WSIB – Avoiding mistakes in your claim that could have long-term effects

My role as a Worker’s Compensation lawyer is to represent injured people who have had their WSIB benefits denied or terminated in some fashion. However, by the time clients come to me, it is often well after the work accident and steps may have been taken by the client that will be difficult to overcome during the appeal process.

So before you find yourself in a position where you need legal representation, there are steps you can take to minimize later problems, and perhaps receive the benefits to which you are entitled without the need of having to pursue any appeals.

The WSIB requires you as a worker to fully cooperate with return to work efforts with your employer including performing modified duties. Indeed, the employer is obligated by law to try to accommodate any restrictions related to your work injury.

Some people think that until they are fully recovered, they are not obligated to make any effort to return to the workforce. Unfortunately, this is not the case, and if you refuse to try to perform the modified duties, this will be seen as lack of cooperation and a justification to terminate any loss of earning benefits. Appeal adjudicators are not going to be sympathetic to your case. It is essential to always do your best to cooperate in this process. Often the best evidence you can have to support an inability to work comes from good solid attempts to try the work and see what happens.

Others think because their doctor gave them a note to stay off work, this should be enough to allow them to avoid return to work efforts. Doctors often will write notes for the patients that may be one or two sentences long but provide no information as to why the person is unable to even try modified work.  WSIB is not bound by these notes and will often give no weight to them. Appeal adjudicators similarly will not be impressed and unlikely to consider these notes as a justification for not working

If there is a good reason why you should not try any work your doctors and therapists need to be very specific about what your restrictions are, the diagnosis and prognosis for recovery etc.

You may try to do the modified duties but find your pain increases and perhaps the tasks are very difficult. Rather than just deciding on your own to stop you should discuss it with the WSIB case manager as to what aspects of the modified duties you cannot perform and as well make sure you talk to your medical professionals about the exact duties you are required to perform so that they can comment on the suitability of the employment.

Another problem that comes up is when an employer tries to put you on duties beyond your restrictions that may not be part of the original modified job description. Again, alert the WSIB case manager and your health practitioners. Fighting a case on the basis that a job is unsuitable can be difficult unless you have good evidence to support your position.

I have seen a few cases where clients on their own have submitted resignation letters to their employers. This is usually not a good idea. The WSIB will likely take the position that any loss of earnings are due to your own decision to resign, and not because the work duties are unsuitable. As well, you will not be entitled to any termination pay or severance pay that might otherwise be payable under the Employment Standards Act had the employer terminated your employment rather than you quitting your job. You probably will not be entitled to Employment Insurance benefits either. Even if you feel you can never return to that particular place of employment due to your injuries, let others make that decision regarding your employment status.

If your employer does terminate your employment, let WSIB know right away and see if they will offer “return to work” assistance and reinstate your loss of earning benefits. Even if they deny that, this is an issue that can be appealed. You should continue to make your best efforts to look for work within your restrictions and capabilities- if you ultimately succeed in your appeal which may take a long time- your retroactive benefits can be drastically reduced or eliminated if you have made no efforts at all to rehabilitate and try to return to some form of work.

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