Ontario's Workers Compensation Act R.S.O. 1990 W 11, its Regulations, and Guidelines set out the entitlements of a worker who becomes injured, ill or dies in the course of employment. Pursuant to the Act, an injured worker is not entitled to bring an action against his or her employer, but instead is obliged to bring a claim under the Act in order to obtain compensation for a work-related injury. Further, an injured worker need not prove employer negligence and, unlike the regime of civil litigation, a worker will not be denied compensation due to an employers inability to pay. The following is only a brief overview of some Workers Compensation issues and is definitely not exhaustive.
(i) Who is eligible for workers compensation benefits?
Compensation under the Act is available to all workers, rather than the narrower concept of employee. For example, section 1(1) of the Act, which sets out that a worker includes a person who has entered into or is employed under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or other wise demonstrates a much broader scope inclusion than mere employees. It is also possible to be deemed a worker pursuant to section 13 of the Act.
In addition, a worker must have suffered the injury, illness or death arising out of or in the course of employment. In assessing whether an injury arose out of or in the course of employment, the place, time and nature of the workers activities will be considered. According to the Workers Compensation Boards Operational Policy, Document No. 03-01-02, if a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment. In most cases, therefore, where an injury has occurred during working hours, at the premises of the employer, the determination that an injury has occurred out of or in the course of employment will not be difficult.
It should be noted that even if a worker otherwise qualifies for benefits under the Act, benefits can be denied under section 4 (7) due to serious or wilful misconduct.
(ii) Amount of Benefits
(a) Wage Loss
Where a worker is unable to resume his or her employment duties owing to a temporary total disability, the worker is entitled to 90% of his or her net average earnings, as calculated immediately prior to the injury. However, according to section 37(2) (b) of the Act benefits can be terminated where the worker fails to cooperate in or is not available for a medical or vocational rehabilitation program. . . or fails to accept or is not available for employment which is available and which in the opinion of the Board is suitable.
(b) Other Benefits
A claimant may also be eligible for other compensation
including medical expenses, Non Economic Loss (N.E.L), and Future Economic
Loss (F.E.L.). While a N.E.L. award seeks to compensate a claimant for the
impairment itself, without regard to future loss of earnings, a F.E.L. award
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