Workers’ Compensation Law: Some Fundamentals

Introduction to Workplace Safety and Insurance LawOBA Young Lawyers DivisionNovember 25, 2013

Jack Siegel, Blaney McMurtyJoel Schwartz, IAVGO Community Legal Clinic

History of workers’ compensation

Who is covered?

Employers that: are in industries listed in Schedules 1 & 2

of the Regs; or have opted in

Employees of those employers

Who isn’t covered?

Approx. 1.8 million employees 28% of Ontario employers

Banks, insurance companies, law firms, private schools, private

nursing homes and many more

Which employees are covered?

“Workers” “a person who has entered into or is

employed under a contract of service or apprenticeship”

inclusions in definition of worker (s.2, WSIA)

now includes independent operators and sole proprietors in construction industry

When are workers entitled to benefits?

Personal injury by accident “arising out of and in the course of” employment

Accident

Accident includes: chance event disablement (gradual onset) “wilful and intentional” act of someone

else impairment from occupational disease

Arising out of and in the course of

“Arising out of” = caused by significant contributing

factor standard “In the course of” = during

time, place, and activity

Mental Stress Exclusion

Entitlement for mental stress only where “acute reaction to sudden & unexpected traumatic event”

No entitlement where event is employment related decision or action

Entitlement for mental health as a secondary condition

Secondary Conditions

Secondary conditions caused by injury mental health or chronic pain disorder same standard of causation

What is not covered?

Right to sue

A few professionalism issues Remember who your client is

Injured worker, survivor, substitute decision maker, or employer

Duty of confidentiality (Rule 2.04) Only disclose information to client, unless

permission (better to have that in writing) Only take instructions from that person (Jack anything to add from employer

perspective?)

Retainer agreement

Have one! Include: Scope Fees and disbursements Circumstances where you may withdraw

Use plain language Review with client

Disabled Clients Duty, professional obligation, and moral

imperative to accommodate Rule 2.02(6): “as far as reasonably

possible”, maintain a normal lawyer-client relationship

Rule 5.04(2) “ensure no-one is denied or receives inferior service” based on grounds including disability

Respect the person’s dignity Be aware of issues of capacity

Competence

Rule 2.01 IMO: often breached in workers’

compensation Specialized and complex field Huge stakes Are you competent? If not, become or refer