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Statutes of Newfoundland 1998


CHAPTER 19

AN ACT TO AMEND THE WORKERS’
COMPENSATION ACT

(Assented to December 15, 1998)

Analysis

1. Long Title R&S

2. S.1 R&S
Short title

3. S.2 Amdt
Interpretation

4. S.3 R&S
Commission continued

5. S.4 Amdt.
Board of directors

6. S.5(1) Amdt.
Duties and powers

7. PART I.1 Added
PART I.1
WORKPLACE
HEALTH
AND SAFETY

20.1 Application of Part
20.2 Duties of commission
20.3 Cooperation between
commission and
division
20.4 Administration costs
20.5 Research fund
20.6 Regulations

8. S.28 Amdt.
Application to review
commissioner

9. S.28.1 Added
Application for
reconsideration

10. S.40(1)(g) Added
Coverage of certain
workers

11. S.53(1) R&S
Notice of accident

12. S.54 R&S
54. Failure to give
notice
54.1 Mitigation of injury
54.2 Co-operation in
rehabilitation

13. S.58.1 Added
Medical information

14. S.75(1) R&S
Annuity at 65

15. S.81(3.1)-(3.3) Added
Benefits to be considered

16. S.83.1 Added
Overpayment of
compensation

17. S.113 R&S
Change of ownership

18. Ss.118.1 and 118.2 Added
118.1Directors’ liability
118.2Amount in default

19. S.122(2) R&S
Assessment as lien

20. RSN1990 cO-3
Amdt.

21. Commencement

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


RSN1990 cW-11 as amended

1. The Long Title to the Workers’ Compensation Act is repealed and the following substituted:

AN ACT RESPECTING THE HEALTH AND SAFETY OF WORKERS AND THE COMPENSATION OF WORKERS FOR INJURIES SUFFERED IN THE COURSE OF THEIR EMPLOYMENT

2. Section 1 of the Act is repealed and the following substituted:

Short title

1. This Act may be cited as the Workplace Health, Safety and Compensation Act.

3. (1) Section 2 of the Act is amended by renumbering it as subsection 2(1).

(2) Paragraph 2(1)(d) of the Act is repealed and the following substituted:

(d) "commission" means the Workplace Health, Safety and Compensation Commission continued under section 3;

(3) Paragraph 2(1)(o) of the Act is repealed and the following substituted:

(o) "injury" means

(i) an injury as a result of a chance event occasioned by a physical or natural cause,

(ii) an injury as a result of a wilful and intentional act, not being the act of the worker,

(iii) disablement,

(iv) industrial disease, or

(v) death as a result of an injury

arising out of and in the course of employment and includes a recurrence of an injury and an aggravation of a pre-existing condition but does not include stress other than stress that is an acute reaction to a sudden and unexpected traumatic event;

(5) Section 2 of the Act is further amended by adding immediately after subsection (1) the following:

(2) Notwithstanding paragraph (1)(o), stress that may be the result of an employer’s decision or action relating to the employment of a worker including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker’s employment does not constitute an injury.

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

Commission continued

3. The Worker’s Compensation Commission is continued as a corporation under the name of the Workplace Health, Safety and Compensation Commission.

5. Subsections 4(1), (2) and (3) of the Act are repealed and the following substituted:

Board of directors

4. (1) The Lieutenant-Governor in Council shall appoint a board of directors of the commission who shall be responsible for the administration of this Act.

(2) The board of directors shall comprise

(a) 3 persons representative of employers;

(b) 3 persons representative of workers;

(c) 3 persons representative of the general public; and

(d) one person who shall be appointed as the chairperson.

(3) An employee of the department designated by the minister and the chief executive officer of the commission shall be members of the board of directors but shall not vote on a matter.

(3.1) Where the term of office of a member of the board of directors expires, he or she continues to be a member until re-appointed or replaced.

6. Subsection 5(1) of the Act is amended by striking out the word "and" at the end of paragraph (b), striking out the comma at the end of paragraph (c) and substituting a semi-colon and the word "and" and by adding immediately after paragraph(c) the following:

(d) Part I.1

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

PART I.1

WORKPLACE HEALTH AND SAFETY

Application of Part

20.1 (1) This Part applies to workplaces to which, and to workers and employers to whom, the Occupational Health and Safety Act applies.

(2) Notwithstanding section 2, words used in this Part that are defined in the Occupational Health and Safety Act have the meaning given to them by that Act.

Duties of commission

20.2 In order to promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and diseases the commission shall

(a) promote public awareness of workplace health and safety;

(b) educate employers, workers and other persons about workplace health and safety;

(c) provide services to occupational health and safety committees and worker health and safety representatives established or appointed under the Occupational Health and Safety Act;

(d) promote and provide funding for workplace health and safety research;

(e) develop standards for the certification of persons required to be certified under the Occupational Health and Safety Act and approve training programs for certification;

(f) certify persons who meet the standards referred to in paragraph (e);

(g) foster commitment to workplace health and safety among employers, workers and other persons; and

(h) make recommendations to the department respecting workplace health and safety.

Cooperation between commission and division

20.3 The commission shall co-operate with the occupational health and safety division of the department, including the provision of information to the division, where it is necessary to give effect to this Part and the Occupational Health and Safety Act.

Administration costs

20.4 The commission shall pay from its assessment and revenue income the cost of the occupational health and safety division in the department and the cost of annual grants made by the minister under section 64 of the Occupational Health and Safety Act to a maximum of 5% of its total assessment and investment income in each calendar year.

Research fund

20.5 (1) The commission shall allocate a maximum of 2% of its total assessment and investment income in each calendar year to establish and maintain a special fund for the purpose of workplace health and safety research.

(2) The commission shall administer the fund referred to in subsection (1) and approve expenditures for workplace health and safety research.

Regulations

20.6 The commission, subject to the approval of the Lieutenant-Governor in Council, may make regulations to give effect to this Part.

8. Subsection 28(8) of the Act is amended by striking out the number "6" and substituting the number "3".

9. The Act is amended by adding immediately after section 28 the following:

Application for reconsideration

28.1 (1) A worker, dependent, employer or the commission may apply, in writing, to the chief review commissioner for a reconsideration of a decision of a commissioner.

(2) An application under subsection (1) shall be made within one month of receipt of the decision that is the subject of the reconsideration being given.

(3) The chief review commissioner, after reviewing the application, may in his or her discretion order that the decision be reconsidered.

(4) The decision of the chief review commissioner, or another commissioner where the reconsideration is conducted by another commissioner, on an application for reconsideration of a decision shall be given within 2 months of the date of the application.

(5) The chief review commissioner shall notify all the parties to which the request for a reconsideration relates of the request within 10 days of receiving it.

10. Subsection 40(1) of the Act is amended by striking out the word "and" at the end of paragraph (e), by striking out the comma at the end of paragraph (f) and substituting a semicolon and the word "and" and by adding immediately after paragraph (f) the following:

(g) volunteers providing community ambulance services,

11. (1) Subsection 53(1) of the Act is repealed and the following substituted:

Notice of accident

53. (1) Compensation is not payable in relation to a worker unless

(a) he or she, or another person on behalf of the worker, gives notice of the injury to his or her employer immediately after the occurrence of the injury and before he or she has voluntarily left the employment in which he or she was injured; and

(b) the claim for compensation is made

(i) within 3 months from the occurrence of the injury,

(ii) in the case of an industrial disease, within 3 months after the worker knew, or ought reasonably to have known, that he or she suffers from the disease, and

(iii) in case of death, within 6 months after the date of death.

12. Section 54 of the Act is repealed and the following substituted:

Failure to give notice

54. Notwithstanding section 53, failure to give the notice or to make a claim or a defect or inaccuracy in the notice does not bar the right to compensation where, in the opinion of the commission, the failure, defect or inaccuracy was due to circumstances beyond the worker’s control and the employer was not prejudiced by the failure, defect or inaccuracy.

Mitigation of injury

54.1 (1) A worker shall

(a) take all reasonable steps to reduce or eliminate a permanent impairment and loss of earnings resulting from an injury;

(b) seek out and co-operate in any medical aid or treatment that, in the opinion of the commission, promotes the worker’s recovery and return to work;

(c) take all reasonable steps to provide to the commission full and accurate information on a matter relevant to a claim for compensation; and

(d) notify the commission immediately of a change in circumstances that affects or may affect the worker’s initial or continuing entitlement to compensation.

(2) The commission may suspend, reduce or terminate any compensation otherwise payable to a worker where the worker fails to comply with subsection (1).

Co-operation in rehabilitation

54.2 (1) A worker shall, where rehabilitation is offered by the commission, co-operate with the commission in the development and implementation of a rehabilitation program.

(2) The commission may suspend, reduce or terminate compensation made to a worker where the worker fails to co-operate in the development or implementation of a rehabilitation program.

13. The Act is amended by adding immediately after section 58 the following:

Medical information

58.1 (1) Where the commission receives a request from a worker’s employer for medical information related to an injured worker and the commission believes that providing the information to the employer is reasonably necessary for the determination of the worker’s fitness to return to work, the commission may provide the information to the employer.

(2) Where the commission provides an employer with information about a worker under subsection (1), the worker is considered to have consented to the provision of the information.

(3) The commission shall inform a worker where it provides information about him or her to his or her employer under subsection (1)".

14. Subsection 75(1) 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 the Quebec 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, 1997 or an equivalent Act of another province or of the Parliament of Canada shall be paid to him or her by the commission.

15. (1) Section 81 of the Act is amended by adding immediately after subsection (3) the following:

(3.1) Effective September 1, 1998, a benefit, relative to an injury, that a worker is entitled to receive under the Canada Pension Plan or the Quebec Pension Plan shall be offset from the compensation payable to the worker for loss of earnings at a rate of 75% of the net benefit.

(3.2) Subsection (3.1) does not apply where a worker’s Canada Pension Plan or Quebec Pension Plan benefits are considered as wages and offset from the worker’s gross pre-injury earnings under the application of subsection (4).

(3.3) Effective September 1, 1998, 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 Pensions Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada shall be offset from the compensation payable to the worker for loss of earnings at a rate of 75% of the net benefit.

(2) Subsections 81(3) and (4) of the Act are amended by adding immediately after the words "Canada Pension Plan" the words "or Quebec Pension Plan".

(3) Subsection 81(5) of the Act is amended by striking out the words Pension Benefits Act" and substituting the words and figure "Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada".

16. The Act is amended by adding immediately after section 83 the following:

Overpayment of compensation

83.1 (1) Where the commission determines that an amount of compensation paid to a worker, or to another person, as a result of an injury to the worker, by the commission exceeds the amount to which the worker, or other person, is entitled, the commission may recover the overpayment from the worker or the worker’s estate as a debt due the commission by action in a court.

(2) In an action begun as a result of a determination by the commission that it has made an overpayment of compensation, the court does not have jurisdiction to determine whether an overpayment occurred or the amount of the overpayment.

17. Section 113 of the Act is repealed and the following substituted:

Change of ownership

113. (1) Where the business or undertaking, or a part of the business or undertaking, of an employer in relation to which an assessment is unpaid

(a) is sold, leased, transferred or disposed of;

(b) has changed ownership or reincorporated, or restructured in another way; or

(c) has been dealt with in another manner which, in the opinion of the commission, is intended to avoid obligations under this Act,

the commission may

(d) determine that a person is the successor of the employer; and

(e) levy and collect from the person the amount of an assessment unpaid by the employer at the time of an event referred to in paragraph (a), (b) or (c).

(2) An amount required to be paid under paragraph (1)(e) may be collected by the commission in the same manner as an assessment may be collected under this Act and section 122 applies in respect to that amount.

18. The Act is amended by adding immediately after section 118 the following:

Directors’ liability

118.1 (1) Where a corporation defaults in the payment of an assessment, or an amount levied under section 113, or a part of it, the directors of the corporation, at the time the corporation defaults, are jointly and individually liable, together with the corporation to pay the amount.

(2) A director of a corporation is liable under subsection (1) where,

(a) a certificate for the amount of the corporation’s liability referred to in that subsection has been filed under section 118 and execution for that amount has been returned unsatisfied in whole or in part;

(b) the corporation has begun liquidation or dissolution proceedings or has been dissolved and the amount of the corporation’s liability referred to in subsection (1) has not been paid within 6 months after a notice of intent to dissolve is filed under section 337 of the Corporations Act after the commencement of liquidation or dissolution proceedings; or

(c) the corporation has made an assignment or a receiving order has been made against it under the Bankruptcy and Insolvency Act (Canada) and a claim for the amount of the corporation’s liability referred to in subsection (1) has not been paid within 6 months after the date of the assignment or receiving order.

(3) A director is not liable for an amount payable under subsection (1) unless the claim against the director is made not later than 4 years after he or she last ceased to be a director of the corporation.

(4) The liability of a director under subsection (1) is for the total amount owing by the corporation and is not reduced by a proposal respecting or restructuring of or discharge of the liability of the corporation under the Bankruptcy and Insolvency Act (Canada) or other legislation.

(5) Where a director of a corporation pays an amount in respect of a corporation’s liability referred to in subsection (1) in liquidation, dissolution or bankruptcy proceedings, the director is entitled to the same priority as the commission would have been entitled to had the amount not been paid, subject to the commission’s liability being satisfied, and, where a certificate that relates to the amount has been registered, the director is entitled to an assignment of the certificate to the extent of the director’s payment, and the commission is empowered to make that assignment.

(6) A director who satisfies a claim under this section is entitled to contribution from the other directors who were liable for the claim.

(7) Subsection 118(1) applies, with the necessary changes, where a director fails to pay an amount for which he or she is liable under this section.

Amount in default

118.2 An amount certified as being in default by a person under section 118 is until paid a first lien upon the entire assets of the person and has priority over all other claims except a claim for unpaid wages under the Labour Standards Act and a mechanics lien registered under the Mechanics’ Lien Act.

19. Subsection 122(2) of the Act is repealed and the following substituted:

(2) Notwithstanding paragraph 124(d), the amount of an assessment or a judgment entered in relation to an assessment, is a first lien upon

(a) all property, real and personal, of the person to whom the assessment is charged, whether or not that property is used in or in connection with or produced by or in the industry in respect to which the employer is assessed; and

(b) all property used in or in connection with or produced in or by the industry for which the employer has been assessed that is owned by another person

subject to municipal taxes and a lien with respect to wages under the Mechanics’ Lien Act.

RSN1990 cO-3 Amdt.

20. (1) Section 19 of the Occupational Health and Safety Act is amended by adding immediately after subsection (2) the following:

(3) The division shall co-operate with the Workplace, Health, Safety and Compensation Commission, including the provision of information to the commission, where it is necessary for the purpose of this Act and Part I.1 of the Workplace, Health, Safety and Compensation Act.

(2) Paragraphs 25(c), (d) and (e) of the Act are repealed.

(3) Paragraph 49(c) of the Act is repealed and the following substituted:

(c) because the worker has given information to the Workplace, Health, Safety and Compensation Commission, an officer or another person concerned with the administration of the Act or the regulations concerning the health, safety and welfare of workers at his or her workplace; or

(4) Section 64 of the Act is repealed and the following substituted:

Grant by minister

64. The minister may pay out of the money or funds referred to in section 20.4 of the Workplace, Health, Safety and Compensation Act an annual grant to an association established to promote or involved in promoting occupational health and safety in the province.

(5) Paragraphs 65(1)(f) and (z) of the Act are repealed.

Commencement

21. (1) This Act, with the exception of section 15, comes into force on January 1, 1999.

(2) Section 15 of this Act is considered to have come into force on September 1, 1998.

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