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Statutes of Newfoundland 1994


CHAPTER 12

CHAPTER 12

AN ACT TO AMEND THE WORKERS'
COMPENSATION ACT

(Assented to June 9, 1994)

Analysis

1. S.2 Amdt.
Definitions

2. S.4 Amdt.
Board of directors

3. S.11 Amdt.
Audits of commission and appeal tribunal

4. Ss. 21 to 34 R&S
21. Review Division
22. Workers' Compensation review commissioner
23. Chief review commissioner
24. Officers and employees
25. Expenses
26. Review by review commissioner
27. Rules
28. Application to review commissioner
29. Conflict of interest
30. Annual report to House of Assembly

5. S.36 Amdt.
Rules for appeal

6. S.37 Amdt.
Notification of appeals, etc.

7. S.44.1 Amdt.
No compensation payable

8. S.45 Amdt.
Where action allowed

9. S.74 Amdt.
Lost earning capacity

10. S.81 Amdt.
Benefits to be considered

11. S.90.1 Added
Industrial disease compensation

12. Transitional

13. 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 (1) Paragraph 2(a) of the Workers' Compensation Act is repealed.

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

(v.1) "review commissioner" means a review commissioner appointed under section 22;

(v.2) "review division" means the review division established under section 21;

2. Subsection 4(3) of the Act is amended by striking out the words and comma "chairperson of the appeal tribunal, the".

3. Section 11 of the Act is amended by striking out the words "appeal tribunal" wherever they occur and substituting the words "review division".

4. Sections 21 through 34 of the Act are repealed and the following substituted:

Review division

21. There shall be established a review division responsible for the review of decisions of the commission in accordance with this Part.

Workers' compensation review commissioner

22. (1) The Lieutenant-Governor in Council shall on the recommendation of the minister appoint to the review division a panel of persons to act as review commissioners.

(2) A panel appointed under subsection (1) shall not exceed 7 persons, 1 of whom shall be appointed by the Lieutenant-Governor in Council as chief review commissioner.

(3) The terms of office, remuneration, benefits and expenses of the review commissioners shall be determined by the Lieutenant-Governor in Council.

(4) A review commissioner shall hold office during good behaviour for a term that the Lieutenant-Governor in Council may establish.

Chief review commissioner

23. The chief review commissioner of the panel appointed under section 22 shall review a matter brought before him or her under subsection 28(1) or shall refer that matter to another review commissioner of the panel.

Officers and employees

24. (1) There may be employed, in the manner provided by law, those officers, employees and advisors of the review division that are necessary to enable the review division to carry out its functions and the Lieutenant-Governor in Council may fix their terms of service.

(2) Notwithstanding subsection (1), those officers and employees employed with the appeal tribunal existing under Part II on June 30, 1994 who are considered by the minister to be necessary for the operations of the review division existing under Part II on July 1, 1994 shall be considered to have been employed in accordance with subsection (1).

(3) The Lieutenant-Governor in Council may determine the remuneration for services and allowances for travelling and other expenses that shall be paid to the officers, employees and advisors employed under subsection (1).

Expenses

25. Expenses incurred in the administration of the review division, including those under section 24, shall be paid out of the Consolidated Revenue Fund and that fund shall be reimbursed by money from the injury fund.

Review by review commissioner

26. (1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to

(a) compensation benefits and rehabilitation services and benefits;

(b) an employer's assessment;

(c) the assignment of an employer to a particular class or group; and

(d) an employer's merit or demerit rating.

(2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law.

Rules

27. (1) The review division may, subject to the approval of the Lieutenant-Governor in Council, in relation to the review of decisions as referred to in section 26, prescribe rules of procedure and evidence and may order the type and nature of information to be provided by a person to a review commissioner before or during a review and that person shall provide the information to the review commissioner.

(2) For the purpose of the review of a decision as referred to in section 26, a review commissioner has the powers that are conferred on a commissioner under the Public Inquiries Act, and a review commissioner is considered to be an "investigating body" for the purpose of the Public Investigations Evidence Act, and there shall be full right to examine and cross-examine witnesses called to bring forward evidence in response and reply, and section 3 of the Public Inquiries Act shall apply to those witnesses.

Application to review commissioner

28. (1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1).

(2) A review commissioner shall not review a decision under subsection (1) except in accordance with subsection 26(1).

(3) The commission shall have standing and may be heard and make representations itself or through an agent acting on its behalf on a matter being reviewed by a review commissioner and at further proceedings arising out of that matter.

(4) The chief review commissioner or a review commissioner to whom a matter has been referred for review shall

(a) notify the person seeking a review of a decision of the commission and the commission of the time and place of that review;

(b) review the matter; and

(c) confirm or deny that the decision of the commission was in accordance with this Act, the regulations and policy established by the commission under subsection 5(1), and shall order the remedy that he or she considers necessary.

(5) A person who applies for a review under subsection (1) may appear before the review commissioner on his or her own behalf or be represented by counsel or an agent and may accompany and appear with the counsel or agent before the review commissioner.

(6) Where a person other than a person applying for a review under subsection (1), has an interest in a matter before the review commissioner, that person has the right to appear before the review commissioner either personally or to be represented by counsel or an agent and shall, after indicating in writing to the review commissioner an intention to appear, be notified of the time and place of the review of the matter.

(7) Where the person applying to the chief review commissioner under subsection (1), or a person referred to in subsection (6), fails to attend, in person or by counsel or agent, unless that failure to attend is due to circumstances beyond the person's control and that person has, by written notice, advised the review commissioner that the person wishes to attend and sets out, in the notice, the circumstances that prevent the attendance, the review commissioner may proceed to examine witnesses and to review and adjudicate on the matter being reviewed.

(8) The review commissioner shall, within 6 months after an application has been first made under subsection (1), communicate in writing its decision with reasons and any order that he or she may make to the commission and to a person who appeared before him or her.

Conflict of interest

29. A review commissioner may not review a matter under this Part if he or she has a direct personal interest in that matter or if the chief review commissioner determines there is a conflict of interest.

Annual report to House of Assembly

30. The review division shall, not later than March 31 in a year, submit to the minister a report of the proceedings of the review commissioners under this Act for the preceding calendar year, and the minister shall lay the report before the House of Assembly within 15 days after it is submitted, or where the House of Assembly is not then in session, within 15 days after the beginning of the next session.

5. Subsection 36(1) of the Act is amended by striking out the figure and word "34 or".

6. Section 37 of the Act is amended by striking out the words and figures "appeals and stated cases referred to in sections 34 and 35" and substituting the words and figures "stated cases referred to in section 35".

7. (1) Section 44.1 of the Act is amended by renumbering it as subsection (1) and by adding immediately after subsection (1) the following:

(2) In subsection (1) "motor vehicle" means

(a) a motor vehicle

(i) registered under the Highway Traffic Act, or

(ii) authorized under section 12 or 17 of the Highway Traffic Act to be operated on a highway in the province without being registered under that Act,

whether or not it is being operated on a highway; or

(b) another motor vehicle while being operated on a highway in the province and

for the purpose of this definition "highway" means a highway as defined in the Highway Traffic Act.

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

8. (1) Section 45 of the Act is amended by adding immediately after subsection (12) the following:

(13) The commission may, in an action brought under subsection (8), also recover amounts paid to or on behalf of a worker or his or her dependents by way of compensation, including amounts paid as medical expenses, rehabilitation expenses and other expenses paid by the commission to or on behalf of the worker or his or her dependents.

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

9. Subsection 74(2.4) of the Act is repealed.

10. (1) Subsection 81(1) of the Act is repealed and the following substituted:

Benefits to be considered

81. (1) In fixing the amount of a weekly or monthly payment, regard shall be had to a payment, allowance or benefit which the worker may receive from his or her employer during the period of his or her disability.

(2) Section 81 of the Act is further amended by adding immediately after subsection (4) the following:

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

(3) Subsections (1) and (2) are considered to have come into force on January 1, 1984.

11. The Act is amended by adding immediately after section 90 the following:

Industrial disease compensation

90.1 (1) A worker or his or her dependents are entitled to compensation under section 90 or 91 notwithstanding that the worker is not employed at the date of disablement.

(2) The amount of compensation payable under section 90 or 91 to a worker or his or her dependents referred to in subsection (1) shall be calculated, in accordance with section 74, on the basis of the worker's average weekly net earnings in his or her last trade, occupation, profession or calling prior to the date of disablement, adjusted to the date of disablement by the application of the Consumer Price Index for Canada as published by Statistics Canada.

(3) This section comes into force on January 1, 1994 and, notwithstanding a worker's date of disablement is before January 1, 1994, a worker or his or her dependents is only entitled to compensation from January 1, 1994.

Transitional

12. (1) An appeal commenced in accordance with Part II of the Act on or before June 30, 1994 shall continue to be heard in accordance with Part II as it exists on June 30, 1994 provided that

(a) an appeal tribunal acting under that Part has commenced hearings on and is seized with the matter before it; and

(b) the matter under appeal is completed within 90 days after July 1, 1994.

(2) An appeal to which paragraphs (1)(a) and (b) do not apply shall be heard in accordance with the review procedure of Part II of the Act as it exists on July 1, 1994 as if the appeal were an application made under subsection 28(1) on that date.

Commencement

13. Sections 1 to 6 of this Act shall commence on July 1, 1994.

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