Personal injury lawyers are regularly asked to provide advice on the compensation rights of clients who have been injured in motor vehicle accidents while on the job.
Clients are often surprised to learn that a worker injured in a motor vehicle accident in Ontario may be barred from claiming both statutory accident benefits from their own insurer and bringing a claim for tort damages, because the Workplace Safety and Insurance Act (WSIA) governs entitlement to benefits for workers. Even when a worker is able to elect benefits under the Statutory Accident Benefits Scedule (SABS), there are restrictions to those benefits. Advising clients on the best course of action has been further complicated with the introduction of the new SABS regime on Sept.1,2010.
Under s.59 of the SABS, an insurer is not required to pay benefits where the insured person is entitled, as a result of that accident, to receive benefits under any worker’s compensation plan. An injured victim can opt out of workplace benefits, but only if the election is not made primarily to claim SABS benefits.
One of the main reasons an injured worker would choose to opt out of WSIA benefits is because he or she wishes to pursue a tort action. The SABS does not seem to require the insured to actually commence a tort action to receive or continue to receive benefits under the SABS.
As usual, there are many things to consider, when deciding whether to pursue litigation, that have nothing to do with the actual right to bring an action.
For more tips on this type of action, read the rest of this The Lawyer’s Weekly article.