Coban v. Allstate Insurance, 2023 CanLII 40118 (ON LAT)
The applicant was involved in a motor vehicle collision on October 6, 2018. He was deemed catastrophically impaired due to being rendered a paraplegic as a result of the collision.
At the time of the collision, the applicant was participating in a work transition program through WSIB. He had been employed as a painter when he suffered a right shoulder injury. The work transition program had him enroll in a two-year architectural technology program. He completed the program in June 2018 following which WSIB put him in a return-to-work program which required that he attend a nearly two-month full-time work placement and complete a third year of the program.
Following the end of the work placement, they agreed to continue the placement at a reduced capacity of 8 hours per week while the applicant continued his studies to December 2018. The collision on October 6, 2018, prevented the applicant from participating in the work transition program which was discontinued as of November 5, 2018.
The issue before the LAT was whether the applicant was entitled to income replacement benefits and specifically, whether the applicant was employed at the time of the collision. The LAT determined the applicant was employed and entitled to IRBs.
The LAT noted the following:
- The Statutory Accident Benefits Schedule does not define the term “employed.”
- The employer, not WSIB, was in control of the applicant’s duties despite WSIB having final say over what duties the applicant was to perform as part of his work placement and despite the fact that WSIB paid benefits under s. 43(3) of the Workplace Safety and Insurance Act which makes contingent on cooperation on all aspects of the labour market re-entry plan and not number of hours worked.
- While the WSIB had a pre-condition that the applicant was required to work where he could apply his architectural technician training, the employer defined the role and job duties.
- The applicant was required to work 37.5 hours per week during the initial part of the job placement and 8 hours per week when he returned to his studies.
- The applicant was to perform the duties of project administrator pursuant to the job description provided by the employer and report to a supervisor on a regular basis.
For these reasons, the LAT found the applicant satisfied the burden of proving he was employed at the time of the collision. It was reasonable to connect the remuneration from WSIB directly to the employment relationship.