Preventing accidents and occupational diseases at your workplace
As an employer, it is not only in your best interest to maintain a healthy and safe workplace and to prevent workplace injuries and occupational diseases, it is also your legal obligation under the OHSA.
a) How the WSIB defines “accident”
According to the WSIA, accidents include,
- a chance event caused by a physical or natural incident, i.e., falling off a ladder or frostbite
- a wilful and intentional act, but not an act of the worker, i.e., being assaulted by a co-worker, and
- a disablement, which may be a condition that,
– has emerged gradually over time, and cannot be attributed to a clearly defined time or place, i.e., carpal tunnel syndrome, or
– is an “unexpected result” of the worker’s duties, wherein an accident that was originally believed to be minor resulted in disablement later, i.e., a back injury from bending over to pick up equipment.
While the first two types of claims are often straightforward, the third is much more difficult to adjudicate. Although it continues to be the responsibility of the decision-maker to investigate the claim and collect the evidence, in the case of a disablement claim it is up to the worker to show that the disablement arose out of and in the course of his/her employment in order for the claim to be accepted. The information that you provide to the WSIB with respect to the work activities performed is important in the decision-making process. Please contact the OEA for assistance if you have such a claim.
For many first responders, post-traumatic stress disorder (PTSD) is presumed to have arisen out of and in the course of his/her employment unless the contrary is shown. The employer can rebut this presumption on various grounds.
Workers can claim WSIB benefits for chronic mental stress (CMS) that arises predominantly from one or more substantial work-related stressors, including workplace bullying or harassment.
Traumatic mental stress (TMS) affecting workers who are covered by the WSIA is no longer required to be acute, sudden, and unexpected to be compensable. The traumatic event(s), or the cumulative effect of a series of traumatic events, that either caused or significantly contributed to the worker’s TMS, can include workplace harassment and bullying.
Entitlement will not be granted for any kind of mental stress that is caused by the employer’s decisions relating to the worker’s employment, i.e., termination, discipline, changing work conditions, etc.
Claims involving mental stress are complex. You should contact the OEA if you have one of these claims.
b) How the WSIB defines “occupational disease”
An occupational disease includes,
- a disease resulting from exposure to a substance that is related to a particular industrial process, trade or occupation, i.e., developing asthma from working in a bakery
- a disease peculiar to, or characteristic of, an industrial process, trade or occupation, i.e., the development of lead toxicity is not a disease, but is a precursor that can lead to severe damage of the central nervous system and is compensable prior to developing the disease
- a medical condition that, in the WSIB’s opinion, requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an occupational disease
- a disease mentioned in Schedules 3 or 4 of O. Reg. 175/98, or
- a disease listed in the WSIA applicable to firefighters and fire investigators.
A worker who suffers from, and is impaired by, an occupational disease is entitled to receive benefits under the WSIA as if the disease were a personal injury by accident.
When you need to report an accident or an occupational disease
Employers must report accidents or occupational diseases to the WSIB by completing the “Employer’s Report of Injury/Disease” Form 0007A (Form 7) when an injury or disease causes a worker to,
- obtain health care
- be absent from his/her regular work beyond the date of accident
- require modified duties at less than regular pay
- earn less than regular pay at regular work, or
- require modified work at regular pay for more than seven calendar days.
How to determine the date of accident for a disablement claim
In a gradual onset disablement claim, the date of injury is the earlier of the date medical attention is first sought which led to the diagnosis, or to the date of diagnosis. This impacts the employer’s obligation to re-employ the injured worker and to contribute towards the worker’s employment benefits.
What to do if an accident happens
Administer first aid immediately and arrange and pay for transportation to a medical clinic, a health care practitioner, a hospital or the worker’s home, if required. Have someone accompany the injured worker on your behalf, if necessary.
Provide the worker with a copy of the “Functional Abilities Form for Planning Early and Safe Return to Work” Form 2647A (FA Form) for the treating health care practitioner to complete and return.
Depending on the severity of the accident, obtain a signed statement from the injured worker as soon as possible. If a signed statement is not possible, obtain a statement by phone. Interview everyone who may have seen the accident and get witness statements. Ensure the witness reads and clearly understands the statement, and have the witness sign and date the statement. If statements are provided in another language, identify the interpreter and the language in which the statement was provided. Have a third person witness the interview. Get written statements from any worker who was in view of the accident, but did not see anything. Visit the site of the accident to prepare drawings of the layout of the area and to take photographs of any equipment and materials involved. Do not clean up or re-arrange the site until after the investigation has been completed.
The employer must report the accident to the WSIB by completing a Form 7 within three calendar days of learning of the accident, and the WSIB must receive it within seven business days from when the employer learns about the accident. The Form 7 is available on the WSIB’s website, and can be completed and filed electronically. You can also provide additional information such as copies of statements, drawings, photographs, etc.
Give the injured worker a copy of the Form 7 and any attachments provided to the WSIB.
Employers who take more than 30 days to report an accident to the WSIB at the initial entitlement stage will be fined $1,000. Additional administrative penalties of $250 will continue to be separately applied for incomplete reporting, failing to use an appropriate reporting form, and failing to give the worker a copy of the completed Form 7. Failure to meet reporting obligations is an offence under the WSIA and, if found guilty, individuals may be fined up to $25,000 and/or imprisoned for up to six months for each offence. Corporations are liable to a fine of up to $500,000 for each offence.
The worker must complete, sign and submit the “Worker’s Report of Injury/Disease” Form 0006A (Form 6) to the WSIB in order to claim WSIB benefits and consent to the release of functional abilities information to the WSIB and the employer. If the worker does not file a claim for benefits or consent to the disclosure of functional abilities information within the six-month deadline, the WSIB will not provide benefits. The functional abilities information will help the workplace parties (WPPs – workers and employers), union representatives and other authorized representatives, where applicable, develop an appropriate WR plan for the injured worker. Workers are required by law to give employers access to this information.
The worker must provide the employer with a copy of the completed Form 6 and any attachments at the same time this information is provided to the WSIB.
You must also maintain your contributions to the injured worker’s employment benefits (i.e., health insurance, life insurance, and pension plan contributions), if any, for one year from the date of accident while the injured worker is off work. These contributions must be maintained provided the injured worker continues to pay his/her share of the contributions. This obligation does not apply to employers participating in multi-employer benefit plans.
When to contact the Ministry of Labour, Training and Skills Development (MLTSD) about a serious workplace injury or disease
If a worker has been critically injured or killed at the workplace, you must directly contact an inspector at the closest MLTSD office immediately, as well as the joint health and safety committee, or health and safety representative, and the union, if there is one. You must also send written notification to an MLTSD director, within 48 hours, explaining what happened and providing any information that might be required.
If you are told that a current or former worker has an occupational disease or that a claim for an occupational disease has been filed with the WSIB, you must provide written notification to an MLTSD director, the joint health and safety committee, or health and safety representative, and the union, if there is one, within four days.
How the WSIB makes decisions on occupational disease claims
O. Reg. 175/98 includes Schedules 3 and 4 which list the specific diseases for which there is a presumption of entitlement. The WSIB also has policy guidelines for several specific diseases including asbestosis, noise-induced hearing loss, tinnitus, occupational aluminum exposure, dementia, Alzheimer’s disease and other neurological effects, tuberculosis, scleroderma, and post-exposure prophylaxis for occupational exposure to HIV. Occupational disease claims that are not covered by the schedules or the policies are adjudicated on the merits and justice of the case.
Occupational disease claims are complex and have special rules. Contact the OEA for assistance if you have such a claim
What an injured worker could get paid, if the claim is allowed
LOE benefits are generally based on the worker’s actual employment earnings at the time of the injury/disease. Workers with injury/disease dates after January 1, 1998 who are absent from work because of their work-related injury/disease will receive LOE benefits equivalent to 85% of their pre-injury net average earnings (NAE). Workers with injury/disease dates prior to January 1, 1998 receive 90% of their NAE. LOE benefits may include both a short-term and a long-term benefit rate depending on how long the worker is off work. In occupational disease claims, a worker who has permanently left the workforce, i.e., retired, prior to the injury date would not be entitled to LOE benefits because no loss of earnings would be experienced.
The worker’s LOE benefits can be adjusted any time prior to the final 72-month benefit review as a result of any material change in circumstances, or for a failure to report any material change that takes place after January 1, 1998.
a) Short-term benefit rate
Short-term average earnings include the worker’s earnings from the injury employer and all other employment (“concurrent employment”) at the time the worker was injured. Short-term average earnings are used to pay LOE benefits for the first 12 weeks after the injury. Some of the types of earnings included in the calculation of regular short-term earnings are,
- the base rate of pay with the injury employer (hourly, daily or weekly)
- gratuities and tips included as gross earnings for income tax
- shift differentials
- vacation pay that is calculated as a percentage of the base rate and paid regularly on paycheques
- mandatory overtime
- regular voluntary overtime
- regular production bonuses and commissions, and
- room and board if they are part of the worker’s pay.
b) Long-term benefit rate
The long-term rate is paid from the start of the 13th week following the injury and is based on the worker’s earnings pattern generally 12 months prior to the accident date or less if there was a break in the worker’s employment pattern.
OPM Doc. No. 18-02-02, “Determining Short-term Average Earnings,” includes a table outlining the types of earnings that are included in the short-term and long-term earnings basis calculation.
Other groups of workers to which different rules apply
There is a separate WSIB policy that outlines the procedure for calculating short- and long-term average earnings for dependent contractors, workers who have optional insurance, apprentices, learners, students, pupils enrolled in a Ministry of Education program, members of a volunteer force, emergency workers, and individuals participating in the Ontario Works program.
Ensure the worker is receiving the appropriate amount of LOE benefits
Since the WSIB assumes the worker’s short-term and long-term average earnings are the same, it usually does not automatically recalculate average earnings. You may need to ask the WSIB for a recalculation if the short-term average earnings do not reflect the long-term average earnings.
Either the employer or the worker can request a recalculation of LOE benefits. If a recalculation results in a lower rate, a benefit-related debt is created and the worker may have to pay that amount back to the WSIB.
All benefits are subject to the worker’s cooperation. You should contact the decision-maker if you have reason to believe the worker is not fulfilling his/her obligation to cooperate in the WR process.
When LOE benefits are discontinued
LOE payments continue until the earliest of one of the following situations occurs:
- the worker no longer suffers a wage loss as a result of the injury, or
- the worker is no longer impaired as a result of the injury, or
- the worker turns age 65, provided the worker was less than 63 years of age at the time of the injury, or
- two years after the date of the injury, if the worker was 63 years old or older on the date of the injury.
The worker may also be entitled to a NEL benefit if the work-related injury/disease results in a permanent impairment. The WSIB defines a “permanent impairment” as any permanent physical or functional abnormality or loss resulting from a work-related injury/disease, as well as any psychological damage arising from that abnormality or loss.
Injury costs covered by the WSIB
Once a claim is accepted the WSIB provides the following benefits:
- health care
- health care equipment and supplies
- NEL benefits
- work transition (WT) services for workers or surviving spouses to assist in WR
- loss of retirement income (LRI)
- future economic loss (FEL) benefits for injuries occurring between 1990 and 1997
- costs covered under the occupational disease and survivor benefit program
- benefits for seriously injured workers, and
- benefits for the worker’s survivors.
How the WSIB decides whether a worker is entitled to LOE payments and other services
In order for a WSIB claim to be allowed, the following five criteria must be met:
- the employer’s business activity is covered under the WSIA
- the worker is covered under the WSIA
- there is a personal work-related injury
- there is proof of accident, and
- the medical diagnosis is compatible with the accident or disablement history.
Following an injury, the WSIB weighs the evidence and makes a decision based on the merits of the particular claim, ensuring that its decision is consistent with the provisions of the WSIA and WSIB policies. In cases where evidence is approximately equal on both sides of an issue, the WSIB will decide in favour of the worker (or spouse or dependent) who is making the claim. This provision is known as the “benefit of doubt.”