A spinal cord injury is one of the most serious and frightening workplace injuries. Spinal cord injuries can have a lasting and significant impact on an injured person, resulting in diminished quality of life, chronic pain, and permanent physical limitations. Severe damage to the spinal cord can cause catastrophic injuries including paralysis, coma, or death.
You need financial compensation following a spinal cord injury
If you have suffered a spinal injury in the workplace, you need all the support you can get. Spinal cord injuries usually require extensive—and expensive—rehabilitation and treatments, and in some cases, lifelong medical care. Financial pressure builds quickly when you are out of work due to injury. You are almost certainly wondering what compensation you’re entitled to and how to go about getting it.
There are two options for obtaining compensation following a workplace injury: workers’ compensation claims and third-party lawsuits. Injured workers are often surprised to learn that they aren’t entitled to both. In today’s blog post, we’ll discuss how to determine whether you have a claim for workers’ compensation benefits or grounds for a third-party lawsuit.
Third-party lawsuits – a.k.a. civil suits/tort claims
Generally speaking, if you are hurt by someone else’s fault or negligence, you are entitled to bring a personal injury lawsuit against the wrongdoer to obtain compensation. In a third-party lawsuit, you can claim for damages including pain and suffering, future loss of earnings, out-of-pocket expenses, and more. If you are injured in a motor vehicle accident, you can also claim for no-fault accident benefits, regardless of who caused the crash.
To win a personal injury lawsuit, the burden is on you as the injured claimant to prove several key elements, including that the wrongdoer owed you a duty of care, that the wrongdoer’s fault or negligence caused the accident, and that the accident caused your injuries. You’re required to prove each element on a balance of probabilities.
Workers' compensation claims in Ontario
A workers’ compensation claim is very different from a personal injury lawsuit. In Ontario, workplace insurance is governed by the Workplace Safety and Insurance Act, 1997 (“WSIA”), which creates a no-fault system founded on collective liability insurance principles. What that means is that assuming your employer is covered by the WSIA, and that you are injured in the course of your employment, you are entitled to worker’s compensation benefits without needing to prove fault, so long as the injury is work-related.
Why can’t an injured worker make both claims against their employer?
The no-fault system created by the WSIA is based on a trade-off of rights. A worker hurt in the course of employment has easier access to benefits without having to prove fault. They don’t have to sue their employer to get WSIB benefits and in fact, there is no right to sue an WSIA-covered employer (except in limited circumstances, discussed below). This eliminates arguments over responsibility or liability for workplace injuries, instead focusing on compensation.
When can an injured worker bring a personal injury lawsuit?
In most situations, a worker’s right to bring a personal injury claim against their employer is taken away by the WSIA. However, there are circumstances where an injured worker may have a right to bring a personal injury lawsuit. For example, an injured worker may be able to sue their employer if their employer is one of the limited class of employers not required to be covered by the WSIA (e.g., a federally regulated employer such as a bank or airline), provided the worker is injured in the course of employment without fault on his or her part.
An injured worker also has the right to bring a lawsuit against a negligent third party (i.e., someone other than the worker or the worker’s employer). Here is an example: an employee driving a delivery van for work sustains a spinal cord injury as a result of the van being struck by a vehicle operated by a person out running personal errands; the worker can sue the other driver. However—and this is important—the injured worker in that situation has the right to choose whether to make a WSIB benefits claim or pursue a third-party lawsuit.
What if the person who caused the injury was also working at the time?
This is where it gets complicated. Legal rights will depend on the facts and the type of employment involved. WSIA’s Regulations contain two categories of employers: “Schedule 1” which covers most classes of industry (e.g., construction, mining, agriculture, service industries, manufacturing) and “Schedule 2” which includes, among other things, organizations funded by public funds.
A Schedule 1 worker can never sue a Schedule 1 employer or another Schedule 1 worker because that right is removed by the WSIA. However, a Schedule 1 worker injured by a Schedule 2 worker, a self-employed person, an independent contractor, or a worker whose employer is not covered by WSIB can choose between WSIB benefits and a lawsuit against the negligent third party. A Schedule 2 worker injured on the job can sue anyone other than their own Schedule 2 employer and workers of the same Schedule 2 employer.
Determining whether to make a WSIB claim or start a lawsuit
The determination depends on many factors, including who was at fault for the accident that caused your spinal cord injury, how the accident occurred, and who was involved. In situations where you have a choice, you must weigh the benefits and drawbacks of each type of claim. Advantages to bringing a lawsuit include that it allows claims for different types of damages and does not have a cap on damages for future economic damages.
This area of law is highly technical. Your best bet is to speak with an experienced spinal cord injury lawyer, who can explain your options and help you make a wise decision. Note that if your case is one in which you can elect to claim WSIB benefits or commence a third party lawsuit, you must make the election within three months after the accident occurs.
Get Trusted Advice from an Experienced Spinal Cord Injury Lawyer
Oshawa lawyers at Kelly Greenway Bruce can help if you suffered a spinal cord injury at work and want to obtain financial compensation.
We understand that spinal cord injuries come with many physical, emotional, and financial consequences. That's why we'll fight tirelessly to ensure you get the compensation you deserve.
We welcome you to reach out to us at our offices in Lindsay or Oshawa. An experienced spinal cord injury lawyer at Kelly Greenway Bruce can analyze your case, explain your legal rights and options, and help you navigate the process to maximize the compensation you receive. Contact us at today to book a free case evaluation.
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