Insurer Applicant Deemed Employed at Time of Accident While Receiving Benefits Through WSIB

In the recent Licence Appeal Tribunal (LAT) decision, Coban v Allstate Insurance (21-012430/AABS), Adjudicator Leo Demarce found that the applicant was employed at the time of the accident while completing a Work Transition Program (WTP) facilitated through the Workplace Safety Insurance Board (WSIB).

Prior to the accident, the applicant was employed as a painter when he suffered an injury on the worksite that prevented him from returning to work.  The applicant then enrolled into the WTP where he was to complete a 2-year study for Architectural Technology.  The WTP paid the applicant a benefit of $651.61 per week from WSIB.

At the end of the 2-year program, the WTP was extended with new terms which included the completion of a 3^rd year of schooling and a work placement with Cole + Associates (COLE) from July 3 to August 31, 2018.  The applicant continued to receive payment of $651.61 per week through the WTP from WSIB.  At the end of the placement, COLE collaboratively agreed to continue the work placement at a reduced capacity while the applicant completed his studies up to December 21, 2018.  The applicant continued to receive $651.86 per week from WSIB.  Under the work placement, the applicant was required to:

1. Work 37.5 hours per week during the initial part of the job placement and then 8 hours per week when he returned to his 3^rd year of studies;
2. Perform the duties of the role of Project Administrator as stated in the Memo from the return-to-work specialist at WSIB, consistent with the job description provided by COLE and;
3. Report to his supervisor at COLE who worked with the return-to-work specialist at WSIB on a regular basis to ensure the applicant was performing the duties of his placement.

On October 6, 2018, the accident occurred, and the applicant was no longer able to participate in the WTP.  The weekly payment ceased as of November 5, 2018, and the applicant commenced receiving benefits of $257.27 under Section 43(2) of the Workplace Safety Insurance Act.  The applicant sought benefits pursuant to the Statutory Accident Benefits Schedule (SABS) but was denied.

The insurer argued that the applicant was not employed at the time of the accident.  The insured further submits that although the applicant was participating in a part-time work placement with COLE, he was not “employed” due to the fact that his placement was part of a vocational rehabilitation program through WSIB, and he was in receipt of disability benefits rather than “employment income” at the time of the accident.

The SABS does not provide a definition for the word “employed”.  The applicant submits that in a decision from Divisional Court in Kawa Arab v Unica Insurance, 2022 ONSC 5761 (CanLII) to be employed under the SABS for the purposes of determining IRB entitlement requires that an insured be (a) in an employment relationship, and (b) entitled to receive remuneration therefrom.

The respondent submits that the applicant’s benefit from WSIB was paid in accordance with the Workplace Safety Insurance Act and was not contingent on the number of hours worked at COLE.  The respondent further submits that WSIB, not COLE, had final say over the duties that the applicant was to be performing as part of his work placement.  The respondent states that it is the WSIB that demands that the applicant is to apply his architectural technician training and related skills to the job he is placed at. That is, WSIB, not the employer, is in control of the applicant’s duties.

Adjudicator Demarce disagreed with the respondent and stated the employer is in control of the applicant’s duties.  Specifically, it is the responsibility of the return-to-work specialist at WSIB and the applicant to search for a job that contains duties that WSIB requires the applicant to be performing.

Therefore, Adjudicator Demarce found that the applicant was employed at the time of the accident and the responsibilities he was required to perform created an employee/employer relationship.  Furthermore, the applicant received remuneration from WSIB and Adjudicator Demarce found it reasonable to connect that the remuneration was for employment.  As a result of the above, Adjudicator Demarce found the applicant entitled to income replacement benefits per the SABS.

Read the decision in full detail here: Coban v Allstate Insurance (21-012430/AABS)