WSIB Opt-Out – When It Applies
Overview:
Persons who have been injured in the workplace are eligible to make a claim for compensation through the Workers Safety and Insurance Board (“WSIB”), provided their employer has coverage.
In the 1920’s, compensation for work-related accident injuries claimed through the WSIB shifted to a no-fault system. This means that, if a work-related accident injury occurs because of the negligence of an employer or employee, the only recourse may be WSIB benefits.
The right for compensation from a work-related personal injury is found in section 13(1) of the Workplace Safety and Insurance Act which states that, “A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan”.
This may come as good news for some and bad news for others. If WSIB is mandatory, your claim to another benefit scheme or the right to pursue a lawsuit against at-fault employers or employees could be barred. As such, it is important to know when WSIB is mandatory, when you can opt-out of WSIB and what the pros and cons are of doing so.
When WSIB is Mandatory:
To determine whether WSIB is mandatory, workers must consider the following:
- Is your industry covered by the WSIB regulations?
- Did your work-related accident injury occur in the course of employment?
- Are you restricted by section 28 of the Act?
1. Is Your Industry Covered by the WSIB Regulations?
A regulation to the Workplace Safety and Insurance Act (Regulation 175/98) lists the various industries covered by (and excluded from) the WSIB scheme, and divides them into two “schedules.” Most industries are covered under Schedule 1, including many manufacturing, retail, and service jobs. Schedule 2 covers many publically-funded industries, and industries related to federally-regulated areas (phone, railways, shipbuilding, etc.).
Here are some examples of industries covered under Schedules 1 and 2:
The lists of what industries are included and excluded from a given category are often hyper-specific and confusingly organized, and it’s not easy to generalize which specific jobs will be covered or excluded, and which Schedule will deal with them. For example, did you know that the “manufacturing of artificial Christmas trees” is a covered under Schedule 1, but “balloon-o-gram services” is an excluded industry? In addition, sometimes Schedule 2 employers can opt to become a Schedule 1 employer, which creates added confusion. If in doubt, you can contact WSIB and they will tell you if an employer is covered, and, if so, under which Schedule.
If it turns out that your industry is covered under one of the Schedules, you will have an automatic entitlement to compensation and benefits when injured in work-related accidents, and your rights to pursue other avenues for compensation (like a lawsuit) may be restricted.
2. Did Your Work-Related Accident Injury Occur in the Course of Employment?
WSIB coverage will kick in where an accident injury occurred in the course of employment. This is determined on a case by case basis. Some questions to consider include:
- Place – did the injury occur on the premises of the workplace or where the worker might reasonably have been expected to be while involved in work-related activities?
- Time – did the injury occur during work hours or a reasonable period prior to or after work hours?
- Activity – did the injury occur while the worker was completing work-related duties?
3. Are you restricted by section 28 of the act?
If you are a worker injured in the course of your employment with a Schedule 1 or Schedule 2 employer, then section 28 of the Act will restrict your rights to pursue compensation through any method other than WSIB.
In particular:
- Schedule 1 employees are not permitted to sue any Schedule 1 employers or employees (including their own) if the work-related accident injury occurred while both parties were in the course of employment.
- Schedule 2 employees are not permitted to sue their Schedule 2 employers and that employer’s employees.
If your occupation falls within an industry contained in Schedule 1 or Schedule 2, the work related injury occurred in the course of employment and you are restricted by section 28 of the Act, then you will likely have no choice but to proceed through WSIB to obtain compensation.
NB: not all industries are covered in the Regulation. Employees who work in omitted industries are always entitled to sue at-fault employers or their employees for negligence.
Opting Out of WSIB:
When workers find themselves in situations where WSIB is not mandatory, they may be able to choose whether they will opt for coverage under WSIB, or instead pursue some other benefit scheme or commence a lawsuit.
Once a decision is made, it is imperative that an Election Form is completed and submitted to the WSIB within three months after the work-related accident occurs.
There are various reasons workers might opt-out of WSIB benefits. The primary reason is when some other benefit scheme or lawsuit might provide better compensation. Appendix B lists some pros and cons to consider when there is concurrent entitlement.
Conclusion:
Making an election in your best interest can be a complex legal analysis. Obtaining legal advice to evaluate your situation is strongly recommended.