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Statutes of Newfoundland 1992


CHAPTER 29

CHAPTER 29

AN ACT TO AMEND THE WORKERS'
COMPENSATION ACT

(Assented to December 23, 1992)

Analysis

1. S.2 Amdt.
Definitions

2. S.4 Amdt.
Board of directors

3. S.6 R&S
Chief executive officer

4. S.8 Amdt.
Offices and administration

5. S.12 Amdt.
Annual report

6. S.19 Amdt.
Exclusive jurisdiction

7. S.43 Amdt.
Compensation payable

8. S.44.1 Added
No compensation

9. S.45 Amdt.
Where action allowed

10. S.47 Amdt.
Length of disability

11. S.65 Amdt.
Compensation where fatal accident

12. S.71 Rep.
Where spouse remarries

13. S.72 Amdt.
Payments to children

14. S.73 Amdt.
Compensation for disability

15. S.74 Amdt.
Lost earning capacity

16. S.74.1 Added
Compensation to be reviewed annually

17. S.75 R&S
Annuity at age 65

18. S.77 Amdt.
Recurrence of injury

19. S.81 Amdt.
Benefits to be considered

20. S.81.1 Added
Employer not to agree to pay amount in excess of compensation

21. S.88 Amdt.
Rehabilitation

22. S.90 Amdt.
Industrial disease

23. S.116 Amdt.
Reserves within fund

24. RSN 1990 cO-3 Amdt.

25. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN 1990 cW-11 as amended

1. (1) Section 2 of the Workers' Compensation Act is amended by adding the following immediately after paragraph (g):

(g.1) "disability" means the loss of earning capacity of a worker as a result of an injury;

(2) Section 2 of the Act is also amended by adding the following immediately after paragraph (l):

(l.1) "impairment" means a physical or functional abnormality or loss, including disfigurement, as a result of an injury;

(3) Subparagraph 2(v)(iii) is amended by deleting the word "annual".

2. (1) Subsections 4(1) and (2) of the Act are repealed and the following substituted:

Board of directors

4. (1) There shall be a board of directors responsible for the administration of this Act, which shall consist of 7 members appointed by the Lieutenant-Governor in Council, 1 of whom shall be appointed chairperson by the Lieutenant-Governor in Council.

(2) Workers and employers shall be equally represented in the membership of the board.

(2) Subsection 4(3) of the Act is amended by inserting after the phrase "the appeal tribunal" a comma and the phrase "the Assistant Deputy Minister of the Department of Employment and Labour Relations responsible for Occupational Health and Safety".

(3) Subsection 4(5) of the Act is repealed.

3. Section 6 of the Act is repealed and the following substituted:

Chief executive officer

6. The board of directors shall, subject to the prior approval of the Lieutenant-Governor in Council, appoint a chief executive officer of the commission who shall devote the whole of his or her time to the performance of duties under this Act.

4. Subsection 8(2) of the Act is repealed and the following substituted:

(2) All expenses incurred in the administration of this Act shall be paid out of the injury fund.

5. Subsection 12(1) of the Act is amended by deleting the words "before April 1" and by substituting the words "before June 1".

6. Paragraphs 19(1)(b) and (c) of the Act are amended by adding immediately after the word "disability" the phrase "or impairment".

7. (1) Subsection 43(2) of the Act is amended by adding immediately after the word "disabled" the phrase "or impaired".

(2) Section 43 is further amended by adding the following immediately after subsection (2):

(3) The commission shall pay interest on compensation payable for loss of wages to a worker or the worker's dependents where the payment of that compensation is delayed, for more than 30 days, as a result of circumstances that are in the control of the commission.

(4) The rate of interest paid under subsection (3) shall be calculated in accordance with the provisions of the Judgment Interest Act.

8. The Act is amended by adding the following immediately after section 44:

No compensation

44.1 Section 44 shall not apply where the worker is injured or killed

(a) while being transported in the course of the worker's employment by a mode of transportation in respect of which public liability insurance is required to be carried; or

(b) as a result of an accident involving the use of a motor vehicle by the worker or another person, in the course of the worker's employment.

9. (1) Subsection 45(1) of the Act is repealed and the following substituted:

Where action allowed

45. (1) Where a worker sustains an injury in the course of his or her employment in circumstances which entitle him or her or his or her dependents to an action

(a) against some persons other than an employer or worker;

(b) against an employer or against a worker of that employer where the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer; or

(c) where section 44.1 applies,

the worker or his or her dependents, where they are entitled to compensation, may claim compensation or may bring an action.

(2) Subsections 45(2) to (10) are repealed and the following substituted:

(2) The worker or his or her dependents shall make an election under subsection (1) within 6 months of the injury and an application for compensation is a valid election for the purpose of this section.

(3) Where the worker or his or her dependents elect to bring an action, he or she or they shall immediately serve notice in writing of the election on the commission, and where an action is commenced, he or she or they shall immediately serve notice in writing of the action on the commission.

(4) Where the commission is satisfied that due to a physical or mental disability a worker is unable to exercise his or her right of election, and undue hardship will result, it may pay the compensation provided by this Act until the worker is able to make an election.

(5) Where the worker referred to in subsection (4) elects not to claim compensation, no further compensation shall be paid, but the compensation that has been paid shall be a 1st lien against a sum that may be recovered.

(6) Where a person who is required to make an election under this section is under the age of 18 years, his or her parent or guardian may make the election.

(7) Where a worker referred to in subsection (1) or the worker's dependents bring an action or settle out of court and less is recovered and collected than the amount of the compensation to which the worker or dependents would be entitled under this Act, the worker or dependents are not entitled to claim compensation under this Act.

(8) Where the worker or the worker's dependents apply to the commission claiming compensation under this Act, neither the making of the application nor the payment of compensation under it shall restrict or impair a right of action against the party liable, but in relation to those claims the commission is subrogated to the rights of the worker or his or her dependents and may maintain an action in his or her or their names or in the name of the commission against the person against whom the action lies for the whole or an outstanding part of the claim of the worker or his or her dependents.

(9) The commission has exclusive discretion to determine whether it shall take an action, release its claim for an action or compromise the right of action, and its decision is final.

(10) Where, in an action under subsection (1), a worker or the worker's dependents receive money as the result of a judgment given by a court of law and the commission is owed money under this section by the worker or his or her dependents, the judge shall order that the money owed be paid to the commission.

(11) Where the commission is subrogated to the rights of a worker or the worker's dependents and recovers and collects more than the amount of the compensation to which the worker or dependents would be entitled under this Act, the sum representing the amount of the excess, less costs and administration charges, shall be paid to the worker or dependents.

(12) Costs may, notwithstanding that a salaried employee of the commission acts as its solicitor or counsel, be awarded to and collected by the commission in an action taken by the commission under this section.

10. Section 47 of the Act is amended by adding the following immediately after subsection (2):

(3) Where an injury results in a permanent functional impairment to a worker, he or she is entitled to compensation for the impairment notwithstanding the fact that there is no loss of earnings.

11. Section 65 of the Act is amended by adding the following immediately after subsection (1):

(1.1) Notwithstanding subsection 123(1), the commission may increase annually the amount of compensation paid to the worker's surviving dependent spouse and children by applying the Consumer Price Index for Canada as published by Statistics Canada.

12. Section 71 of the Act is repealed.

13. Subsection 72(1) is amended by deleting the figure "16" and substituting the figure "18".

14. (1) Subsection 73(1) is amended by deleting the word "disfigured" and by substituting the word "impaired".

(2) Paragraph 73(1)(b) and subsection 73(3) of the Act are amended by deleting the phrase "disability or disfigurement" wherever it appears and substituting the phrase "permanent impairment".

15. (1) Subsection 74(2) is repealed and the following substituted:

(2) After December 31, 1992 the rate used for calculating a worker's loss of earning capacity shall

(a) for the 1st 39 weeks, be 75%; and

(b) after 39 continuous weeks 80%

of the difference between the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury, subject to the maximum prescribed amount under subsection 80(8), and the average weekly net earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining that injury.

(2.1) The rate used for calculating the loss of earning capacity for a worker who is injured prior to January 1, 1993 and who has been receiving compensation for

(a) up to 39 continuous weeks shall be 75%; and

(b) 39 continuous weeks or more shall be 90%

of the difference between the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury, subject to the maximum prescribed amount under subsection 80(8), and the average weekly net earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining that injury.

(2.2) The calculation for a worker referred to in paragraph (2.1)(a) who is still entitled to receive compensation after 39 continuous weeks shall be 80% of the difference between the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury, subject to the maximum prescribed amount under subsection 80(8), and the average weekly net earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining that injury.

(2.3) Notwithstanding paragraph (2.1)(b), the rate paid to a worker who is referred to in paragraph (2.1)(b) and to whom section 74.1 does not apply shall from January 1, 1994 be reduced annually by 2.5% until the rate used for calculating the amount of compensation to be paid to that worker reaches 80%.

(2.4) Notwithstanding paragraphs (2)(b) and (2.1)(b), where a worker's claim for compensation is re-opened the rate used for calculating that worker's loss of earning capacity shall

(a) for the 1st 39 weeks after the claim is re-opened be 75%; and

(b) after 39 continuous weeks be 80%

of the difference between the worker's average weekly net earnings at the commencement of his or her loss of earnings resulting from the injury, subject to the maximum prescribed amount under subsection 80(8), and the average weekly net earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining that injury.

(2) Subsection 74(6) of the Act is repealed.

16. The Act is amended by adding the following immediately after section 74:

Compensation to be reviewed annually

74.1 (1) Extended earnings loss benefits being paid to a worker shall be reviewed annually and the Consumer Price Index for Canada as published by Statistics Canada shall be applied to that worker's estimated annual earnings prior to the commencement of his or her loss of earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

(2) Notwithstanding subsection (1), the extended earnings loss benefits being paid to a worker shall not be increased under subsection (1) by applying the Consumer Price Index for Canada until the time that the amount of compensation being paid to that worker is equal to 80% of that worker's estimated annual earnings as adjusted by the application of the Consumer Price Index for Canada.

17. Section 75 of the Act is repealed and the following substituted:

Annuity at age 65

75. (1) Where a worker who is eligible for benefits as a result of an injury that occurred after December 31, 1983 reaches the age of 65, an amount equal to the amount of a benefit that the worker demonstrates to the commission, that he or she has lost as a result of an injury for which he or she is receiving compensation under this Act, under the Canada Pension Plan or from a registered employer sponsored pension plan covering the worker and which is registered with and certified by the Superintendent of Pensions in accordance with the Pension Benefits Act shall be paid to him or her by the commission.

(2) All the money that the commission has set aside in reserves of the commission on behalf of a worker to provide an annuity shall, after December 31, 1992, revert to the injury fund of the commission.

(3) After December 31, 1992 a right that a worker may have had to receive the money set aside in reserves of the commission prior to January 1, 1993 or to have the money paid into an established superannuation fund is extinguished.

18. Section 77 of the Act is amended by renumbering it as subsection (1) and by adding the following immediately after subsection (1):

(2) After December 31, 1992 where a worker suffers a recurrence of an injury, whether the initial injury occurred before or after January 1, 1993, the calculation for the loss of earning capacity shall

(a) for the 1st 39 weeks be based on 75%; and

(b) after 39 continuous weeks be based on 80%,

of the amount that is reached under subsection (1).

19. Section 81(3) of the Act is repealed and the following substituted:

(3) A benefit relative to an injury that a worker is entitled to receive under the Canada Pension Plan shall be considered as wages that the worker is capable of earning in calculating the compensation to be paid by the commission for loss of earning capacity.

20. The Act is amended by adding the following immediately after section 81:

No amount in excess of compensation

81.1 (1) After January 1, 1993, an employer and a worker shall not in an agreement provide that the employer shall pay an amount in excess of the amount that the worker, as a result of an injury, is receiving as compensation either under this Act or as if the worker were a worker within the scope of this Act.

(2) Where an employer and a worker enter into an agreement in contravention of subsection (1), that agreement is of no effect.

(3) Where, prior to the coming into force of this section, an employer has entered into an agreement to pay all or a portion of a worker's wages where the worker sustains an injury, the liability of the employer for that payment

(a) continues until the operation of the agreement ceases but in any event shall not continue after January 1, 1995; and

(b) shall not be greater than it was prior to the commencement of this section.

(4) For the purpose of this section, the word "agreement" means a collective agreement or other contract of employment.

21. (1) Section 88 of the Act is amended by deleting the word "or" at the end of paragraph (b), by deleting the period at the end of paragraph (c) and substituting a semi-colon and the word "or".

(2) Section 88 of the Act is further amended by adding the following immediately after paragraph (c):

(d) to assist a surviving dependent spouse by providing the same counselling, academic and vocational services as provided to an injured worker where, in the opinion of the commission, those services are required by the dependent spouse.

22. Section 90 of the Act is amended by adding the following immediately after subsection (3):

(3.1) Where a worker referred to in subsection (1), who, at or immediately before the date of the disablement was employed in a process involving asbestos, is suffering from the industrial disease known as asbestosis, the disease shall be conclusively considered to have been due to the nature of that employment.

23. Paragraph 116(1)(b) of the Act is repealed and the following substituted:

(b) by way of providing a reserve fund to be used to meet the part of the cost of claims of workers suffering enhanced disabilities, because of similar or other disabilities previously suffered, that in the opinion of the commission is the result of the previous disabilities, and to meet the cost of subsequent injuries resulting while a worker is participating in a rehabilitation program;

RSN 1990 cO-3 Amdt.

24. Section 14 of the Occupational Health and Safety Act is repealed and the following substituted:

Members of council

14. (1) The council shall consist of not more than 11 members, 2 of whom shall be the assistant deputy minister and the chief executive officer of the Worker's Compensation Commission.

(2) The membership of the council is to include equal representation from labour and management.

(3) Members are to be appointed for terms not exceeding 3 years and are eligible for reappointment for not more than 2 consecutive terms.

(4) The members of the council appointed prior to the coming into force of this section shall cease to hold office upon the coming into force of this section.

Commencement

25. This Act shall come into force on January 1, 1993.

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