The Board Has Not Paid at All
Background
For initial entitlement/accident recognition, there must be:
- an employer who has or must have WSIB coverage
- a worker
- a work-related personal injury (injury includes disablement or disease)
- arising out of and in the course of employment.
Usually, if the Board is not paying from the outset of the claim, it is because the Board is:
- not recognizing that there was an “accident”
- not recognizing the injury
- not recognizing the recurrence of an injury
- not recognizing worker/employer relationship
- not granting an extension of time to file the claim.
You need to supply information as to circumstances of the employment, what happened, when it happened, what was injured, what was reported and to whom, the reasons for any delays in reporting, any discrepancies in what body part was hurt etc.
Issues and Answers
1. The Board won't pay me because they say I did not have an accident.
Usually this is because:
- there is some discrepancy in the dates or other information on the various forms (eg. the worker says he was injured on November 15 but he saw the doctor on October 30), or
- there was some delay in reporting the injury to the employer or in seeking medical treatment.
You need to know:
- timeliness and consistency of reporting (to the employer, to witnesses, to the doctor) is important
- the worker must be able to explain any discrepancies in dates of reporting or in seeking medical attention – is there anyone else that can corroborate the worker’s version of events?
- Getting statements from other “witnesses” is important at the outset – delay in asking means memories may fade/become more unreliable
2. The Board won’t pay because they say I didn’t have an injury.
Usually this is because:
- the injury claimed does not match what was described as “the accident” (the worker claims an arm injury but there was no mention of “arms” in the initial reports to the employer or doctor), or
- the medical information is not sufficient to “prove” that there was an injury, or
- the condition came on over time and the Board does not feel that the work process could have caused such a condition
You need to know:
- definition of accident includes specific incidents and disablement (something that comes on gradually over time)
- compatibility of diagnosis to accident history (ie. the “mechanism of injury”) is crucial to prove causation
- likely will need more medical evidence, provided that the doctors agree that it is likely that the injury was caused from the “accident” as described by the injured worker
- it is not enough for the doctor to say the injury is work-related – the doctor must be willing to explain HOW the injury is work-related
3. I hurt my shoulder at work a long time ago and had filed a claim for the few weeks I was off work. I continued to have a few problems over the last few years. Recently I had to stop work again because of my shoulder but the Board won’t pay.
Usually this is because:
- the Board thinks that there is no link between the two events and that there has been no “new injury”; or
- the worker’s claim is past the final review date.
You need to know:
- claiming a recurrence restarts the old claim
- could make new accident claim if there was something significant that caused the problem again
- for recurrence, need medical compatibility (ie. medical opinion that what is wrong now is what was wrong then) or combination of medical compatibility and continuity of complaint (doctor visits, modification of work , complaints to co-workers in the interval) plus the absence of significant new injury
- if is a recurrence, lost time benefits can be paid at the higher of either the pre-injury earnings escalated or the most recent earnings (subject to the maximum earnings ceiling)
- where the worker has a pension from a pre-1990 injury, to get a recurrence recognized, must show that worse than at pension examination (see question 20)
- if injured between 1990-1998, can’t get back on biweekly benefits if worker has a Future Economic Loss award (see question 21)
- other factors to consider - can't get any increase in Loss of Earnings if recurrence happens after final review unless the recurrence resulted in an permanent deterioration (ie. results in an increase in NEL or in being granted an initial NEL or in being granted a NEL redetermination) or in a significant temporary deterioration in the compensable injury.
4. The Board won’t pay because they say I was not at work.
Usually this is because:
- the worker was not a “worker” or was not working for an employer that was covered by the Act, or
- there is some doubt that the worker’s injury happened in the course of employment (eg. the worker tells co-workers that they hurt their back on the weekend on an ATV, but later that day claim to have had a back injury at work).
You need to know:
- get details of work relationship and ask for a ruling that really was a “worker”, if denied because not considered to be a worker
- gather evidence that supports the fact that happened at work (eg. details of work processes; any medical explanation for the work-relatedness
- "arising out of and in the course of employment" - if you can prove one side of this phrase, the presumption is that the other side of the phrase is also present
- the “presumption” does not apply in the case of disablement (ie. where the condition comes on gradually over time) – the worker must prove both sides of the phrase
- another way to look at this is whether the work is a significant contributing factor in the development of the condition
- there are policies to cover specific circumstances (accidents happening on/off employer's premises, while traveling in the course of employment, fighting etc.) that can be found on the WSIB website.
5. I hurt myself about 8 months ago at work but I never filed a claim at the time, because I was not losing any time from work. The Board says it is too late to claim now.
Usually this is because:
- the worker missed the deadline to file the claim, and
- the worker did not request an extension of time to claim.
You need to know:
- as of January 1, 1998, there is a general time limit of 6 months from the date of accident
- for disablement or occupational disease claims, the deadline is six months from the date worker finds out that the condition is work-related
- must file actual forms in order to start claim (Form 6, Worker Report of Injury: or sign Form 7, Employer Report of Injury)
- not enough to just call the Board – must file the actual form
- is possible to ask for extension of time to file, but will have to provide an explanation of why claim is late
- if extension of time to file is denied, must appeal that decision
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