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Consolidated Newfoundland Regulation 1996


CONSOLIDATED NEWFOUNDLAND REGULATION 1025/96

CONSOLIDATED NEWFOUNDLAND REGULATION 1025/96

Workers' Compensation Regulations
under the
Workers' Compensation Act
(O.C. 96‑574)

Under the authority of the Workers' Compensation Act and the Subordinate Legislation Revision and Consolidation Act, the Lieutenant‑Governor in Council makes the following regulations.

REGULATIONS

Analysis


        1.   Short title

        2.   Definitions

        3.   Approval required

        4.   Exclusions from Act

        5.   Commercial fishers

        6.   Interpretative provision

        7.   Determination of fisher's earnings

        8.   Assessments of fishers

        9.   Payment to fisher protected

      10.   Registration required

      11.   Responsibility of vessel owner

      12.   Report of vessel's master

      13.   Vessel owner to pay expenses

      14.   Volunteer fire fighters

      15.   When fire fighters are covered

      16.   Educational institutions

      17.   Payment in death of worker

      18.   Limit to compensation

      19.   Lump sum award

      20.   Minimum compensation

      21.   Maximum compensable and assessable earnings

      22.   Permanent disability benefits

      23.   Industrial diseases

      24.   Minimum assessment

      25.   Statements of payroll

      26.   Payroll estimate adjustments

      27.   Deduction from payroll

      28.   Late payment penalty

      29.   Return

      30.   Additional assessment

      31.   Recovery of assessments, etc.

      32.   Repeal

      33.   Commencement


Short title

        1. These regulations may be cited as the Workers' Compensation Regulations.

144/93 s1

Definitions

        2. In these regulations

             (a)  "Act" means the Workers' Compensation Act;

             (b)  "commercial fisher" means

                      (i)  a master or member of a crew of a licensed commercial fishing vessel,

                     (ii)  a master or member of a crew of a vessel which is engaged in fish packing, fish collecting or fish buying for commercial sale or use, or

                    (iii)  a person who in the opinion of the commission contributes to the catching or landing of fish for commercial sale or use and who

                            (A)  in the course of his or her occupation as a fisher, contributes to the catching or landing of fish for arrival in ports of the province for sale or use by a fish processing establishment or other commercial buyer or commercial recipient of fish,

                            (B)  in the course of his or her occupation as a fisher, receives payment in the province for fish or for his or her contribution to the catching or landing of fish from a person engaged within the province in transmitting payments to fishers as a result of the commercial sale or use of fish,

                            (C)  has made arrangements with the commission for the payment of assessments calculated by reference to his or her earnings from fishing, or

                            (D)  notwithstanding these regulations, would be a "worker" under the Act and a fisher;

             (c)  "commercial buyer" or "commercial recipient" means a person who buys or receives fish for resale or commercial use but excludes a person who buys for personal or family consumption;

             (d)  "commercial sale" means a sale to a person who buys for resale or commercial use but excludes a sale to a person who buys for personal or family consumption;

             (e)  "extended earnings loss benefits" means those benefits established as that by the board of directors under subsection 5(1) of the Act;

              (f)  "fish" means a species of animal living in water;

             (g)  "fisher" means a person who contributes in any manner to the catching or landing of fish;

             (h)  "fishing vessel" means a vessel used in catching fish or collecting and transporting fish for landing; and

              (i)  "reportable injury" means an injury required to be reported to the commission under section 56 of the Act.

144/93 s2

Approval required

        3. (1) Where an expenditure under section 9 of the Act equals or exceeds the amount of $100,000, the approval of the Lieutenant‑Governor in Council is required.

             (2)  For the purpose of this section, reference to an expenditure, is a reference

             (a)  in the case of an acquisition, sale or dealing to each individual acquisition, sale or dealing; and

             (b)  in the case of a lease, to each individual payment in respect of the lease.

144/93 s3

Exclusions from Act

        4. Under subsection 38(2) of the Act the following types of employment and occupations are excluded from the application of the Act

             (a)  employment by a person in respect of construction or renovation of a private residence, where the residence is or shall be used as a private residence of that person;

             (b)  employment by a person in respect of a function in a private residence of that person; and

             (c)  professional sports competitors.

144/93 s6

Commercial fishers

        5. (1) Except to the extent varied by these regulations or other regulations made under the Act, all provisions of the Act relating to workers shall apply to commercial fishers.

             (2)  For the purpose of the Act, a commercial fisher's employment is his or her work activities directly related to his or her occupation as a commercial fisher during his or her normal fishing season but does not include off‑season activities unless special coverage has been obtained from the commission.

             (3)  A commercial fisher is not to be considered to be in the course of his or her employment during the off‑season.

             (4)  In this section, "off‑season" means that period during which a fisher has ceased his or her operations, with a reasonable period for preparing and concluding the season's work, unless emergency circumstances prevail.

144/93 s7

Interpretative provision

        6. (1) For the purpose of section 44 of the Act

             (a)  "employer" includes a person required to pay assessments under section 8 and a person included in section 11, but does not include a commercial fisher; and

             (b)  "worker" includes a commercial fisher.

             (2)  Section 51 of the Act does not apply to a commercial fisher.

             (3)  For the purpose of sections 56 and 87 of the Act, the employer in respect of a fishing vessel owned or chartered by a commercial buyer or commercial recipient of fish is the vessel owner or charterer.

144/93 s8

Determination of fisher's earnings

        7. Average earnings in respect of a commercial fisher shall be determined in accordance with section 80 of the Act with reference to earnings from fishing in relation to which assessments have been paid or are required to be paid to the time of injury.

144/93 s9

Assessments of fishers

        8. (1) Unless the commission otherwise determines,

             (a)  a fish processing establishment licensed or required to be licensed under the Fish Inspection Act, which directly or indirectly acquires fish from a commercial fisher, shall pay assessments on the fish acquired, except where the fish are acquired from another fish processing establishment;

             (b)  a commercial buyer or commercial recipient who acquires fish from a commercial fisher other than

                      (i)  for resale to a fish processing establishment, or

                     (ii)  as agent for a fish processing establishment shall pay assessments on the fish acquired;

             (c)  a person who engages the services of a master or crew for a fishing vessel shall pay assessments on earnings of the master or crew in respect of which assessments are not paid or payable under paragraph (a) or (b); and

             (d)  a person engaged within the province in transmitting payment to a commercial fisher from the commercial sale of fish landed outside the province shall pay assessments on the payment.

             (2)  Assessments shall be paid on the total wages, price or other payments made payable to or on behalf of a commercial fisher and shall be calculated and determined, and the commission notified, in the manner that the commission may require.

             (3)  Priority of the commission in respect of an assessment from a person referred to in subsection (1) vests in the commission

             (a)  in relation to a fish processing establishment, a commercial buyer or a commercial recipient, on the day the fish is acquired;

             (b)  in relation to a person engaging a master or crew, on the day the master or crew receive the earnings in respect of which the assessments are paid; and

             (c)  in relation to a person transmitting payment to a commercial fisher as described in paragraph (1)(d), on the day the commercial fisher receives the payment transmitted.

             (4)  The fish processor, the commercial buyer and the commercial recipient are liable for the amount of the assessment in respect of the value of the fish purchased and the commission may levy upon and collect the assessment from one or more of them.

144/93 s10

Payment to fisher protected

        9. A sum payable in assessments shall not be deducted from a payment due to a commercial fisher.

144/93 s11

Registration required

     10. A person required to pay assessments under section 8 shall register with the commission and provide information that the commission may require.

144/93 s12

Responsibility of vessel owner

     11. In relation to compliance with the Act and regulations, and orders and directions issued under the Act in respect of fishing vessels, the vessel owner is responsible and, in addition to or instead of the vessel owner, the commission may require compliance with the Act or regulations, and orders and directions, by

             (a)  the vessel master;

             (b)  a commercial fisher;

             (c)  the vessel charterer;

             (d)  a person engaged in the construction, repair or maintenance of fishing vessels; or

             (e)  another person who works in or contributes to the production of the fishing industry.

144/93 s13

Report of vessel's master

     12. Where the master of a fishing vessel receives a report under section 56 of the Act, or becomes aware that a member of his or her crew has died or sustained

             (a)  a reportable injury and the death or injury is or is claimed to be arising out of and in the course of the employment of a commercial fisher; or

             (b)  an industrial disease,

the master shall immediately report the injury, death or industrial disease to the vessel owner or charterer or, where that is impracticable, to the commission.

144/93 s14

Vessel owner to pay expenses

     13. For the purpose of subsection 87(1) of the Act, the expense of transporting an injured fisher to a hospital, physician or qualified practitioner for initial treatment shall be paid by the owner of the vessel on which the fisher is injured or, where the vessel is chartered, by the charterer of the vessel on which the fisher is injured or, in default of payment by the vessel owner or charterer, the vessel master.

144/93 s15

Volunteer fire fighters

     14. On the application of a municipality within whose boundaries a volunteer fire department or brigade is located and serves, the commission may apply the provisions of the Act in the manner set out in section 15.

144/93 s16

When fire fighters are covered

     15. (1) For the purpose of the Act, where the commission has admitted a volunteer fire department or brigade

             (a)  the members of the department or brigade who are certified as that by an official of the municipality shall be considered workers; and

             (b)  the municipality that makes the application for admission of the department or brigade shall be considered the employer.

             (2)  The members of a volunteer fire department or brigade are considered to be in the course of their employment from the time they leave their residence or place of employment to respond to an emergency call until they have completed those activities required to respond to that emergency call.

             (3)  The members of a volunteer fire department or brigade are also considered to be in the course of their employment while

             (a)  carrying out duties and responsibilities assigned by their employer or its delegate;

             (b)  repairing and maintaining firefighting equipment on the premises of the department or brigade; and

             (c)  attending educational and training sessions which have been sanctioned by the Office of the Fire Commissioner.

             (4)  The members of a volunteer fire department or brigade are not considered to be in the course of their employment while involved in fundraising activities on behalf of the department or brigade.

             (5)  An employer shall yearly, before January 1 and at the other times that the commission requires, notify the commission of the number of members of the volunteer fire department or brigade.

Educational institutions

     16. (1) For the purpose of paragraph 2(i) of the Act, "educational institution" means

             (a)  the Memorial University of Newfoundland;

             (b)  Cabot College of Applied Arts, Technology and Continuing Education;

             (c)  Eastern College of Applied Arts, Technology and Continuing Education;

             (d)  Central Newfoundland Regional College of Applied Arts, Technology and Continuing Education;

             (e)  West Viking College of Applied Arts, Technology and Continuing Education;

              (f)  Labrador College of Applied Arts, Technology and Continuing Education; and

             (g)  a central high school or regional high school as defined by the Schools Act.

             (2)  For the purpose of paragraph 2(y) of the Act, "work training program" means work

             (a)  of a type, whether or not the Act applies to that work, that is designated by the authorities of an educational institution as being suitable for student training; and

             (b)  for which the student is not compensated by the employer.

144/93 s18

Payment in death of worker

     17. (1) Under section 65 of the Act, where the death of a worker results from an injury which occurs after June 30, 1996, a dependent spouse who survives the worker is entitled to,

             (a)  a lump sum payment equal to 26 times the worker's average weekly net earnings at the time of injury, or $15,000, whichever is greater; and

             (b)  compensation in an amount equal to 80% of the worker's average weekly net earnings at the time of the injury less a survivor's pension payable to the surviving spouse under the Canada Pension Plan, payable periodically until the date that the worker would have reached 65 years of age.

             (2)  Where the death of a worker results from an injury which occurs after June 30, 1996 and the worker is survived only by one or more dependent children, in addition to compensation payable under section 70 of the Act, the dependent children are entitled to share equally in a lump sum payment equal to 26 times the worker's average weekly net earnings at the time of injury or $15,000, whichever is greater, and the payment shall be paid to the guardian of the property of the children.

             (3)  Where a surviving spouse in receipt of a benefit under this section dies leaving one or more dependent children of the worker under the age of 18 years, the compensation payable under paragraph (1)(b) shall be paid to the guardian of the property of the children until the youngest child reaches the age of 18 years.

             (4)  Where a worker dies leaving no surviving dependent spouse or children, the commission shall pay the expenses for the burial of the worker or a memorial service held for the worker to a maximum of $4,500.

             (5)  Regardless of subsections (1) and (2), where the worker is 63 years old or more at the time of death, the periodic compensation under paragraph (1)(b) shall be provided for a period of not more than 2 years following the death of the worker.

             (6)  Where a worker dies after the coming into force of these regulations from an injury incurred before they came into force, the benefits payable to a dependent of the worker on his or her death shall be determined according to the regulations in force at the time he or she sustained the injury causing death.

             (7)  Nothing in this section affects the right of a dependent to continue to receive benefits to which he or she was entitled upon this regulation coming into force and to increases to those benefits which may be provided under subsection 65(1.1) of the Act.

Limit to compensation

     18. (1) A surviving dependent spouse, entitled to compensation by reason of the death of a worker, is not entitled to further compensation as a dependent of another worker.

             (2)  Compensation payable to a person under subsection 65(2) of the Act shall cease when a person becomes entitled to compensation as a surviving spouse of a worker.

Lump sum award

     19. A lump sum award under subsection 73(2) of the Act, shall be no less than $1,000 and no greater than the maximum compensable earnings prescribed by section 21.

144/93 s22

Minimum compensation

     20. (1) Under section 78 of the Act, the minimum compensation shall be

             (a)  $200 per week; or

             (b)  where the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury are less than $200 per week, the full amount of their average weekly net earnings;

less

             (c)  a benefit relative to an injury that a worker is entitled to receive under the Canada Pension Plan; and

             (d)  a benefit that a worker is entitled to receive under an employer‑sponsored pension plan that is registered with and certified by the Superintendent of Pensions under the Pension Benefits Act.

             (2)  Regardless of subsection (1), the minimum compensation shall not be applicable to a worker in receipt of extended earnings loss benefits for total disability unless the worker's entitlement to those benefits commenced after December 31, 1992.

             (3)  Regardless of subsections (1) and (2), in calculating the minimum compensation, the commission shall not deduct the benefit referred to in paragraph (1)(c) where a worker

             (a)  was in receipt of a benefit under the Canada Pension Plan and compensation other than extended earnings loss benefits on July 8, 1993; and

             (b)  is still in receipt of compensation, other than extended earnings loss benefits.

Maximum compensable and assessable earnings

     21. (1) For the purpose of section 102 and subsection 80(8) of the Act, the maximum compensable and assessable earnings shall be $45,500 in annual gross wages until the time that the annual Industrial Aggregate Wage for the province multiplied by 150% equals or exceeds that amount.

             (2)  Once the annual Industrial Aggregate Wage Index for the province multiplied by 150% equals or exceeds $45,500 in annual gross wages, the commission shall then review the maximum compensable and assessable earnings amount annually and the Consumer Price Index for Canada as published by Statistics Canada shall be applied and the amount adjusted accordingly.

Permanent disability benefits

     22. (1) In this section, "permanent disability benefits" means permanent partial or permanent total disability benefits payable under the Workers' Compensation Act.

             (2)  Where permanent disability benefits are being paid to a worker in respect to an injury which occurred before January 1, 1984, those benefits may, after December 31, 1985,

             (a)  where there is no loss of earnings as a result of the injury, be converted to a lump sum payment based on the capitalized reserve established to sustain the permanent disability benefits, subject to the conversion being acceptable to the injured worker;

             (b)  where there is a demonstrated or considered loss of earnings as a result of the injury, be integrated into loss of earnings benefits; or

             (c)  where necessary or appropriate, be determined by using a combination of paragraphs (a) and (b).

             (3)  In no case shall the conversion of benefits under subsection (2) result in a decrease in the amount of benefits being paid immediately before the conversion.

144/93 s25

Industrial diseases

     23. For the purpose of subsection 90(2) of the Act the commission has set out the following industrial diseases and associated processes:

 

Industrial Disease

 

Description of Process *

1. Pneumoconiosis caused by sclerogenic mineral dust (silicosis, anthraco‑silicosis, asbestosis) and silicio‑tuberculosis, provided that silicosis is an essential factor in causing the resultant incapacity or death.

 

All work involving exposure to the risk concerned.

2. Bronchopulmonary diseases caused by hard metal dust.

 

All work involving exposure to the risk concerned.

3. Bronchopulmonary diseases caused by cotton dust (byssinosis), or flax, hemp or sisal dust.

 

All work involving exposure to the risk concerned.

4. Occupational asthma caused by sensitizing agents or irritants both recognized in this regard and inherent in the work process.

 

All work involving exposure to the risk concerned.

 

5. Extrinsic allergic alveolities and its sequelae caused by the inhalation of organic dusts, as prescribed by national legislation.

 

All work involving exposure to the risk concerned.

6. Diseases caused by beryllium or its toxic compounds.

 

All work involving exposure to the risk concerned.

7. Diseases caused by cadmium or its toxic compounds.

 

All work involving exposure to the risk concerned.

8. Diseases caused by phosphorus or its toxic compounds.

 

All work involving exposure to the risk concerned.

9. Diseases caused by chromium or its toxic compounds.

 

All work involving exposure to the risk concerned.

10. Diseases caused by mangese or its toxic compounds.

 

All work involving exposure to the risk concerned.

11. Diseases caused by arsenic or its toxic compounds.

 

All work involving exposure to the risk concerned.

12. Diseases caused by mercury or its toxic compounds.

 

All work involving exposure to the risk concerned.

13. Diseases caused by lead or its toxic compounds.

 

All work involving exposure to the risk concerned.

14. Diseases caused by fluorine or its toxic compounds.

 

All work involving exposure to the risk concerned.

15. Diseases caused by carbon disulfide.

 

All work involving exposure to the risk concerned.

16. Diseases caused by the toxic halogen derivatives of aliphatic or aromatic hydrocarbons.

 

All work involving exposure to the risk concerned.

17. Diseases caused by benzene or its toxic homologues.

 

All work involving exposure to the risk concerned.

18. Diseases caused by toxic nitro and amio‑derivatives of benzene or its homologues.

 

All work involving exposure to the risk concerned.

19. Diseases caused by nitroglycerin or other nitric acid esters.

 

All work involving exposure to the risk concerned.

20. Diseases caused by alcohols, glycols or ketones.

 

All work involving exposure to the risk concerned.

21. Diseases caused by asphyxiants; carbon monoxide, hydrogen cyanide or its toxic derivatives, hydrogen sulfide.

 

All work involving exposure to the risk concerned.

22. Hearing impairment caused by noise.

 

All work involving exposure to the risk concerned.

23. Diseases caused by vibration (disorders of muscles, tendons, bones, joints, peripheral blood vessels or peripheral nerves).

 

All work involving exposure to the risk concerned.

24. Diseases caused by work in compressed air.

 

All work involving exposure to the risk concerned.

25. Diseases caused by ionizing radiations.

 

All work involving exposure to the action of ionizing radiations.

26. Skin diseases caused by physical, chemical or biological agents not included under other items.

 

All work involving exposure to the risk concerned.

27. Primary epitheliomatous cancer of the skin caused by tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products or residues of these substances.

 

All work involving exposure to the risk concerned.

28. Lung cancer or mesotheliomas caused by asbestos.

 

All work involving exposure to the risk concerned.

29. Infectious or parasitic diseases contracted in an occupation where there is a particular risk of contamination.

 

(a) health or laboratory work;

(b) veterinary work;

(c) work handling animals, animal carcases, parts of those carcases, or merchandise which may have been contaminated by animals, animal carcases, or parts of such carcases; and

(d) other work carrying a particular risk of contamination.

* In the application of this Table, the degree and type of exposure should be taken into account when appropriate.

144/93 s26

Minimum assessment

     24. Where an assessment at a provisional or adjusted rate would be less than $50, an employer shall be assessed a minimum assessment of $50.

144/93 s27

Statements of payroll

     25. (1) Under subsection 101(2) of the Act, certified statements of payroll shall be signed by the employer or manager of the business or, where the employer is a corporation, by an officer of the corporation having a knowledge of the matter in the declaration, and shall be submitted to the commission not later than

             (a)  30 days after becoming an employer under the Act; and

             (b)  February 28 of each subsequent year.

             (2)  The statement referred to in subsection (1) shall be in the form provided by the commission and shall include information requested by the commission.

             (3)  Every employer who fails to comply with this section shall be liable for an additional assessment in accordance with the following table:

 

Amount of
Assessment Payable

 

Penalty

 

$50 ‑ 999

$50

1,000 ‑ 4,999

100

5,000 ‑ 49,999

500

50,000 ‑ 99,999

1,000

100,000 ‑ and over

2,000

144/93 s28

Payroll estimate adjustments

     26. Under subsection 101(2) of the Act, in adjusting provisional payroll estimates to the actual payroll estimates at the end of the calendar year or at the closing of an account, where the actual payroll is more than 125% of that which has been estimated a penalty equal in amount to 10% of the difference between the actual assessment and 125% of the estimated or provisional assessment shall be added to the actual assessment where a penalty is not imposed when it would amount to less than $50.

144/93 s29

Deduction from payroll

     27. Under section 102 of the Act, in computing and adjusting the amount of the payroll of an employer, an amount in excess of $45,500 a year paid to a worker shall be deducted from the amount of the payroll and the assessment shall be based on the payroll as reduced.

144/93 s30

Late payment penalty

     28. (1) Under sections 100 and 117 of the Act, where an assessment which is due and payable on January 1 is not paid by April 1 in that year, the employer shall pay as a penalty a percentage, determined in accordance with subsection (3), of the amount unpaid for each month after March, where the default continues.

             (2)  Under sections 100 and 117 of the Act, where an assessment is due and payable after January 1,

             (a)  where the worker is employed after January 1 but before March 1 and the assessment is not paid by April 1 in that year, the employer shall pay as a penalty a percentage, determined in accordance with subsection (3), of the amount unpaid for each month after March, where the default continues; and

             (b)  where the worker is employed after February 28 and the assessment is not paid within 30 days after the date on which it becomes due and payable, the employer shall pay as a penalty a percentage, determined in accordance with subsection (3), of the amount unpaid for each month after those 30 days where the default continues.

             (3)  For the purpose of subsections (1) and (2), the percentage shall be the sum of

             (a)  the prime rate in effect with the commission's banking institution on April 1 of that year; and

             (b)  3%

divided by 12, rounded off to the nearest 1/100 of 1%.

             (4)  The penalty for default is to be applied even though the amount in default may include a penalty previously imposed.

144/93 s31

Return

     29. At the end of each year a principal shall make a return to the commission of the names of all persons to whom contracts were given during the previous year and details of those contracts in the form required by the commission.

Additional assessment

     30. Under subsection 123(2) of the Act, an employer who fails to comply with the provisions of section 56 of the Act may, in addition to other penalties that may be applicable, be assessed

             (a)  in respect to a "medical aid only" claim, an amount of $100; or

             (b)  in respect to a "lost time" claim, an amount of $200.

144/93 s35

Recovery of assessments etc.

     31. All fines, penalties, assessments and amounts that may be assessed, imposed or recovered under these regulations may be recovered in the name of the commission in a court of summary jurisdiction, but the commission, where satisfied that a default referred to in these regulations was excusable, may relieve the employer in whole or in part of a penalty.

144/93 s36

Repeal

      32. The Workers' Compensation Regulations, Newfoundland Regulations 144/93 and 60/95, are repealed.

Commencement

      33. (1) These regulations shall come into force on July 1, 1996, with the exception of subsections 20(2) and (3).

             (2)  Subsection 20(2) is considered to have come into force on January 1, 1993.

             (3)  Subsection 20(3) is considered to have come into force on July 9, 1993.