In our experience as personal injury lawyers, we are often asked for advice regarding Worker’s Compensation Benefits in the case of clients injured in motor-vehicle accidents while on the job. This is particularly when  the client contemplates suing the at fault party.

There are various categories of benefits available to those injured in accidents.

SABS (Statutory Accident Benefits Schedule)

All Ontario residents are entitled to statutory benefits under the SABS  if they have been injured in a motor-vehicle accident, regardless of fault. The schedule is a regulation made under the Insurance Act of Ontario.

These accident benefits, payable by your own insurers, are aimed at compensating injured victims for:

• expenses incurred in medical and rehabilitation treatment,
• provide care
• replace your income

while you recover from injuries. The types of benefits include:

• Income replacement
• Non-earner
• Disability
• Care-giver
• Housekeeping
• Attendant care
• Home-maintenance
• Medical/rehabilitation
• Other expenses related to the accident/injuries

These benefits are governed by the standard motor-vehicle insurance policy.

There are certain qualifying criteria for each category of benefit. It’s  best to consult an experienced personal injury lawyer who handles such cases exclusively to understand your rights.

WISB (Worker’s Insurance and Safety Board)

The WISB  provides compensation benefits to those who have been injured during the course of their work. You are entitled to receive compensation if you’re not capable of performing your pre-injury duties or modified employment. WISB benefits are also available to those injured in accidents outside Ontario.

There are strict guidelines and time-frames regarding filing for WISB benefits. All treatment has to be pre-approved by WISB. Payments are made only for the acute phase of your injury. You can apply for the Serious Injury Program based on your eligibility.

Employers are obliged by law to report the injury to WISB and open a claim.

New Regulations and Restrictions

However, new regulations in force since September 1, 2010 deem that there are certain restrictions placed on award of these benefits. Insurers are not required to pay statutory benefits if the injured person is entitled to receive WISB benefits.

Additionally, victims are also entitled to sue at fault party whose negligence/fault caused the accident.

Victims can elect to opt out of claiming workplace benefits, but only if this is done in order to pursue a tort action to sue the at fault party.

Essentially this means that both benefits cannot be availed of. In general, receiving WISB benefits bars an injured person from suing the employer or any other party. Van-Kemp J. noted in Cohen vs Smith (1995) 25 O.R. (3d) 264: “There is no double recovery under the Worker’s Compensation Act (now the WSIA). If the worker or his dependents elect to claim benefits under the Act, all his rights are subrogated. If he elects to sue in tort, he receives no benefits under the Act.”

Again, there are several important restrictions that clients need to be advised of. In some situations, no suit can be brought, depending on whether the employer is designated as a Schedule 1 or Schedule 2 employer.

However, clients have the right to select which course of action to follow. This is why consulting an experienced personal injury lawyer before electing to receive WISB benefits would be a wise decision.

Reversing or Repaying WISB Benefits 

In some cases, the client wishes to withdraw the claim for benefits and pursue a tort action. An experienced personal injury lawyer with expertise in this area should be consulted. There are important steps to be followed:

• Client has to complete and return a Withdrawal of Election form from WISB. Following this, no more benefits will accrue from WISB.
• Client has to sign an Assignment acknowledging the exact debt to WISB regarding benefits received till date.
• Client must sign an Authorization and Direction which directs his lawyers to pay WISB for all costs/benefits incurred on his behalf.

How We Can Assist

It’s important to weigh the pros and cons of claiming SABS vs electing to sue the at fault party. We can assist you with conducting a cost-benefit analysis that examines the individual merits of opting for statutory benefits instead of claiming WISB benefits.

The costs of opting out of WISB can be quite prohibitive and the alternate plan should be attractive enough to warrant such an election.

We provide all the options in an objective manner to help you arrive at the decision that works best for you, while ensuring that your rights and interests are safeguarded at all times.