Toronto Injury Lawyer Blog
Personal injury law in complicated.
It doesn’t have to be that way.
But unfortunately, it is.
If you are hurt, or injured on the jobsite, you would think that you could retain a personal injury lawyer and sue. The lawsuit might likely have to be against your employer on account of their negligence, or providing an unsafe work environment. This would make sense and seems like a very logical approach.
But that’s not the way the law works.
In the vast majority of cases, workers cannot sue their employers for a workplace injury. In the majority of cases, the injured party will have to make a claim through the Workplace Safety and Insurance Board (WSIB). Even if the injured party retains a personal injury lawyer, and files a claim against their employer in Superior Court, that claim will likely be dismissed because the Plaintiff does not have the right to sue. They must have gone through WSIB.
A Plaintiff cannot have both a WSIB Claim, and a personal injury lawsuit. In the majority of cases, the Plaintiff does not have a choice. They MUST go through WSIB.
WSIB acts as a shield to employers. The employer pays a monthly premium, and then they are insured or sheltered from all lawsuits from their employees in relation to workplace accidents or injuries.
There are some legitimate policy reasons for this sort of approach.
For starters, offering employers a form of workplace insurance against claims reduces their overhead, exposure and costs. Instead of saving for a rainy day to payout on a potential claim, they pool their money into a government run quasi insurer to handle and administer workplace injury claims.
For employees, they know that in the event of a serious workplace accident, that there will be a pool of money to collect from. Their potential claim will not bankrupt the employer in the form of legal fees or a judgment. The employee will get paid something. Whether or not that something is adequate is a conversation for another day. Keep in mind that awards through lawsuits tend to be more generous than awards and benefits recoverable through the WSIB. But, at the end of the day, the WSIB system provides certainty that injured workers will receive some form of compensation or benefits for their workplace injury.
Another policy point is the relationship between the employer and employee. The employer/employee relationship will be ruined on account of a lawsuit commenced in Superior Court. The chances of that employee returning to a non-toxic work environment aren’t very good once litigation has commenced. With a third party WSIB system which keeps the employer out of the way, that relationship is preserved to the greatest extent possible. How much, or how little, in terms of compensation or benefits which the employee receives is outside of the control of the employer. That’s not such a bad thing to have the employer have no interest or influence in terms of how much, or how little, compensation which the injured employee receives. This system is supposed to keep the employer/employee relationship in tact so that everyone can return to business as usual should that be an option once the claim is closed. That’s not such a bad thing.
Here’s where it can get tricky.
Just because you’ve been involved in a workplace accident, does not automatically mean that the case must go through WSIB.
There are situations where an injured worker can “opt out” of WSIB, in order to pursue a claim against a responsible third party who is NOT their employer. This will largely depend on whether or not the employer is listed as a Schedule 1, or a Schedule 2 employer. Some employers such as banks and dental offices are not required to have WSIB coverage at all, so employees are free to sue their employers for injuries at work.
The most common situation which we have seen at Goldfinger Injury Lawyers where employees who are acting in the course of their employment are free to opt out of WSIB occurs when there is a car accident involving a company motor vehicle. The injured worker, who is driving a company car, or in the course of their employment gets into a motor vehicle accident with an at fault third party driver. In that scenario, the injured worker has a decision to make. S/he can elect to pursue WSIB benefits. If they elect this route, they will be entitled to WSIB benefits, but they will not be able to make a claim for pain and suffering against the at fault driver. The WSIB benefits will likely be LESS than what s/he can recover through accident benefits and a civil lawsuit. The other way is for the injured worker to make an election and “opt out” of WSIB in order to pursue a third party claim against the at fault driver. The injured worker will be able to claim accident benefits and pursue a tort claim for pain and suffering amongst other damages against the at fault party and his/her insurer. The potential award in such a case will likely be greater than had the injured worker pursued the WSIB route. In plain English, there will likely be more money for the injure party in pursuing the civil route instead of going the WSIB route.
Whether or not the injured party pursues the WSIB route, or the civil route is a hard decision to make. It’s a decision which is generally made in consultation with an experienced personal injury lawyer, because it’s such an important decision with many considerations. Other times, there is no decision to make whatsoever. The injured worker might want to bring a civil action, but s/he cannot do so because the law requires that their claim go through WSIB and WSIB alone. This can be disheartening for injured workers who want to have their day in Court so to day. This is unfortunately just how the law works and we have no option but to work within the framework which the law has provided to us.
