Workers’ Compensation Law: Some Fundamentals Introduction to Workplace Safety and Insurance Law OBA Young Lawyers Division November 25, 2013 Jack Siegel, Blaney McMurty Joel 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