What Is WSIB?
WSIB is a workplace injury system set up by the provincial government to handle all workplace injury payments instead of having injured workers sue privately. Because workplace injuries are so common in Ontario, the government decided there should be a system for resolving these injuries rather than relying on lawsuits.
The WSIB system is not a formal court system. It is an administrative body presided over by quasi-judges who are government employees appointed by the provincial government.
Since it is not a formal court process it can be handled by a paralegal.
How Does WSIB Work?
WSIB is an administrative board that has multiple levels. A worker’s day to day contact is a case manager. The case manager will gather information about the accident and about you as a worker (what type of work, how much did you make, etc.). This is the first line decision maker who will decide if you are approved, denied, or only partially approved.
If you are unhappy with the decision, you can appeal to the next level person: an appeal resolution officer. This person is the highest level within WSIB. If they do not approve your appeal, you must apply to a higher body that is actually outside WSIB- a tribunal called WSIAT (9:00). WSIAT is a separate entity and is not bound by WSIB decisions- they are the higher body and any decisions they overturn, WSIB must follow.
Why Should I Use A Lawyer?
Any person injured at work should immediately contact a lawyer. You can retain a lawyer at any stage of the process. The best time is immediately after injury but can contact a lawyer at any stage.
The reason to do this is to make sure you are getting the maximum compensation you are legally entitled to. Just because you are getting some compensation doesn’t mean you are not entitled to more!
Many clients who pursue their case on their own are not familiar with WSIB rules so just because they are getting paid some money they assume that it the maximum they can get (9:00). This is especially true for the NEL benefit and LOE benefit. WSIB will often attempt to deny or reduce these benefits to save money and if you don’t know what you are legally entitled to, you won’t know when or how to challenge these decisions.
At the time of your injury you may get full payments, but then as time goes on get less than you are entitled to. For example, if you are forced to do a different type of job because your injuries prevent you from doing your old work and your new job pays less, WSIB should be paying you the difference.
Remember that doctors are not familiar with how WSIB works so you should always consult with a lawyer. A lawyer will take the burden off your shoulders so you have an advocate fighting for you.
Non-Economic Loss Benefit
Non-economic loss benefit, a one-time payment made to an injured worker who has suffered a permanent injury. It is akin to a payment for pain and suffering. But you can receive an NEL for each area of injury- if multiple injuries resulted from a single incident, you are actually entitled to multiple NELs.
NEL benefits can apply not only to past injuries, but also to injuries that are likely in the future. The amount of the NEL is modest but the more severe the injury the higher the amount you will receive.
The NEL is based on a percentage of impairment rating- a rating determined by WSIB. If this rating is high enough, it may entitle you to another benefit- the personal care allowance.
Loss of Earning Benefit
This is the main payment owed to an injured worker, which is meant to be 85% of their net pay at the time of injury. These payments are owed for the duration of the time the person is unable to work.
Because this can be expensive, WSIB will use numerous strategies and mechanisms to reduce the amount. These include stating the worker is able to return to work, that the employer is providing adequate accommodation, or that the worker should get a new job in a “suitable” alternate occupation. If you are self-employed, WSIB may try to claim your income is less than what it actually was just to reduce the LOE payments. The result of any of these strategies is that the worker will receive less than they are entitled or in some cases will not be receiving any payments at all.
An experienced lawyer will be able to assist you in challenging WSIB should they attempt to restrict your payments.
Personal Care Allowance
The NEL is based on a percentage of impairment rating- a rating determined by WSIB. If this rating is high enough, it may entitle you to another benefit- the personal care allowance.
If your impairment rating reaches 60%, WSIB has the obligation to pay a personal care allowance. This is a monthly payment meant to allow the worker to hire outside help to assist with regular life tasks- e.g. taking care of the house- snow shovelling, house cleaning, cooking, etc.
Although these benefits are not available to most workers, they can be a significant payment if you qualify.
How long does it take?
WSIB is a slow moving process: can take years for full resolution from the time you are injured.
It is important to remember that because your WSIB benefits can be reduced or withdrawn at any time, it is always advisable to be in touch with a lawyer about your rights until you are fully able to return to work.
Why shouldn’t I handle my own case without a lawyer?
The WSIB system is complicated and most people don’t have full knowledge of all their rights. Due to this lack of familiarity, people handling their own cases can make basic mistakes that dramatically reduce the payments they receive.
One common mistake is not getting all you can. Many people assume that because they are being paid benefits their claim was fully approved. In reality, you may be legally entitled to more than you are getting because WSIB is withholding benefits you are unaware you can demand.
Another common mistake is failure to ensure early reporting: you want to report not only your major injury, but every minor injury arising out of the accident. You want to fill out a Form 6 for all injuries right away- because if you don’t report it early, WSIB will try to minimize payments you should get for those injuries by claiming you didn’t report it so it wasn’t caused by your accident.
The injured person must be very proactive in making sure all the required forms are filled out: the Form 6 by them, the Form 7 by their employer, and the Form 8 by their treating doctor. The worker can’t just rely on these parties and assume the reporting was done- it is up to you to make sure all forms were filled out properly and submitted.
Limitation Period
Generally you have 6 months from the date of an adverse decision to appeal. However, an experienced lawyer may be able to help you extend the deadline.
Other Benefits Beyond WSIB
People who qualify for WSIB may also qualify for long term disability or CPP disability benefits.
A lawyer who is familiar with these other areas, as well as personal injury law, is they can maximize your compensation and are well versed with strong court skills.
The above information is taken from an interview with the co-founding lawyer of WSIB Resource, Adrian Nicolini. The full interview is available here: