WORKERS' COMPENSATION

Contents of this article:

How Did Workers' Compensation Get Started?

In order to understand how workers' compensation got started, we need to see what workers were entitled to before workers' compensation.

The simple answer is, not much.

During the last century, many workers were killed or badly injured in mines, factories, in the forests, and in fishing. As well, many more workers died from diseases caused by their work. One example of these diseases is silicosis. Silicosis is a lung disease caused by breathing in dust in mines or foundries.

There were few laws to protect workers' health and safety. Workers with disabilities were usually fired when they weren't able to do the job they were hired to do. The usual result of major injuries or fatalities was life-long poverty for workers or their families. In theory, injured workers and the families of workers who were killed had the right to sue their employer to try to get enough money to live on.

In practice, suing employers was very hard. Most workers could not afford the cost of the lawyers that would let them take their employers to court. Even if they were able to go to court, the courts in those days were unfriendly to workers.

In lawsuits over workplace accidents, employers were able to use three legal defences to defeat the claims of workers. These defences were:

Pressure for Change

The injustices of the system, unsafe working conditions, low wages, and long working hours led to the expansion of the Canadian union movement. Our movement fought to improve laws to protect workers.

We fought for health and safety laws to protect workers and for workers' compensation so that workers would have an income and medical assistance if they were hurt at work.

Employers were of two minds. While they resisted the development of strong health and safety laws, they saw the advantage of workers' compensation. Such a system would protect them from the occasional successful lawsuit. Remember in the last century and in the early part of this century, young children often worked in factories, mines, and in the forest and fishing industries. Maimed children (or their families if the children were killed at work), had a chance of success in court against their employers if the trial was heard by a jury.

The uncertainty of the possibility of a successful lawsuit persuaded the employers in Ontario that they would be better off paying workers' compensation premiums.

Since Ontario was the industrial heartland of Canada, it is not surprising that workers' compensation began there. The pattern had been set in Germany some 30 years before and had been copied in some American states.

In 1912 the Ontario government commissioned Sir William Meredith to study ways to deal with workplace-related disabilities and deaths. In his Final Report in 1914, Meredith proposed that a workers' compensation system be set up in Ontario. He balanced the demands of the employers and the labour movement. For workers, the new system was a significant improvement over the past.

Meredith proposed a compensation system based upon certain principles, most of which still apply today. The Ontario workers' compensation system was copied in the rest of the Canadian provinces either before they entered Confederation or after it.

Meredith Principles

Security of Payment - The worker was to be guaranteed compensation for as long as earnings were impaired.

No Fault System - It would not be necessary to prove negligence in order to receive benefits. Contributory negligence would not prevent workers from receiving benefits.

Employer Funded Collective Liability - The vast majority of employers would have to contribute to a fund from which benefits would be paid. This protected small firms from the potentially high costs of serious accidents.

Administration by an Independent Agency - This was the beginning of the Workers' Compensation Boards or Commissions. Workers were to be spared the expense and delay of going to court.

Injured Workers Could Not Sue Their Employers - In exchange for the establishment of workers' compensation, workers gave up their right to sue their employers. This is often referred to as the historic trade-off. This means that workers' compensation is not welfare; workers' compensation is a right.

The 1980s and 1990s

Within the last decade and a half, employer pressure to erode Canada's social programs has increased. While the employers as corporations and as individuals have been successful in paying a smaller and smaller share of taxes, taxes on working people have increased. In order to avoid paying even more taxes, businesses interests lobby governments to cut back social programs which we as Canadians believed we had a right to expect.

Workers' compensation is no exception. The employer lobby has been successful in cutting back benefits in the provinces of Manitoba, New Brunswick, Newfoundland, Nova Scotia, Prince Edward Island, and Ontario. They are shrill in their call for cutbacks in other provinces. We in the labour movement must resist.

Canadian Workers' Compensation is Inexpensive

In comparison to other workers' compensation systems such as in the United States, Canadian employers are able to buy cheap workers' compensation insurance. The reason for this is because the Canadian workers' compensation system is publicly administered. In the U.S., most workers' compensation coverage is private. Lawyers benefit from the U.S. adversarial court based system where workers must go if they want to appeal a claim disallowal.

Even though employers pay more money for assessments in the U.S., American workers receive a much lower benefit level than Canadian workers. Private insurance companies and lawyers rake off the difference.

Universal Disability

The agenda of the union movement has always been to fight for progress, for improvements to the lives of working people.

Is it possible to fight for improvements to workers' compensation? Can we hope to make things better for workers with disabilities? Our union believes we can.

Our program for progressive change is to abolish workers' compensation and replace it with something better, a universal disability plan that would provide income and other benefits to people with disabilities, regardless of the cause of their disability.

How to Make A Workers' Compensation Claim

The following information will help you to make a workers' compensation claim for yourself or to help your fellow workers establish a claim:

I was just injured on the job. What do I do now?

Report every injury to your employer and to the first aid attendant, no matter how minor you may think it is. Make sure that your employer and the first aid attendant writes down everything you say about your accident. Keep notes about the report you make. This is very important. If you don't report your injury right away, it might be hard, even impossible, to prove later that it happened at work.

If you go to a doctor, your employer must report your injury to the Workers' Compensation Board (WCB).

A work-related injury can be something that happens over time. For example, you might think it's normal to have back pain or wrist pain because you have it all the time. You might not connect your pain with your job because you didn't have an "accident". But in fact, your back pain could be caused by heavy or awkward lifting at work. Your wrist pain could be caused by repetitive motion. You therefore should apply for workers' compensation for these types of injuries.

Who do I report my injury to at work?

Report to your supervisor and the first aid attendant if you are injured at work. If you cannot report right away, report before the end of your shift. Get the names of any of your co-workers who saw you get hurt. If no one saw you get hurt, make sure you tell someone about it right away.

Do I have to be treated by the company doctor?

No. You have the right to choose the doctor you want. You do not have to be treated by the company doctor. However, if the WCB tells you to see one of their doctors, you have to go or you will be cut off benefits. Make sure you see your doctor regularly, every couple of weeks or so, or you may be cut off WCB benefits.

What should I do after I report my injury to my employer?

First, go to a doctor. See your family doctor, or a doctor at your local hospital or community health clinic.

There will be a number of forms that you will have to deal with after you report your injury to your employer.

Doctor's First Report, Form 8

Get your doctor to send a Form 8 to the WCB. (Your doctor probably has a supply of these forms.) Make sure your doctor has all the details of your accident the way you say it happened. Make sure your doctor makes a note of each part of you that was injured. For example, if you fell and broke your arm, you might also have bruised many parts of your body and twisted your back.

Your doctor probably doesn't know much about your workplace or about the duties of your job. Your doctor needs to know as much as possible about what you were doing when you got hurt. Try to remember things like distances, the size and shape of objects and how heavy they were, the types of chemicals, the noise, and the temperature. Make sure your doctor writes down everything you tell him or her.

It's not enough for your doctor to simply say that your injury is work-related. Your doctor must explain how the injury happened and in what way it is work-related.

Make sure your doctor sends in the Form 8 promptly. You will not be paid by the WCB until they see this form. Make sure your doctor sends in the follow up reports, Form 11s, promptly as well. Your cheques will stop if the WCB doesn't get regular reports from your doctor.

Worker's Report of Injury, Form 6

If your employer has reported that you lost time from work because of your injury, the WCB will send you a Form 6. You will have to fill it out and return it. If you have trouble filling in this form, get help from your union WCB or benefit representative.

If you telephone the WCB, they may send you the form. Your union WCB or benefit rep may have a Form 6 for you to fill out or the company may have one for you to fill out. Even if you don't have a Form 6 you could write to them first in order to speed things up. Given them your name, address, social insurance number, and your date of birth. Describe your accident. Give information about the job you were doing at the time you were hurt. Give the names of anyone who saw you get hurt. Give as much detail as possible about what parts of your body were hurt. You will still have to fill in a Form 6 but contacting the WCB early may see your claim accepted sooner.

What should I say in my report to the WCB?

Whether you wait for the WCB to send you a Form 6, or you write to them before you get it, you will have to write a report of your accident. Give a lot of detail.

For example, don't just say "I fell and hurt myself". Say, "I was walking through the plant in the assembly division. I stepped in some oil that was on the floor. My right leg went forward and I lost my balance. I fell backwards. I hit my shoulder on the machine. I hurt my right shoulder on the machine. When I landed on the floor, I hurt my right wrist, my neck, and my right hip."

Keep a photocopy of the Form 6. Keep notes on all telephone calls you may have with anyone from the WCB. They will. Keep copies of all letters you get from the WCB.

Does my employer have to make a report?

Yes. Your employer has to report any injury that needs more than very minor first aid to the WCB. Once you report your accident, your employer has 3 business days to file a report. This report is called the Employer's Report of Accident, Form 7. This form is important to you because it gives the WCB information that affects your claim. It will affect the amount of money you might get in WCB benefits. It also gives the WCB an idea whether or not your employer will be fighting your claim.

Ask your employer for a copy of the Form 7. If your employer will not give it to you, get it from the WCB or through your union.

What should I look for on the Form 7?

Check to make sure that your employer has correctly reported the amount of money you make. Since this report is what the WCB will use to decide how much money they will give you in benefits, it is important that it is right.

Once your employer has completed the Form 7, it should include information like:

- hourly wage or salary
- shift premiums
- overtime pay
- lead hand pay
- travel allowances
- living allowances
- money value of any benefits package - drug plans, dental plans, or pension plans, and
- anything else that can be estimated in terms of money. For example, every year your employer gives everyone a Christmas turkey.

Check that your employer has correctly reported:

- your income tax net claim code

- the details of your accident and the parts of you that were hurt

Write to the WCB and let them know if:

- there is a mistake on the form

- your employer hasn't included some of the things mentioned here on the form

- your co-workers get any retroactive pay raises after you were injured (this may or may not be taken into account)

What happens when the WCB gets a report of my injury?

Once the WCB gets a Form 6, a Form 7, or a Form 8, they will open a claim file on you. They will give you a claim number. Use this claim number whenever you contact them. Getting a claim number does not mean that you will get benefits.

Every time you talk to someone at the WCB, that person will make a note of the conversation and put the note in your file. Every time you write to the WCB or they write to you, a copy of the letter will go into your file. Medical reports and other papers relating to your claim will also be in your file. If you need to make an appeal, your union rep will need to get a copy of this file.

What do I do if my employer doesn't file a report?

You should file your report anyway. Make sure your doctor sends in his or her report. The WCB can begin to look at your claim without your employer's report.

If your employer doesn't file their form within 3 business days, they may be fined.

I was still able to work.
Can I get benefits from the WCB?

Yes. There are two types of WCB claims. Lost time claims are for payment of lost wages and medical expenses. No lost time claims cover medical expenses. Medical expenses can be:

You have to pay these expenses and then ask the WCB for the money back. Get receipts for everything. Keep track of your mileage. Send these to the WCB. Keep copies of everything, in case the WCB loses something.

Make sure your physiotherapist or chiropractor sends in forms to the WCB so they know you've gone for treatment.

What happens if the WCB takes a long time to decide on my claim? Where can I get money to live on until then?

There are a number of places that you can go to for help while you are waiting for your WCB claim to be decided. Apply for everything. They'll let you know if you are not eligible.

Welfare.

If you apply for these other kinds of benefits, you must let them know that you feel your injury or illness is work related and that you are applying for WCB benefits.

They will probably tell you to sign an assignment of benefits or subrogation of benefits form. This form is a promise to pay back the money you receive from them once you get it from WCB.

Is there a time limit on making a WCB claim?

It is best to make your workers' compensation claim as soon as possible after your accident. In some provinces you must apply within 6 months.

What should I do if my employer tries to get me to take sick pay instead of making a WCB claim?

Do not let your employer talk you out of making a WCB claim. If your injury is related to your work, you should claim WCB benefits. WCB benefits are often higher than benefits under other plans. Also, if your injury reoccurs, you are far better off with a WCB claim established in the first place.

What else must my employer do?

In most provinces, the law says your employer must:

Can I appeal a decision to disallow my claim?

Yes. Contact your CAW WCB or benefit rep for assistance in processing your appeal.

Where can I get help?

Your workplace should have a CAW WCB or benefit rep to assist you. If not, call your local union who should have someone to help you. The National Union provides training to workplace and local union WCB reps to learn how to help members with WCB problems.

(Much of the information in this section was produced by Community Legal Education Ontario.)

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