Operational Policy Manual
On/Off Employers' Premises
A worker is considered to be in the course of employment on entering the employer's premises, as defined, at the proper time, using the accepted means for entering and leaving to perform activities for the purpose of the employer's business. The "In the course of employment" status ends on leaving the employer's premises, unless the worker leaves the premises for the purpose of the employment.
The employer's premises are defined as the building, plant, or location in which the worker is entitled to be, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways, and roads controlled by the employer for the use of the workers when entering or leaving the work site.
An accident shall be considered to arise out of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident
- the accident is occasioned by the injured worker using, for personal reasons, any instrument of added peril such as an automobile, motorcycle, or bicycle, except when the accident was caused by the condition of the road or happening under the control of the employer, or
- the worker is performing an act not incidental to his work or employment obligations.
It is generally considered that workers are in the course of the employment when they reach the employer's premises or place of work. A worker is generally not considered to be in the course of the employment when travelling to or from the workplace, although there are exceptions to this general rule. (See 15-03-05, Travelling .) The WSIB's practice in respect of accidents occurring on an employer's premises centre on geographical location as a determining factor as to whether or not a worker was in the course of employment at the time of the accident. Location has been adopted as the line to be drawn between personal activities and work-related activities.
Without limitation to the following, the WSIB will consider entitlement in claims where a worker is injured when
- going to or from work in transport under the control and supervision of, or chartered by, the employer
- obtaining pay or depositing tools, etc., on the employer's premises after actual work hours
- participating in a work-related sports activity, for example, school teachers and camp counselors, when the employer condones these activities by making the premises available and/or exercising a form of supervision and control
- attending compulsory evening courses
- travelling on company business, by the most direct and uninterrupted route, under the supervision and control of the employer
- travelling to or from a convention and/or participating in convention activities, and
- on a lunch, break, or other non-work period (period of leisure) by ordinary hazards of the employer's premises.
This policy applies to all decisions made on or after June 1, 1989, for all accidents.
This document replaces 03-02-02 dated June 1989.
Workplace Safety and Insurance Act, 1997 , as amended Section 13(1)
Workers' Compensation Act, R.S.O. 1990 , as amended Section 4(1)
Administrative #18, June 25, 2004, Page 381
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- Car Accident in the Course of Employment: WSIB or Lawsuit?
Car Accident in the Course of Employment: WSIB or Lawsuit? by Patricia Santucci
Should you pursue a wsib claim or lawsuit if you’re injured in a car accident while in the course of employment.
I am often asked what happens when someone is injured in a car accident while in the course of his/her employment. Sometimes an injured person has the right to sue, sometimes not.
In this case, the answer is somewhat complicated. The issue usually becomes one of determining whether the injured person has the right to sue the at-fault party.
The Purpose of Worker’s Compensation
The purpose of the Worker’s Compensation system is to assist injured workers outside of the civil litigation system. Generally, workers give up their right to sue in exchange for benefits through the Worker’s Compensation system. Although not all workers and employers are part of the Worker’s Compensation system, most are part of the system and are organized into “Schedule 1 Workers and Employers” and “Schedule 2 Workers and Employers.”
Schedule 1 or 2 Worker or Employer?
If you are in the course of your employment when you are involved in an accident , you need to know whether you are a Schedule 1 or 2 Worker or Employer, and whether the person who caused the accident was in the course of his/her employment and whether he/she was a Schedule 1 or 2 Worker or Employer.
In certain circumstances you will have no choice but to pursue your claim through the WSIB. This happens when both you and the other driver are both in the course of your employment and if both of you fall under the same Schedule.
You get to choose whether to pursue a claim through the WSIB system or to bring a lawsuit if one of the following circumstances apply to your accident:
- You and the other driver were both in the course of your employment, but one of you is employed by a company that falls under Schedule 1 and the other was employed by a company that falls under Schedule 2, or
- You were in the course of your employment, but the other driver was not.
If your circumstances are such that you have the choice to pursue either WSIB benefits or a lawsuit the advice of a lawyer is really important.
WSIB or Lawsuit? 3 Critical Reasons Why You Need a Lawyer
- You may have the choice about how and where to pursue your claim (i.e. through Workplace and Safety Insurance Board or in the Courts by bringing a civil lawsuit against the at-fault driver).
- You need to know which is the more appropriate forum if you do have a choice.
- You need to know whether you and the other driver meet the legal definition of “in the course of employment” at the time of the collision.
Complex Area Of Law
Depending on your circumstances, one system may be more appropriate to pursue than the other. As you can see, this is a complex area of law. If you have been involved in a car accident while at work, please contact Patricia, Santucci Personal Injury Law for a free consultation regarding your legal rights and options. We can help .
Patricia Santucci is a personal injury lawyer born and raised in Hamilton, Ontario. She holds several degrees having attended King’s College at the University of Western Ontario, McMaster University, earned a Master of Arts degree at the University of Windsor and an Ontario Teaching Degree from Teacher’s College as well as her Ontario Teaching Certificate. After graduating from the University of Alberta law school she was called to the bar in 2000. You can find Patricia on Google+ and LinkedIn or directly through this website
Roger D. Yachetti April 14, 1940 – September 16, 2018 “Carve your name on hearts, not tombstones. A legacy is etched into the minds of others and the stories they share about you.” – Shannon Alder Inspiring people lead by example. Their passion, intelligence, and leadership reflected not just through their own achievements, but also […]
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This Website is intended to provide general information about Patricia R. Santucci Law, PC, an Ontario Professional Corporation. The presentation of information through this site or use of this site does not create a lawyer and client relationship with Patricia R. Santucci Law, PC or any of its lawyers. Nothing in this site is or may be relied on as legal advice, and readers should always take individual professional advice before taking action. Do not send us case information or materials if we have not previously communicated and agreed to terms of retainer. We disclaim liability for errors or omissions in any information contained in this site.
Canada: WSIB Establishes Approach For Adjudicating Entitlement For COVID-19 Claims
As the COVID-19 pandemic continues in Canada, all levels of government have been working to reduce its adverse impacts on citizens. While, on March 17 and 23, 2020, the Ontario Government declared a state of emergency and ordered the closure of specific workplaces (such as private schools, daycares, theatres, public libraries, certain food industry businesses, and non-essential businesses), many Ontario businesses remain in operation and some workers continue to attend at the workplace. This situation has led to new issues for employers, namely: what obligations arise if a worker contracts COVID-19 and when does a worker's COVID-19 diagnosis become a compensable illness?
On March 23, 2020, the Ontario Workplace Safety and Insurance Board ("WSIB") released guidelines addressing how it will adjudicate entitlement to workers' compensation benefits for occupational COVID-19, thus providing guidance on when WSIB benefits may be available to a worker who has contracted COVID-19.
Does the Worker's COVID-19 Condition Arise Out of and In the Course of Employment?
Like with all claims, the WSIB will first assess whether the worker's condition arose out of and in the course of employment. In the context of COVID-19, this analysis is met with practical difficulty: a person infected with COVID-19 may be asymptomatic but contagious and, as a result, infect other people without knowing. This epidemiology makes it difficult for employers to determine whether a worker's COVID-19 diagnosis arises from a workplace exposure or from exposure to infected individuals outside of work.
In dealing with this issue, and consistent with the WSIB's general approach for determining entitlement for communicable disease, the WSIB will consider whether the worker faced a greater likelihood of exposure due to the nature of their employment.
The Test for Determining Initial Entitlement for COVID-19
If the worker's employment duties or requirements were a significant contributing factor in the worker contracting COVID-19, the worker's condition will be considered work-related. The worker's employment may be a significant contributing factor where it is established that:
- The nature of the worker's employment created a risk of contracting the disease to which the public at large is not normally exposed; and
- The WSIB is satisfied that the worker's COVID-19 condition has been confirmed.
In addition to general information about the work environment, work processes, job tasks, and the use of Personal Protective Equipment (PPE), the WSIB may also consider additional factors, as set out in the following chart.
Based on these factors, workers may have a greater chance at establishing initial entitlement if their co-workers were diagnosed with COVID-19 and present in the workplace. Further, employees who work in essential services that have continued to operate during the pandemic and have regular contact with members of the public and/or clients (e.g. grocery stores, hospitals, pharmacies, care facilities, etc.) may be more likely to establish compensable COVID-19.
No COVID-19 Benefit Entitlement for Asymptomatic Workers
The WSIB will not grant entitlement for workers who are free of COVID-19 symptoms, even if these workers are quarantined or sent home on a precautionary basis. This may provide relief to employers who are monitoring COVID-19 exposure in the workplace and sending workers home as a heightened precaution.
Eligibility for benefits may arise, however, if an asymptomatic worker later develops COVID-19 symptoms or illness while in quarantine or at home. As with other cases of potential occupational disease and exposures, workplace parties may also voluntarily report workplace COVID-19 exposure through the WSIB's Program for Exposure Incident Reporting program.
Our Firm continues to monitor the COVID-19 outbreak and related developments that may affect Ontario workplaces. We will provide further Insights as new information becomes available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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Workplace injury management training.
Our experienced team of paralegals are here to help you. Our course content meets the highest standard of accuracy. We pride ourselves on delivering content to you that is thorough, thoughtful and relevant. Workplace Injury Management Training is fueled by the experts at Corporate Workplace Injury Management, a WSIB consulting firm registered with the Law Society of Ontario.
For groups of 6 or more we will happily hold the training at your place of business or at the location of your choosing. For groups with less than 6 participants, please call our office for pricing. We build in-person classes as needed.
Did you know we offer customized training based on your needs? Let us build the session around what challenges you most. If you have further questions please Contact Us.
WSIB – All Inclusive Training in Five Sessions:
Gain an understanding of the overall WSIB process. Our customized WSIB training will allow attendees to manage injuries to full recovery while remaining in compliance with WSIB and minimize costs. The following is a list of training topics and course outlines.
- Employer obligations and regulations, employer’s immediate responsibilities when an incident/injury occurs.
- Types of WSIB benefits.
- When to report, why and how; Consequences of claim suppression and how to avoid; Introduction to RTW principles and obligations.
Available Dates: May 23, 2023, 9:00 am – 11:30 am Oct 12, 2023, 9:00 am – 11:30 am Jan 4, 2024, 9:00 am – 11:30 am March 7, 2024, 9:00 am – 11:30 am
- RTW principles and obligations; Recommended method, i.e., how, and when to offer modified duties; when to consider a subsequent offer of modified duties, when this should be done and why.
- Cost reduction strategies within graduated RTW plans.
- Roles and responsibilities in managing RTW challenges; scenarios and strategies to overcome RTW barriers.
- Duty to accommodate and how this impacts WSIB cases.
Available Dates: May 25, 2023, 9:00 am – 11:30 am Oct 17, 2023, 9:00 am – 11:30 am Jan 9, 2024, 9:00 am – 11:30 am March 12, 2024, 9:00 am – 11:30 am
- Injury management worksheet, case review benchmarks and tools.
- Normal recovery times and strategies to implement when normal recovery times are surpassed.
- Forms 6, 7, 8, FAF, WSIB resources, when and how to utilize.
- How a case changes once maximum medical recovery is attained and strategies to reduce costs.
- Scenarios provided.
Available Dates: May 30, 2023, 9:00 am – 11:30 am Oct 19, 2023, 9:00 am – 11:30 am Jan 11, 2024, 9:00 am – 11:30 am March 14, 2024, 9:00 am – 11:30 am
Understanding the obligation, legislation, and policy. Review presumption, threshold, and associated penalties. Review of co-operation obligation. Example scenarios.
Traumatic mental stress vs chronic mental stress. How TMS differs from CMS, examples of both. When is CMS allowed and what types of CMS does not meet the WSIB criteria (substantial stressor vs interpersonal conflicts vs high stress job vs employer decisions and actions).
Review of policy, threshold to consider a transfer of cost, transfer opportunities and challenges between two schedule one employers. Appeal process of Transfer of Cost cases. Removal of costs if member of public at fault.
Available Dates: June 1, 2023, 9:00 am – 11:30 am Oct 24, 2023, 9:00 am – 11:30 am Jan 16, 2024, 9:00 am – 11:30 am March 19, 2024, 9:00 am – 11:30 am
Appeal levels, appeal documents, appeal timelines and consequences of missed timelines. Process for employer-initiated appeals vs worker-initiated appeals and key forms.
When to request cost relief, strategy, and timing. Components of the cost relief request, i.e., evaluating severity of the accident and the degree of pre-existing condition, what percentage to request, sample scenario and submission provided.
Available Dates: June 6, 2023, 9:00 am – 11:30 am Oct 26, 2023, 9:00 am – 11:30 am Jan 18, 2024, 9:00 am – 11:30 am March 21, 2024, 9:00 am – 11:30 am
Method: remote training (Microsoft Teams). Five, 2.5 hour training sessions to cover the following course topics. Pricing: $299.00 per course or $1495.00 for all 5 courses.
Workplace injuries can often be challenging to navigate. This course will introduce Supervisors to accident reporting, thorough incident investigation, and early and safe return to work to mitigate costs associated with WSIB claims.
The training session will provide the following:
- WSIB legislation
- Effective Return to Work Tools
- Responsibilities of workplace parties in return-to-work efforts
Method: r emote training (Microsoft Teams). One, 1.5 hour training session.
Pricing: 4 participant minimum $600.00 ; additional individuals $135.00 each.
Comprehensive WSIB Training: Training Exclusively for your team! Prepare your Human Resources team, Health and Safety Professionals and Supervisors with the tools to manage workplace injuries. From Accident Investigation to Return to Work; from WSIB Reporting to mitigating Lost Time injuries, this course has everything your team needs.
Workplace injuries happen unexpectedly and your team needs to be ready to handle them. Empower your Health and Safety, Human Resources, and Operations Management teams to understand the steps to take when an employee is injured . Knowing when and how to file a WSIB claim followed by an effective and timely modified work offer means faster back-to-work programs and fewer WSIB costs.
The training sessions will provide the following:
- Accident investigation, WSIB Reporting
- Return to Work Best Practices
- Methods for minimizing claim costs
- Tools for effective claims management for complex or prolonged recovery claims
Method: r emote training (Microsoft Teams). Two, 3 hour training sessions.
Pricing: 3 participant minimum – $750 per person.
All Training Participants receive:
- Course Certificate
- Resource materials
Sheila is very knowledgeable about the subject matter. She presented the key points we requested without wasting time on material we did not require. Both our Human Resources and Health and Safety teams attended five two-hour sessions and found it very informative.
– Angela T, Lake Shore Gold, a subsidiary of Pan American Silver
After completing the WSIB Training Series with Sheila and the Workplace Injury Management Team I feel much more confident in our ability to support our employees and manage our Return to Work Program effectively and confidently. The training series started with the basics and then progressed to cover a solid range of more unique circumstances, and many of real world examples were included. I would absolutely recommend this training series to others as a place to start in the development of their Return to Work strategy or as a solid refresher. I am hopeful Sheila’s Team will offer more content and updates in the future.
– Blair M, MCI Design-Build Corporation
WSIB is complex because every workplace injury is unique. If you have a specific question we don’t cover in our course content please contact us. Our experienced team is here to help you.
Address 583 Oxford Street East, London, ON N5Y 3H9 519.601.2420
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Editorials, case summaries and association news, 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.
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Tina Nguyen obtained her Bachelor of Law from the University of Sussex in England. Prior to law school, she completed her philosophy degree at York University and paralegal diploma at Seneca College, where she also received a certificate in Alternative Dispute Resolution.
Tina has diverse litigation experience as a law clerk, having worked at both plaintiff and defence personal injury boutiques. She has also worked in corporate and securities litigation and administrative law.
Through her legal background, Tina understands the challenges clients face, due to the complex nature of the legal process, and she looks forward to assisting and advocating on their behalf.
Outside of work, Tina enjoys reading, trying new food and a competitive round of pool.
Tina is proficient in Vietnamese.
- Abreu v. Gingerich, 2020 ONSC 6797
- Baines v. Abounaja, 2023 ONSC 2078
- Moran v. Fabrizi, 2023 ONCA 21
- Madore v. Intact Insurance Company 2023 ONSC 11
- Baker v. Blue Cross, 2023 ONSC 1891
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Advancing social justice, promoting decent work
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