KerrLaw Logo JAMES D. L. KERR
CLIENT MEMO
TO:           Business Clients FROM:   James D.L. Kerr Lawyer
            17 – 151 Merton St.
            Toronto
, Ont., M4S 1A7
            Tel 416 485-4254
            Fax 416 485-8836
            
E-mail: jkerr@kerrlaw.ca
            www.kerrlaw.ca

            Certified Specialist Civil Litigation
DATE:      October 21, 2002
RE:           Workplace Safety & Insurance Act (the "Act")


THE FOLLOWING IS GENERAL INFORMATION RELATING TO THE APPLICATION OF THE ACT:

APPLICATION OF ACT AND OBLIGATION TO REGISTER:

Under section 81 of the Act (formerly the "Workers Compensation Act"), all employers listed in Schedule 1 to the Act must pay premiums. Schedule 1 is established in the General Regulation under the Act.

Under section 75 of the Act, an employer must register with the WSIA Board within 10 days of becoming a Schedule 1 employer. Failure to register is an offence under section 151 which can result in a fine of up to $100,000.

INJURY TO WORKER:

The Act applies to a worker who sustains a personal injury by accident arising out of and in the course of his or her employment. However, if the accident arises in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

The Employer must notify the Board with 3 days of the accident if the accident necessitates health care or results in the worker not being able to earn full wages.

The injured worker must file his/her claim within 6 months, although the Board can extend that time. The worker must provide a copy of his claim to the Employer.

The Employer must continue to provide employment benefits for 1 year after the accident, provided the worker continues to pay his/her share of any cost.

The Employer may request a health examination of an injured worker by a health professional selected and paid for by employer. The health care practitioner must provide a report to the Board and the Employer can request certain information respecting the worker’s functional abilities.

If there is an issue in dispute, the Board shall, upon request, give the Employer access to such documents in the Board’s file about the claim as the Board considers to be relevant to the issue and shall give the Employer a copy of those documents. The worker is, however, entitled to object to the release of his health records; the Board will rule on such an objection.

RETURN TO WORK OBLIGATIONS:

Obligation to Provide/Accept Suitable Employment:

The Employer is obligated to provide suitable employment that is available and consistent with the worker’s functional abilities and that, when possible, restores the worker’s pre-injury earnings.

The worker is obligated to co-operate in his/her early and safe return to work by assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker’s functional abilities.

The employer or the worker shall notify the Board of any difficulty or dispute concerning their co-operation with each other in the worker’s early and safe return to work.

Obligation to Re-employ:

The employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer must offer to re-employ the worker. The obligation does not apply in respect of employers who regularly employ fewer than 20 workers.

When the worker is medically able to perform the essential duties of his or her pre-injury employment, the employer must:

  1. offer to re-employ the worker in the position that the worker held on the date of injury; or
  2. offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of injury.

When the worker is medically able to perform suitable work (although he/she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

The employer shall accommodate the worker or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship. 

The employer is obligated on until the earliest of,
  1. the second anniversary of the date of injury;
  2. one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and
  3. the date on which the worker reaches 65 years of age.

Cannot Terminate Employment for 6 Months:

If an Employer re-employs a worker and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer’s obligation to re-employ.  The employer may rebut the presumption by showing that the termination of the worker’s employment was not related to the injury. There is a three-month limitation on worker’s right to complain about the termination. Default by employer can result in the Board making insurance payments to worker for up to 1 year; such payments are a debt due from the employer to the Board.


.DISCLAIMER: The foregoing is not intended to be a comprehensive guide to the applicable law. General Client Memoranda and mailings from James D.L. Kerr ● Lawyer are intended to inform clients and acquaintances with respect to current issues that may be of interest to them. Memos are current to the date shown on the Memo. The law is constantly changing, however, and for that reason a Memo may not be completely accurate after it's stated date. Where circumstances warrant, the advice of a lawyer or other qualified professional should be obtained.

2002 James D.L. Kerr