

first you need to file an Notice of Objection form

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To hurry up and meet the deadline I generally file "a book mark objection"

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I indicate that the worker disagrees with the front line decision, page 2 reasons: the decision maker failed to apply facts and policy reasonably .

Suitable Employment -

WSIB operational policy -19-02-07 - lookup

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an offer of Suitable employment does not need to be made in writing

FAF - Functional Ability Form

Textbook Notes 3+ Chapter 3 Workers compensation legislation was introduced in 1914 in response to the report of the chief justice of Ontario, sir william ralph meredith. This original legislation reflected an historic bargain between workers and employers whereby workers gave up their limited rights to pursue civil actions for work related injuries in return for compensation benefits paid for by their employers.

One of the initial meredith recommendations -

That the workers compensation system should be administered by a government appointed board and that there should be no access to the courts to dispute the board's decisions

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The recommendation to exclude a role for the courts was made to render it impossible for a wealthy employer to harass an employee by compelling him to litigate his claim in a court of law

The boards jurisdiction includes the following (section 159- 161 of WSIA ) -

The board maintains an accident fund to pay for the future costs of most past accidents. For those employers who are directly responsible for the cost of claims from their own workers, the board monitors the sufficiency of funds allocated by those employers for this purpose

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The board has exclusive jurisdiction to examine, hear, and decide all matters and questions arising under the WSIA 1997, except where the act provides otherwise

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The board can determine its own practices and procedures

Decisions of the board may be disputed and the first level of appeal is to an appeals resolution officer within the appeals branch of the workplace safety and insurance board The final level of appeal in the Ontario workers compensation system is to an external appeals tribunal, the WSIB appeals tribunal, however the tribunal must apply applicable board policies when making its decisions on appeals. Employers revenue matters are initially handled by the account specialist and account analyst There is a number of provisions in the legislation, case law and policy that can have a bearing on the manner in which workers’ compensation legislation is generally adjudicated; -

Workers compensation legislation is remedial legislation and should be interpreted as such

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One provision of the act should not be read in isolation from the other provisions

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Chapter 4 Individuals or their dependants are generally entitled to compensation for personal injuries by accident arising out of and in the course of employment it three conditions are met: -

The individual's employer has coverage

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The individuals is considered to be a worker

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The injury occurs within the geography, limitations specified by the WSIA 1997

The WSIA defines “employer” -

A trustee, receiver, liquidator, executor or administrator who carries on an industry

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A person who authorizes or permits a learner to be on or about an industry for the purpose of undergoing training or probationary work, or

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A deemed employer

There are a variety of other sources of coverage other than mandatory inclusions in the schedules. Some other sources of coverage include; -

The government employees compensation act, for federal government employees

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Optional election for inclusions in schedule 1

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Deemed employers of municipal volunteer fire and ambulance brigades and auxiliary members of police force

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Deemed employers of persons who are summoned to assist in extinguishing a fire or who in some conditions voluntarily assist in search and rescue or declared emergencies

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Training agencies

WSIA defines “worker” as; -

A learner

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A student

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An auxiliary member of a police force

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A member of a volunteer ambulance brigade

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A member of a municipal fire brigade whose membership has been approved by the chief of the fire department of by a person authorized to do so by the entity responsible for the brigade

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A person summoned to assist in controlling a extinguishing a fire by an authority empowered to do so

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A person who assist in a search and rescue operation at the request of an under the direction of a member of the ontario provincial police

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A person who assist in connection with an emergency that has been declared by the lieutenant governor in council or the premiere under section 7.0.1

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A person deemed to be a work of an employer by a direction r under of the board

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A pupil deemed to be a worker under the education act

Regardless of a person's status there is no coverage for -

Persons whose employment by an employer is of a casual nature and ho are employed otherwise that for the purpose of the employers industry

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Persons to whom articles pr materials are given out to be made up, cleaned and washed, altered, ornamented, finished, repaired or adapted for sale in the person's own home or on other premises not under the control or management of the person who gave out the articles or material

Section 18 (page 19 in book) -

If the person resides and is employed by an ontario corporation but travels outside of ontario and gets into an accident outside of ontario the employer is entitled to benefits of the employer was out of the province for less than 6 months at a time

Section 19 WSIA or document number 15-01-11 WSIB’s operational policy manual -

Accidents outside of ontario

Last day of class Section 22.1(1) Claim Suppression ( this is not allowed) , -

an employer is not allowed to suppress a claim . prohibits employers from discouraging or preventing the worker from filing a claim for benefits - no undue influence allowed

Section 16 - No waiver of rights -

if there is a contract between the employee and employer which has a clause to waive wsia benefits , however it is permitted for schedule 2 workers to agree

if a worker resigns or retires on the benefit they are receiving, they prejudice their claim for benefits No Discrimation - Human rights Code applies Wages on the day of injury -employers are responsible for paying

Continuation of employment benefits - section 25, basically an employer must do so for 1 year following the injury. Employers report of injury - Employer MUST notify the board within 3 days after learning of a workers accident section 22(1) the workers claim for benefits and consent to disclose FAF (Functional Abilities Form) -

it MUST be on the board approved form

Form and frequency of payment -