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Workers’ Compensation Law: Some Fundamentals

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:

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Workers’ Compensation Law: Some Fundamentals

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  1. 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

  2. History of workers’ compensation

  3. Who is covered? Employers that: • are in industries listed in Schedules 1 & 2 of the Regs; or • have opted in Employees of those employers

  4. 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

  5. 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

  6. When are workers entitled to benefits? Personal injury by accident “arising out of and in the course of” employment

  7. Accident • Accident includes: • chance event • disablement (gradual onset) • “wilful and intentional” act of someone else • impairment from occupational disease

  8. 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

  9. 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

  10. Secondary Conditions • Secondary conditions • caused by injury • mental health or chronic pain disorder • same standard of causation

  11. What is not covered?

  12. Right to sue

  13. 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?)

  14. Retainer agreement • Have one! Include: • Scope • Fees and disbursements • Circumstances where you may withdraw • Use plain language • Review with client

  15. 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

  16. Competence • Rule 2.01 • IMO: often breached in workers’ compensation • Specialized and complex field • Huge stakes • Are you competent? • If not, become or refer

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