Disclaimer: This content is provided for general informational and educational purposes only and is not a substitute for professional legal advice nor should be relied on as such.
Traumatic brain injury (TBI), whether caused by an accident at the workplace or not, can lead to debilitating long-term symptoms. Patients may experience dizziness, memory loss, headaches, fatigue, and mental health problems, such as depression.1 With some of these symptoms having the potential to persist long-term, patients may find that they are unable to return to work shortly after the accident.
While focused on recovery, patients may find it difficult to gauge what their legal rights are, in terms of receiving adequate benefits, income replacement, time off from work, and a proper transition back into the workforce.
To make this stressful process a little easier, we have outlined key steps to take after a TBI. Whether it occurred on the job or not, ensure you are aware of your legal rights in Canada.
If hurt on the job:
- Go over your symptoms with a healthcare professional
Immediately after experiencing an accident at work, you should have your injuries and symptoms assessed by a medical professional. Neurological injuries pose a unique issue with insurance companies, as MRI and CT scans may indicate no physical damage, even though you are experiencing debilitating neurological issues2. Due to these complications, you should work closely with a healthcare professional to ensure proper documentation occurs. This documentation may be vital if a legal claim needs to be filed at a later date.3
If a healthcare professional can confirm that a TBI has left you unable to work, you will be able to present this documentation to employers and other legal boards as proof of entitlement to time off work and financial reimbursement for lost wages.4
- Check your employer’s healthcare insurance benefits plan & file your claim
Upon receiving confirmation from a healthcare professional that your TBI is sufficient enough to require further ongoing treatment, it is recommended you act fast and look through your employer’s healthcare insurance benefits.
In Canada, employees have six months from the accident to file claims under an employer’s benefits package.5 If ongoing physiotherapy, chiropractor services or neurological treatment is required, you may be eligible to subsidize costs through your employer’s benefits plan. However, it should be noted that in Canada, the claim amount cannot exceed the policy value and it must be proved that the TBI was not caused by employee negligence.6
If any of these limitations prevent you from using your employer’s benefits to fund ongoing treatment, the next suitable option may be to file a claim with WSIB.
- Report your injury to your employer and submit a WSIB claim
Most workplaces in Canada are covered by WSIB, which states employees cannot sue their employer for negligence in the case of an accident. Luckily, you can file an injury claim with WSIB, ensuring you receive adequate financial compensation for lost wages, medical bills, as well as pain and suffering.7
Under WSIB regulation, you have six months from the date of official diagnosis or injury to file a WSIB claim and every employee who has been injured on the job should report their TBI, even if their employer states they are not covered.8 Regardless of whether your employer states that you are not covered by WSIB, it is better to file a claim for compensation, just in case your case is successful.
In the instance where you may not be covered by WSIB, it is recommended you seek counsel from a personal injury lawyer, as some workplaces may ask the injured employee to sign a waiver, preventing them from suing.9 While not against the law, this tactic can leave employees without adequate compensation and potentially unemployed after recovering from their TBI.
- Accept nothing less than worker’s compensation
Before receiving approval of your WSIB claim, your employer may try to convince you that sick pay is a sufficient substitute for worker’s compensation and advise you to sign a waiver, agreeing to this form of settlement.10 While sick pay is sufficient for short-term illnesses that require only a few days off from work, this is not a viable solution for TBI patients.
While waiting for a WSIB claim to be approved can be daunting, especially when your employer is advising against it, it is the correct legal course of action after a TBI accident.
- If your WSIB claim is rejected — appeal
If your WSIB claim was rejected, it could be due to a few reasons. The most common reason is the failure to provide sufficient evidence that you were hurt while on the job.11 For example, insufficient documentation from a medical professional can make it difficult for WSIB to gauge whether this injury occurred at work or if it is a long-term injury that occurred at a previous date and outside the workplace.
Another reason for a declined claim could be that WSIB views you as not being injured enough to require compensation. In this case, medical professionals may have deemed you capable of working, stated your injuries did not lead to prolonged impairment, or you were still undiagnosed with a TBI at the time the claim was filed.12
Even if your claim has been rejected, it can always be appealed to WSIB. Both employers and employees have the right to appeal a WSIB decision they feel is incorrect through the Appeals Services Division, or with the Workplace Safety and Insurance Tribunal.13 If you are unsure how to begin the appeal process or want some guidance when filing paperwork, then it might be time to contact a legal representative.14
- You are entitled to a plan of transitioning back to work
If the WSIB claim was approved, you are able to take up to six months after the accident to recover.15 During this time, you will continue to receive financial compensation.
Once you feel ready to get back to work, your employer is legally required to accommodate any needs or concerns moving forward, as well as ease you back into the workplace.16 As Canadian law prohibits employer discrimination and harassment of those with medical needs in the workplace, your employer must ensure you are treated fairly and all of your needs are being accommodated.17
If hurt outside of the workplace:
- Go over your symptoms with a healthcare professional
Even when a TBI-induced accident occurs outside of the workplace, those who are injured must seek out medical advice immediately and receive official documentation on the extent of injuries and ongoing symptoms.18 If it is determined that you are unable to return to work due to a TBI and must recover at home, this documentation will need to be presented to your employer and insurance company when filing claims.
- Inform employer & check your employer’s healthcare insurance benefits plan
As soon as your TBI is deemed serious enough to remain home from work, you must let your workplace know that you are unable to work for an extended period of time. Ultimately, this will lead to a loss of income while you recover.
If your TBI occurred outside the workplace, you will not be able to claim compensation through WSIB. However, Workplace Group Benefits, Federal, Provincial, Territorial, Municipal, private benefits, or other income replacement programs may be available to provide financial security during this difficult time.19
It is recommended that employees reach out to their supervisor or Human Resources department to understand how much of their treatment the company’s group benefits insurance will cover. This coverage could include short-term or long-term disability, or an Employee Assistance Program (EAP).20 If the health insurance plan will not be sufficient, then further research will need to be done into what regional benefits or income support programs you qualify for.
- Check if your workplace is federally, provincially or territorially governed
With a quick Google search, you can easily discover whether your employer is federally, provincially, or territorially governed. Different governing bodies mean different human rights laws that protect injured employees’ rights.
If an employer is federally governed, that means they are governed by the Canadian Human Rights Act, while provincially or territorially governed companies are overseen by the Provincial Human Rights Codes or Acts.21 Both levels of governance focus on enforcing human rights and discrimination protection for employees, ensuring employers are accommodating their employees, regardless of injury, or how a TBI may affect your ability to work.
- Discuss a back-to-work and workplace accommodation plan with your employer
Once you feel you’re ready to return back to work, it will be time to sit down with your employer to discuss what accommodations you will require upon returning to the workforce. These accommodations may include vocational rehabilitation, staggered workdays, or adjustments to your previous role.22 It is important to remember that under the Canadian Human Rights Act, it is explicitly stated that your employer is unable to discriminate or terminate you due to your TBI.23 If your employer is not willing to rehire and accommodate your needs after your accident, it may be time to contact a personal injury lawyer to learn about next steps for legal action.
Understanding your legal rights after a TBI can be extremely stressful and confusing. Luckily, there are a wide variety of federal, provincial and territorial laws and programs that are available to support you legally and financially during your recovery.
As always, make sure to always research what human rights laws apply to your province or territory and how this will affect you in accessing resources and support.
Don’t let a TBI stop you from pursuing your right to lawful accommodations in the workplace. To learn more about available TBI support near you, check out our Community Support Page for TBI. To stay up-to-date with PoNS TreatmentTM, follow us on Facebook and LinkedIn or subscribe to our newsletter here.
1 Smith, Brooke. “Concussions a growing workplace problem.” Benefits Canada. Contex, March 21, 2017. https://www.benefitscanada.com/news/concussions-a-growing-workplace-challenge-95165
2 Smith, Brooke. “Concussions a growing workplace problem.” Benefits Canada. Contex, March 21, 2017. https://www.benefitscanada.com/news/concussions-a-growing-workplace-challenge-95165
3 Brain injury and Canadian law.” Conte Jaswal. 2014. https://contelawyers.ca/brain-injury-canadian-law/
4 “6 must-know facts if you were injured at work in Ontario.” HealthMax. February 1, 2019. https://healthmaxphysio.com/injured-at-work-ontario
5 “6 must-know facts if you were injured at work in Ontario.” HealthMax. February 1, 2019. https://healthmaxphysio.com/injured-at-work-ontario
6 Brain injury and Canadian law.” Conte Jaswal. 2014. https://contelawyers.ca/brain-injury-canadian-law/
7 “Had an accident at work? Don’t settle for less than you deserve”. Conte Jaswal. 2014. https://contelawyers.ca/injured-at-work/
8 “Report an injury or illness”. WSIB Ontario. 2019. https://www.wsib.ca/en/businesses/claims/report-injury-or-illness
9 “6 must-know facts if you were injured at work in Ontario.” HealthMax. February 1, 2019. https://healthmaxphysio.com/injured-at-work-ontario
10“What if my employer wants me to take wages or sick pay instead of making a worker’s compensation claim?” Steps to Justice. 2018. https://stepstojustice.ca/questions/employment-and-work/what-if-my-employer-wants-me-take-wages-or-sick-pay-instead
11 “Why do workplace accident claims typically get denied?’ VanDyke Law. March 9, 2018. https://www.vandykelaw.ca/2018/03/workplace-accident-claims-typically-get-denied/#:~:text=WSIB%20claims%20often%20get%20rejected,sustained%20a%20fall%20at%20work.
12 “Why do workplace accident claims typically get denied?’ VanDyke Law. March 9, 2018. https://www.vandykelaw.ca/2018/03/workplace-accident-claims-typically-get-denied/#:~:text=WSIB%20claims%20often%20get%20rejected,sustained%20a%20fall%20at%20work.
13 “Appeals”. WSIB Ontario. 2019. https://www.wsib.ca/en/appeals
14 “6 must-know facts if you were injured at work in Ontario.” HealthMax. February 1, 2019. https://healthmaxphysio.com/injured-at-work-ontario
15 “6 must-know facts if you were injured at work in Ontario.” HealthMax. February 1, 2019. https://healthmaxphysio.com/injured-at-work-ontario
16 “Return to work guidebook.” Brain Injury Canada. 2020. https://www.braininjurycanada.ca/wp-content/uploads/2019/10/Brain-Injury-Canada-RTW-Guidebook.pdf
17 Golosky, Jessica. “What is the duty of employers to accommodate people with brain injuries?” Mondaq. January 30, 2019. https://www.mondaq.com/canada/employee-rights-labour-relations/776144/what-is-the-duty-of-employers-to-accommodate-people-with-brain-injuries
18 Smith, Brooke. “Concussions a growing workplace problem.” Benefits Canada. Contex, March 21, 2017. https://www.benefitscanada.com/news/concussions-a-growing-workplace-challenge-95165
19 “Financial and income security”. Brain Injury Canada. 2020. https://www.braininjurycanada.ca/en/survivor/traumatic-brain-injury/return-work-activities/financial-income-security
20 “Financial and income security”. Brain Injury Canada. 2020. https://www.braininjurycanada.ca/en/survivor/traumatic-brain-injury/return-work-activities/financial-income-security
21 “Return to work guidebook.” Brain Injury Canada. 2020. https://www.braininjurycanada.ca/wp-content/uploads/2019/10/Brain-Injury-Canada-RTW-Guidebook.pdf
22 “Employer information”. Brain Injury Canada. 2020. https://www.braininjurycanada.ca/en/survivor/traumatic-brain-injury/return-work-activities/employer-information
23 Golosky, Jessica. “What is the duty of employers to accommodate people with brain injuries?” Mondaq. January 30, 2019.