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Copyright 2000: Queens Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER W-11

AN ACT RESPECTING COMPENSATION TO WORKERS FOR INJURIES SUFFERED IN THE COURSE OF THEIR EMPLOYMENT

Analysis

1. Short title

2. Definitions

PART I
THE WORKERS'
COMPENSATION
COMMISSION

3. Workers' Compensation Commission

4. Board of directors

5. Duties and powers

6. Chief executive officer

7. Officers and staff

8. Offices and administration

9. Property of commission

10. Financial power

11. Audits of commission and appeal tribunal

12. Annual report

13. Business

14. Action barred

15. Power of directors

16. Inquiries by commission

17. Power re examinations

18. Information confidential

19. Exclusive jurisdiction

20. Public hearing

PART II
APPEALS

21. Workers' Compensation Appeal Tribunal

22. Chairperson of appeal tribunal

23. Employees

24. Expenses of appeal tribunal

25. Jurisdiction of appeal tribunal

26. Composition of panels

27. Jurisdiction of panels

28. Board of directors and appeal tribunal

29. Rules of appeal tribunal

30. Appeal to tribunal

31. Liability of appeal tribunal members

32. Conflict of interest

33. Annual report to House of Assembly

34. Appeal from board

35. Stated case

36. Rules for appeal

37. Notification of appeals, etc.

PART III
APPLICATION OF ACT

38. Application of Act

39. Employer covered

40. Coverage for particular workers

41. Independent operator

42. Work training programs

PART IV
COMPENSATION AND RIGHT OF ACTION

43. Compensation payable

44. Compensation instead of action

45. Where action allowed

46. Commission decides if action prohibited

47. Length of disability

48. Residency requirement

49. Compensation to non-residents

50. Move outside province

51. Injury outside province

52. No waiver of benefits

53. Notice of accident

54. Failure to give notice

55. Application for compensation

56. Duties of employer

57. Duties of doctor

58. Medical records

59. Claim investigated

60. Proof required

61. Presumption

62. Medical examination required

63. Objection to claim

64. Power to review compensation

65. Compensation where fatal accident

66. Method of payment

67. Compensation may be apportioned

68. Compensation may be withheld

69. Compensation unpaid at death

70. Household to be continued

71. Where spouse remarries

72. Payments to children

73. Compensation for disability

74. Lost earning capacity

75. Annuity at age 65

76. Earning capacity reviewed

77. Recurrence of injury

78. Minimum compensation

79. Rescue work

80. Calculation of earnings

81. Benefits to be considered

82. Payment of compensation

83. Compensation not assignable

PART V
MEDICAL AID

84. Where medical aid needed

85. Medical aid

86. Re contributions for medical aid

87. First medical treatment

PART VI
REHABILITATION

88. Rehabilitation

89. Education or retraining

PART VII
INDUSTRIAL DISEASES

90. Industrial disease

91. St. Lawrence

92. Medical committees

PART VIII
INJURY FUND AND
ASSESSMENTS

93. Injury fund

94. Classes of industry

95. Subclasses

96. Merit rating

97. Assessment rated on payroll

98. Manner of assessment

99. Employer to pay assessments

100. When assessment due

101. Information may be required

102. Calculation of payroll

103. No deduction from wages

104. Commission may estimate

105. Credit balance due employer

106. Charges to other classes

107. Cost of medical investigations

108. Where assessment insufficient

109. Arrangement with other provinces

110. Arrangement with self-insurers

111. Where industry temporary

112. Former employers

113. Change of ownership

114. Effect of refusal

115. Accounts within fund

116. Reserves within fund

117. Payment in arrears

118. Where default

119. Board may withhold money

120. Assessment where work contracted

121. Mechanics' Lien Act

122. Assessment as lien

PART IX
REGULATIONS

123. General regulations

124. Regulations re fishers

PART X
PENALTY

125. Penalty

PART XI
REVIEW

126. Review committee


Short title

1. This Act may be cited as the Workers' Compensation Act.

1983 c48 s1

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Definitions

2. In this Act

(a) "appeal tribunal" means the Workers' Compensation Appeal Tribunal established under section 21;

(b) "board of directors" means the board of directors appointed under section 4;

(c) "class" means the class into which an industry has been assigned on the division of industries into classes under section 94;

(d) "commission" means the Workers' Compensation Commission continued by section 3;

(e) "compensation" means compensation paid in accordance with this Act to a worker or his or her dependents in respect of an injury;

(f) "dependent" means a member of the family of a worker who is wholly or partly dependent upon his or her earnings at the time of the death of the worker or who, but for the incapacity due to the injury, would have been so dependent;

(g) "director" means a director of the board of directors;

(h) "earnings" includes a share or portion of proceeds or profits referred to in subparagraph (z)(i);

(i) "educational institution" means those institutions so prescribed by the regulations;

(j) "employer" means an employer to whom this Act applies and who is engaged in, about or in connection with an industry in the province and includes

(i) a person having in his or her service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in a work in or about an industry within the scope of this Act,

(ii) the principal, contractor and subcontractor referred to in section 120,

(iii) in respect of an industry referred to in subparagraph (i) a receiver, liquidator, executor, administrator and a person appointed by a court or a judge who has authority to carry on an industry,

(iv) a municipality,

(v) the Crown in right of Canada where it may in its capacity of employer submit to the operation of this Act,

(vi) the Crown and a permanent board or commission of the Crown where the province may in its capacity of employer submit itself or a board or commission to the operation of this Act, and

(vii) in respect to the industry of fishing, whaling or sealing, the managing owner or person operating a boat, vessel or ship employed or intended to be employed in the industry;

(k) "employment" means and refers to the whole or a part of an establishment, undertaking, work, operation, trade or business within the scope of this Act, and in the case of an industry not as a whole within the scope of this Act includes a department of part of the industry that would if carried on separately be within the scope of this Act;

(l) "fishing" means fishing for gain, other than for sport, in tidal waters, and

(i) includes fishing for anadromous fish while in those waters,

(ii) is considered to include work performed in the functioning, while fishing or proceeding to or returning from fishing, of the vessel used for fishing, and

(iii) is considered to include other work incidental to or connected with fishing usually performed by persons engaged in fishing;

(m) "industrial disease" means a disease prescribed by regulation under section 90 and another disease peculiar to or characteristic of a particular industrial process, trade or occupation;

(n) "industry" includes the whole or a part of an industry, operation, undertaking, establishment, work, trade or business that is not excluded by section 38;

(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;

(p) "injury fund" means the fund referred to in section 93;

(q) "invalid" means physically or mentally incapable of earning financial remuneration;

(r) "medical aid" means medical, surgical and dental aid, hospital and skilled nursing services and a prothesis or apparatus and the repairing and replacement of them, transportation and other matters and things that the commission may authorize or provide;

(s) "member of the family" includes spouse, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister and a person who stood in place of a parent to the worker or to whom the worker stood in place of a parent, whether related to him or her by consanguinity or not, and where the worker is the parent or grandparent of an illegitimate child, includes that child and where the worker is an illegitimate child, includes his or her parents and grandparents;

(t) "minister" means the Minister of Employment and Labour Relations;

(u) "municipality" includes the City of St. John's, the City of Corner Brook, the City of Mount Pearl, the St. John's Metropolitan Area and a town, community, region and local service district, established or continued under the Municipalities Act;

(v) "net earnings" of a worker means his or her average earnings while employed in the industry in which the worker was injured, less the total of

(i) unemployment insurance contributions for those earnings,

(ii) Canada Pension Plan contributions for those earnings, and

(iii) probable income tax deductions for those earnings based on appropriate annual tables produced by Revenue Canada;

(w) "settlement" means a settlement whether or not it was made before or after an action has been started in a court;

(x) "spouse" means either of a man or woman who

(i) are married to each other,

(ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity,

(iii) have gone through a form of marriage with each other, in good faith, that is void and are cohabiting or have cohabited within the preceding year, or

(iv) have not gone through a form of marriage but who are cohabiting

(A) for a period of not less than 1 year, where they have 1 or more children as a result of that union,

(B) for a period of not less than 3 years, where they do not have children, or

(C) for a period where they have entered into a written agreement, in which they agree on their respective rights and obligations during cohabitation, upon ceasing to cohabit or upon the death of either of them;

(y) "work training program" means a training program prescribed by the regulations; and

(z) "worker" means a worker to whom this Act applies and who is a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes

(i) in respect of the industry of fishing, whaling or sealing, a person who becomes a member of the crew of a boat, vessel or ship under an agreement to prosecute a fishing, whaling or sealing voyage in the capacity of a person receiving a share of the voyage or is described in the Shipping Articles as a person receiving a share of the voyage or agrees to accept in payment for his or her services a share or portion of the proceeds or profits of the venture, with or without other remuneration, or is employed on a boat, vessel or ship provided by the employer,

(ii) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment,

(iii) a part-time or casual worker, and

(iv) an executive officer, manager or director of an employer.

1983 c48 s2; 1984 c40 Sch B; 1985 c31 s1;
1986 c38 s1; 1988 c35 s443(23); 1989 c25 Sch B

PART I
THE WORKERS' COMPENSATION
COMMISSION

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Workers' Compensation Commission

3. The Workers' Compensation Commission is continued as a corporation.

1983 c48 s3

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Board of directors

4. (1) There shall be a board of directors responsible for the administration of this Act, which shall consist of not less than 7 nor more than 11 members appointed by the Lieutenant-Governor in Council, 1 of whom shall be appointed chairperson and 1 of whom shall be appointed vice-chairperson.

(2) Members of the board of directors shall be appointed from representatives of workers, employers and the public so long as the number of representatives of workers is equal to the number of representatives of employers.

(3) The chairperson of the appeal tribunal and the chief executive officer of the commission shall be members, by virtue of their offices, of the board of directors but shall not vote on a matter.

(4) The terms of office, remuneration, benefits and expenses of the directors shall be determined by the Lieutenant-Governor in Council and the remuneration, benefits and expenses shall be part of the administrative expenses of the commission.

(5) In the absence of the chairperson or where the office of the chairperson is vacant or the chairperson is unable to act, the powers and duties of the chairperson shall be performed by the vice-chairperson and where it appears that the vice-chairperson acted for the chairperson it shall be presumed that the person was acting in the absence or disability of the chairperson or where there is a vacancy in the office of the chairperson.

1986 c38 s2; 1987 c41 s24

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Duties and powers

5. (1) The board of directors shall establish policies and programs consistent with this Act and regulations in relation to

(a) compensation benefits to injured workers and dependents;

(b) rehabilitation of injured workers; and

(c) assessments and investments under this Act,

and the policies shall ensure the intent of this Act and regulations is being applied to provide services to injured workers and dependents and shall promote adequate funding for the services through sound financial management.

(2) The board of directors shall

(a) consider and approve annual administrative and operating budgets and appoint auditors to audit the books and accounts of the commission, in addition to those audits that may be done under section 11;

(b) enact by-laws and regulations for the adoption of a seal and for the conduct of the business and affairs of the commission;

(c) establish, maintain and regulate advisory committees and their function and composition; and

(d) review this Act and regulations and recommend to the minister those changes that it considers advisable.

(3) The board of directors may delegate in writing the powers of the board of directors to a director and the powers may be subject to the limitations, conditions and requirements that may be noted in the delegation.

1986 c38 s2

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Chief executive officer

6. The Lieutenant-Governor in Council shall 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.

1986 c38 s2

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Officers and staff

7. (1) The board of directors shall appoint as employees of the commission, and prescribe the duties of, those persons that the board of directors considers necessary for carrying out this Act.

(2) The board of directors shall designate the classifications of persons appointed under subsection (1) and may pay their salaries out of the injury fund.

(3) The board of directors may delegate the powers of administration to those of the employees of the commission that it thinks advisable.

1983 c48 s7; 1986 c38 Sch

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Offices and administration

8. (1) The head offices of the commission shall be in the City of St. John's and the commission may set up offices in other parts of the province.

(2) Expenses incurred in the administration of this Act shall be paid out of the injury fund, but where an expenditure exceeds the amount that may be prescribed by the Lieutenant-Governor in Council, his or her prior written approval is required for the expenditure.

1983 c48 s8

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Property of commission

9. The commission may

(a) acquire by purchase, gift or otherwise property;

(b) erect the buildings that it considers necessary for its purposes; and

(c) sell, lease or deal in another manner with its real property,

but in relation to real property, where an acquisition, sale, lease or dealing has a value greater than the amount prescribed the approval of the Lieutenant-Governor in Council is required.

1983 c48 s9

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Financial power

10. (1) The commission may

(a) invest funds arising under this Act and other money under its control in accordance with subsection (3) and sell securities and reinvest the proceeds in accordance with subsection (3) or use the proceeds for other purposes authorized by this Act;

(b) place its funds and money on deposit in a chartered bank; and

(c) with the approval of the Minister of Finance, borrow, by way of overdraft or otherwise, from a chartered bank sums that, in the opinion of the commission, may be considered expedient for the proper carrying out of this Act.

(2) The funds, investments and income of the commission are free from taxation.

(3) Funds of the commission may be invested only in investments and loans in which an insurance company governed by the Canadian and British Insurance Companies Act (Canada) may invest its funds under sections 86, 88, 91, 92 and 97 of that Act.

1983 c48 s10; 1986 c38 s3

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Audits of commission and appeal tribunal

11. (1) The Lieutenant-Governor in Council may appoint an auditor to audit the accounts of the commission and the appeal tribunal and the remuneration of the auditor shall be paid by the commission or the appeal tribunal.

(2) The auditor general shall audit the accounts of the commission and the appeal tribunal whenever he or she considers it expedient to do so.

1987 c41 s24

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Annual report

12. (1) The commission shall before April 1 in a year make a report to the minister of its transactions during the preceding calendar year and the report shall contain those particulars which the Lieutenant-Governor in Council may order.

(2) The minister shall lay the report made to him or her under subsection (1) before the House of Assembly within 15 days after it is made if the House of Assembly is then in session and, if not, then within 15 days after the beginning of the next session.

1983 c48 s12

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Business

13. The board of directors shall sit at the times and conduct its proceedings in a manner that it may consider most convenient for the proper discharge and speedy dispatch of business.

1983 c48 s13; 1986 c38 Sch

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Action barred

14. An action for damages shall not be brought in a court of law against the commission or a director in respect of anything done by it, him or her beyond the jurisdiction as conferred by this Act if it was done in the good faith belief that it was within its, his or her jurisdiction.

1983 c48 s14; 1986 c38 Sch

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Power of directors

15. (1) The directors have the powers that are conferred on a commissioner under the Public Inquiries Act.

(2) The commission may enter into agreements with other persons that are, in the opinion of the board of directors, advisable for carrying out this Act.

1983 c48 s15; 1986 c38 Sch

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Inquiries by commission

16. (1) The board of directors may act upon the report of an employee of the commission, and an inquiry which it considers necessary to make may be made by 1 of the directors or by an employee of the commission or some other person appointed by the board of directors to make the inquiry, and the board of directors may act upon his or her report as to the result of the inquiry.

(2) A person appointed under subsection (1) to make an inquiry has for the purposes of the inquiry the powers conferred upon the directors by subsection 15(1).

1983 c48 s16; 1986 c38 Sch

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Power re examinations

17. (1) A director or person authorized by the commission may make the examination or inquiry into a matter that the commission considers necessary for the purpose of this Act.

(2) A person acting under subsection (1) may

(a) require and take affidavits, affirmations or declarations as to a matter of the examination or inquiry and administer oaths and affirmations and take declarations and certify that they have been made; and

(b) enter, at reasonable hours, an establishment or premises where it is necessary to conduct an examination or inquiry under subsection (1).

1983 c48 s17; 1986 c38 Sch

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Information confidential

18. (1) An employee of the commission or a person authorized to make an inquiry under this Act shall not divulge, except in the performance of his or her duties or under the authority of the board of directors, information obtained by him or her or which has come to his or her knowledge in making or in connection with an inspection or inquiry under this Act.

(2) Notwithstanding subsection (1), the board of directors may permit the divulging to legal counsel or another authorized representative either of a person seeking compensation or of another interested party of information referred to in subsection (1) or other information contained in the records or files of the commission.

1983 c48 s18; 1986 c38 Sch

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Exclusive jurisdiction

19. (1) The commission has exclusive jurisdiction to examine, hear and determine matters and questions arising under this Act and a matter or thing in respect of which a power, authority or distinction is conferred upon the commission, and the commission has exclusive jurisdiction to determine

(a) whether an injury has arisen out of and in the course of an employment within the scope of this Act;

(b) the existence and degree of disability because of an injury;

(c) the permanence of disability because of an injury;

(d) the degree of diminution of earning capacity because of an injury;

(e) the amount of average earnings;

(f) the existence of the relationship of a member of the family of a worker as defined by this Act;

(g) the existence of dependency;

(h) the class to which an industry or a part, branch or department of the industry should be assigned;

(i) whether a worker in an industry is within the scope of this Act and entitled to compensation under the Act;

(j) whether or not, for the purpose of this Act, a person is a worker, subcontractor or an employer; and

(k) whether a particular disease is peculiar to, or characteristic of, a particular industrial process, trade or occupation to which this Act applies.

(2) Subject to Part II, an action or decision of the commission is final and conclusive and is not open to question or review in a court of law and proceedings by or before the commission shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise into a court of law.

(3) Nothing in subsection (1) or (2) shall be construed to prevent the commission from reconsidering a matter which has been dealt with by it or from rescinding, altering or amending a decision or order previously made by it.

(4) The decisions of the commission shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent.

1983 c48 s19; 1986 c38 s4

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Public hearing

20. (1) A person interested in a decision to be made by the commission is entitled on application to a public hearing before the decision is made by the commission.

(2) A public hearing held under subsection (1) shall be held in the manner and within the time that the commission may prescribe.

(3) An individual, corporation or body of persons appearing at a hearing shall have a right to appear and be represented.

1983 c48 s20

PART II
APPEALS

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Workers' Compensation Appeal Tribunal

21. (1) There shall be an appeal tribunal known as the Workers' Compensation Appeal Tribunal consisting of as many members as may be prescribed, 1 of whom shall be designated as chairperson and 1 or more shall be designated as vice-chairperson, to be appointed by the Lieutenant-Governor in Council.

(2) Excluding the chairperson, there shall be a number of members on the appeal tribunal representing workers equal to the number of members representing employers.

(3) The terms of office, remuneration, benefits and expenses of the members of the appeal tribunal shall be determined by the Lieutenant-Governor in Council and that remuneration, benefits and expenses shall be part of the administrative expenses of the appeal tribunal.

(4) Upon the end of a member's term of office, a member may be reappointed and where a member resigns or the term of office ends, in relation to a matter before the appeal tribunal in which the member was involved before the resignation or end, the member may continue to exercise the powers and perform the duties as if the member had not resigned or the term had not ended.

1986 c38 s5; 1987 c41 s24

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Chairperson of appeal tribunal

22. (1) The chairperson of the appeal tribunal is the chief executive officer and shall preside at appeals attended by the chairperson.

(2) In the absence of the chairperson or where the office of the chairperson is vacant or the chairperson is unable to act, the powers and duties of the chairperson shall be performed by a vice-chairperson and where it appears that a vice-chairperson acted for the chairperson it shall be presumed that the person was acting in the absence of disability of the chairperson or where there is a vacancy in the office of the chairperson.

1986 c38 s5; 1987 c41 s24

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Employees

23. The appeal tribunal may appoint those officers, employees and advisors that it considers necessary and subject to guidelines which the Lieutenant-Governor in Council may prescribe, the appeal tribunal may establish classifications, qualifications, terms of employment and benefits in relation to its officers, employees and advisors that it considers necessary.

1986 c38 s5

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Expenses of appeal tribunal

24. (1) Expenses incurred in the administration of the appeal tribunal, including those under section 23, shall be paid out of the Consolidated Revenue Fund and that fund shall be reimbursed by money from the injury fund.

(2) The appeal tribunal shall submit to the minister for approval the annual budget of the appeal tribunal.

1986 c38 s5

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Jurisdiction of appeal tribunal

25. (1) Notwithstanding the power of the commission to reconsider a matter, where the commission has made a final determination respecting a matter and the procedures established by the commission and this Act respecting a rehearing of the matter have been exhausted, the appeal tribunal may hear and has exclusive jurisdiction to dispose of appeals from actions or decisions of the commission respecting:

(a) an injured worker's or dependent's entitlement to compensation benefits;

(b) an injured worker's entitlement to rehabilitation services and benefits;

(c) provision of medical care;

(d) an employer's assessments;

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

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

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

(3) The appeal tribunal may for cause reconsider a matter that has been dealt with by it and may rescind, alter or amend a decision or order previously made by it.

(4) The decisions of the appeal tribunal shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent.

1986 c38 s5

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Composition of panels

26. (1) The chairperson may establish 1 or more panels of the appeal tribunal and in respect of matters referred to a panel by the chairperson a panel has and shall exercise the power and authority of the appeal tribunal, and 2 or more panels may proceed with separate matters at the same time.

(2) The chairperson shall preside at meetings of the panel of which the chairperson is a member and a vice-chairperson shall preside at meetings of other panels.

(3) A panel consists of the chairperson, or a vice-chairperson where appointed by the chairperson, and 1 member representative of workers and 1 member representative of employers and a panel may not proceed or continue with a matter unless the 3 members are present.

(4) The chairperson may refer to a panel a matter that is before the appeal tribunal and to the appeal tribunal or another panel a matter that is before a panel.

(5) A panel stops existing where the matter it is considering is, in the opinion of the person acting as its chairperson, completed.

(6) A decision of a panel on a matter referred to it is a decision of the appeal tribunal.

1986 c38 s5

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Jurisdiction of panels

27. (1) The decision of a majority of the members of the appeal tribunal or of a panel represents the decision of the appeal tribunal.

(2) Where a question arises whether a matter is one referred to a panel, the question shall be determined by the panel in the 1st instance, subject to final determination by the chairperson of the appeal tribunal.

(3) Where a panel deals with an aspect of a matter referred to it, the rules and regulations made under this Act and applicable to the appeal tribunal in similar circumstances apply, with the necessary changes, to a panel.

1986 c38 s5

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Board of directors and appeal tribunal

28. (1) Where a matter to be decided by the appeal tribunal requires an interpretation of policy and general law before a decision being made, the board of directors shall review and determine the issue or interpretation of the policy and general law and the tribunal shall consider the matter in light of the interpretation or determination of the board of directors.

(2) Where the board of directors conducts a review, it shall either hold a hearing and give the parties likely to be affected by its determination an opportunity to make oral and written submissions or it shall permit the parties likely to be affected by its determination to make written submissions, as the board of directors may direct.

(3) The board of directors shall give its determination and direction under this section in writing together with its reasons for that determination and direction.

(4) Where the tribunal makes a decision which in the opinion of the commission is not consistent with established policy or the intent of this Act, the board of directors shall direct a review and determination as set out in subsections (1) to (3).

(5) Pending its determination, the board of directors, with respect to the decision that is the subject-matter of the review, may stay the enforcement or execution of the order made under the decision or may vacate the order where it has been implemented.

1986 c38 s5

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Rules of appeal tribunal

29. (1) The appeal tribunal may, subject to approval of the Lieutenant-Governor in Council, in relation to hearings prescribe rules of procedure and evidence and may order the type and nature of information to be provided by a person to the appeal tribunal before or during a hearing and that person shall provide the information to the appeal tribunal.

(2) Notwithstanding rules prescribed under subsection (1), the appeal tribunal or panel may receive or accept evidence and information on oath or affirmation, affidavit or otherwise that it considers appropriate, whether or not that evidence or information is admissible as evidence in a court of law.

(3) For the purpose of a hearing, an appeal tribunal, and a member of the appeal tribunal, has the powers that are conferred on a commissioner under the Public Inquiries Act, and an appeal tribunal is considered to be an "investigating body" for the purposes 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.

1986 c38 s5

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Appeal to tribunal

30. (1) In relation to a matter referred to in section 25 a person may, subject to and in accordance with the regulations, either personally or through an agent acting on the person's behalf with written consent, appeal to the appeal tribunal.

(2) Subject to the regulations, the appeal tribunal shall

(a) notify the person appealing a decision of the commission of the time and place of the hearing by the appeal tribunal;

(b) hear the appeal; and

(c) upon the conclusion of the hearing, confirm, vary or set aside the finding or decision of the commission.

(3) For the purpose of making an appeal to the appeal tribunal a person may appear before the appeal tribunal 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 appeal tribunal.

(4) Where a person other than a person appealing has an interest in a matter before the appeal tribunal, that person has the right to appear before the appeal tribunal either personally or as represented by counsel or an agent and shall after indicating in writing to the appeal tribunal an intention to appear be notified of the time and place of the hearing.

(5) Where the person appealing to the appeal tribunal or a person referred to in subsection (4) fails to attend, in person or by counsel or agent, the hearing of the appeal after being notified in accordance with this section, unless that failure to attend is due to circumstances beyond the person's control and that person has, by written notice, advised the appeal tribunal that the person wishes to attend and sets out, in the notice, the circumstances that prevent the attendance, the appeal tribunal may proceed to examine into the matter of the appeal and to hear the witnesses and adjudicate the matter.

(6) The appeal tribunal shall, as soon as possible after hearing a matter, communicate in writing its finding or decision with reasons to the commission and to a person who appeared before it immediately after that finding or decision is made.

1986 c38 s5

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Liability of appeal tribunal members

31. An action for damages shall not be brought in a court of law against the appeal tribunal or a member of the appeal tribunal in respect of anything done by it or the member beyond the jurisdiction as conferred by this Act if it was done in the good faith belief that it was within the jurisdiction of the appeal tribunal or the member.

1986 c38 s5

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Conflict of interest

32. A member of the appeal tribunal may not participate in the hearing of a matter in which that member has a direct personal interest or in which the chairperson determines there is a conflict of interest.

1986 c38 s5; 1987 c41 s24

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Annual report to House of Assembly

33. The appeal tribunal shall, not later than March 31 in a year, submit to the minister a report of its proceedings 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.

1986 c38 s5

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Appeal from board

34. (1) An appeal lies to the Trial Division from an order, ruling or decision of the commission or appeal tribunal involving

(a) a question as to the commission's jurisdiction; or

(b) a question of law.

(2) An appeal under subsection (1) shall be made within 30 days from the date of the order, ruling or decision appealed from.

1983 c48 s22; 1986 c38 Sch

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Stated case

35. The commission may, of its own motion, or upon the application of a party and upon security being given as the commission directs, state a case in writing for the opinion of the Trial Division upon a question which in the opinion of the commission is a question as to the commission's jurisdiction or a question of law, and a similar reference may also be made at the request of the Lieutenant-Governor in Council, and the Trial Division shall hear and determine the questions arising in a case so stated and remit the matter to the commission with the opinion of the court on the matter.

1983 c48 s23

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Rules for appeal

36. (1) The Judicature Act and the Rules of the Supreme Court, where they can be applied and are consistent with this Act, shall apply to a proceeding with respect to an appeal or stated case under section 34 or 35.

(2) A notice or other document required to be served on the commission may be served on the chairperson or, in his or her absence, the chief executive officer of the commission.

1987 c41 s24

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Notification of appeals, etc.

37. The Trial Division has power, with respect to appeals and stated cases referred to in sections 34 and 35, to direct that a person interested, or, where there is a class of persons interested, 1 or more persons as representatives of that class, shall be notified of the hearing and those persons are entitled to be heard.

1983 c48 s25

PART III
APPLICATION OF ACT

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Application of Act

38. (1) This Act applies to workers and employers engaged in, about or in connection with an industry in the province except those industries, employers or workers that the Lieutenant-Governor in Council may exclude by regulation.

(2) In addition to those industries, employers and workers excluded under subsection (1), the commission may by regulation exclude an employer or worker from the scope of this Act, where it is of the opinion that the exclusion is appropriate.

(3) Notwithstanding that certain industries, employers or workers are excluded from the scope of this Act, the commission may, on application, order that this Act apply to 1 or more of the industries, employers or workers otherwise excluded.

1983 c48 s26

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Employer covered

39. An employer in an industry may be admitted by the commission as being entitled for himself or herself and his or her dependents to the same compensation as if the employer were a worker.

1983 c48 s27

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Coverage for particular workers

40. (1) The Lieutenant-Governor in Council may by regulations in relation to

(a) fishers working in or out of the province, or on or about the waters of the province, or living within the province;

(b) commercial buyers or other commercial recipients of fish, or a person engaged within the province in transmitting payments to fishers;

(c) volunteer fire brigades or departments located in or serving a municipality and the members of the fire brigades or departments;

(d) independent operators in the logging industry;

(e) members of the House of Assembly; and

(f) volunteers engaged in work or measures under the Emergency Measures Act,

provide that the provisions of this Act may apply and to the extent that the regulations may provide.

(2) Where it appears to the commission that this Act or a regulation is inappropriate or unworkable in relation to fishers, the fishing industry or commercial buyers or other commercial recipients of fish, the commission may, by regulation or otherwise, make rules and give decisions that it considers fair and appropriate having regard to the intent that fishers shall where possible receive the benefit of and be subject to this Act.

1983 c48 s28; 1986 c38 s6

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Independent operator

41. An independent operator, not being an employer or a worker but performing work of a nature that would be within the scope of this Act, may be admitted by the commission as being entitled for himself or herself and his or her dependents to the same compensation as if he or she were a worker within the scope of this Act.

1983 c48 s29

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Work training programs

42. (1) Where a student is enrolled in an educational institution and is participating in a work training program he or she shall, while participating in the work training program, be considered to be a worker employed by the province.

(2) Where a student is injured while participating in a work training program and is entitled to compensation the amount payable to him or her shall be based on the current rate paid to a worker engaged in the same or similar work provided that the maximum amount payable does not exceed that set by this Act.

(3) The age for admission to a work training program shall be 15 years or over but in exceptional circumstances the commission may, at the request of the Minister of Education, rule a student to be entitled to the benefits of this section.

1983 c48 s30

PART IV
COMPENSATION AND RIGHT OF ACTION

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Compensation payable

43. (1) Compensation under this Act is payable

(a) to a worker who suffers personal injury arising out of and in the course of employment, unless the injury is attributable solely to the serious and wilful misconduct of the worker; and

(b) to the dependents of a worker who dies as a result of such an injury.

(2) The commission shall pay compensation to a worker who is seriously and permanently disabled as a result of an injury arising out of and in the course of employment notwithstanding that the injury is attributable solely to the serious and wilful misconduct of the worker.

1983 c48 s31

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Compensation instead of action

44. (1) The right to compensation provided by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or her dependents are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arises in the course of the worker's employment.

(2) A worker, his or her personal representative, his or her dependents or the employer of the worker has no right of action in respect of an injury against an employer or against a worker of that employer unless the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer.

(3) An action does not lie for the recovery of compensation under this Act and claims for compensation shall be determined by the commission.

1983 c48 s32

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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 person other than an employer or worker; or

(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,

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

(2) Where a worker referred to in subsection (1) or his or her dependents bring an action 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 entitled to compensation under this Act to the extent of the amount of the difference, notwithstanding the time limits set out in paragraph 53(1)(b).

(3) Where a worker referred to in subsection (1) or his or her dependents have claimed compensation and, before the end of the limitation period for the beginning of an action, have not started an action within a reasonable time as determined by the commission, the commission is subrogated to the rights of the worker or his or her dependents and may maintain an action in his, her or their names or in the name of the commission for the whole or an outstanding part of the claim of the worker or his or her dependents.

(4) Where an action is started under subsection (1), the worker or dependents shall immediately serve written notice of the action on the commission, or where an action is started under subsection (3), the commission shall immediately serve written notice of the action on the worker or dependents, but the failure to give notice as required by this subsection shall not affect the claim as against the defendant.

(5) Notwithstanding subsection (9), where a worker or his or her dependents receive compensation under this Act and also receive an amount as a result of the beginning of an action in a court of law or of a settlement, the worker or dependent shall, unless the commission approves a lesser amount, pay to the commission

(a) in the case where the worker or dependent chooses to have the monthly payments continued by the commission, the capitalized value of the compensation, and other money that had been paid by the commission in respect of the injury; and

(b) in the case where the worker or dependent does not choose to have the monthly payments continued by the commission, money that had been paid by the commission in respect of the injury,

and the commission may, where the amount of compensation is not returned within a reasonable time, recover that amount from the worker or dependents as a debt due the commission.

(6) Where in an action under subsection (1) a worker or his or her 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.

(7) It is not obligatory for the commission to sue for or require payment of damages as a result of an injury referred to in subsection (1) unless it considers it appropriate to do so, and the commission may settle the cause of action or release its claim where, in its discretion, it considers it inadvisable to bring action for the damages.

(8) A settlement of an action by a worker referred to in subsection (1) or his or her dependents at an amount less than the compensation provided for under this Act is of no effect unless made with the approval of the commission.

(9) A settlement of an action by a worker referred to in subsection (1) or his or her dependents at an amount equal to or greater than compensation to which the worker would have been entitled to under this Act relieves the commission of liability to pay money to the worker in respect of the injury.

(10) Where the commission is subrogated to the rights of a worker or his or her 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.

1983 c48 s33; 1985 c31 s2

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Commission decides if action prohibited

46. Where an action in respect of an injury is brought against an employer or a worker by a worker or his or her dependent, the commission has jurisdiction upon the application of a party to the action to adjudicate and determine whether the action is prohibited by this Act.

1983 c48 s34

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Length of disability

47. (1) Where an injury disables a worker for only the day on which the injury occurred, compensation other than medical aid shall not be paid by the commission but where the injury disables the worker for longer than the day on which the injury occurred compensation shall be paid from and including the day following the day of the injury.

(2) Where an injury disables a worker either for only the day on which the injury occurred, or for longer than the day on which the injury occurred, the employer shall pay the worker the wages or earnings that the worker would have earned from his or her employer the day on which the injury occurred as if he or she had not been disabled by the injury.

1983 c48 s35

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Residency requirement

48. Nothing in this Act entitles a person not living in the province to compensation payments with respect to an injury sustained within the province.

1983 c48 s36

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Compensation to non- residents

49. (1) Notwithstanding section 48, where it appears that by the laws of another province, country or jurisdiction a worker or his or her dependents, if living in this province, would be entitled in respect of an injury in that other province, country or jurisdiction to compensation, as distinguished from damages, the commission may order that payments of compensation under this Act may be made to persons living in that province, country or jurisdiction in respect of a worker killed or injured in this province.

(2) The commission may order that payments of compensation under this Act may be made to persons living elsewhere in Canada as the result of an injury sustained in this province after December 31, 1983.

1983 c48 s37

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Move outside province

50. Notwithstanding section 48, a worker or dependent living in this province may after the time of the injury live elsewhere without forfeiting the right to compensation under this Act.

1983 c48 s38

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Injury outside province

51. (1) Notwithstanding section 48, where an employer carries on a business in the province that has a substantial connection with the province and an injury occurs out of the province to a worker who is employed by that employer, the worker or his or her dependents are entitled to compensation in the same manner as if the injury had occurred in the province, unless the worker or his or her dependents are entitled to compensation under the law of the place where the injury occurred.

(2) In a case where compensation is payable in respect of an injury occurring out of the province, where the employer has not fully reported to the commission the wages of the worker who sustains the injury, the employer is, except where he or she may be relieved by the commission, liable for the full amount or capitalized value of the compensation and the payment of that amount may be enforced in the same manner as the payment of an assessment may be enforced.

1983 c48 s39

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No waiver of benefits

52. A worker shall not agree with his or her employer to waive benefits to which he or she or his or her dependents are or may become entitled under this Part and an agreement of that nature is void.

1983 c48 s40

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Notice of accident

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

(a) he or she gives notice of the injury to his or her employer as soon as practicable 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 within 6 months from the occurrence of the injury or, in case of death, within 6 months after the date of death.

(2) The Lieutenant-Governor in Council may, by order, extend the limitation period for making a claim for compensation in respect of an injury described in the order, with effect from the date of the order or an earlier or later date that may be set out in the order.

(3) The notice given under subsection (1) shall give the name and address of the worker and shall be sufficient if it states in ordinary language the cause of the injury and where the injury occurred.

(4) The notice given under subsection (1) may be served by delivering it at or sending it by registered mail to the place of business or the residence of the employer, or, where the employer is a body of persons incorporated or unincorporated, by delivering the notice at or sending it by registered mail to the employer at the office or, where there is more than 1 office, at an office of the body of persons.

1983 c48 s41

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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 employer was not prejudiced by the failure, defect or inaccuracy, and the commission is of the opinion that the claim for compensation is just and should be allowed.

1983 c48 s42

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Application for compensation

55. Where a worker or dependent applies for compensation he or she shall file with the commission an application for the compensation, together with the certificate of the attending doctor, and other proof of his or her claim that may be required by the commission.

1983 c48 s43

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Duties of employer

56. (1) An employer shall, within 3 days after the occurrence of an injury to a worker in his or her employment as a result of which the worker is disabled from earning full wages or the worker is entitled to medical aid, notify the commission in writing of

(a) the occurrence of the injury and nature of it;

(b) the time when the injury occurred;

(c) the name and address of the worker;

(d) the place where the injury occurred;

(e) the name and address of the doctor who looks after the injury; and

(f) other particulars required by the commission.

(2) An employer shall make further and other reports respecting the injury and workers that may be required by the commission.

(3) Where an employer fails to notify the commission of the occurrence of an injury the commission may in relation to compensation paid in respect of that injury charge the cost of the claim against the experience record of that employer.

1983 c48 s44

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Duties of doctor

57. (1) A doctor attending or consulted upon a case of injury to a worker shall provide reports in a form that may be required by the commission in respect of the injury.

(2) A doctor in attendance upon an injured worker shall give reasonable and necessary information, advice and help to enable the worker or his or her dependents to apply for compensation and to provide proof that may be required by the commission.

1983 c48 s45

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Medical records

58. Where a worker applies for compensation he or she is considered to have authorized a hospital authority to disclose to the commission information contained in the records of the hospital authority, and that disclosure to the commission shall not be construed as contrary to section 35 of the Hospitals Act.

1983 c48 s46

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Claim investigated

59. The commission shall investigate and process a claim that has been filed with the commission at the earliest convenient date.

1983 c48 s47

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Proof required

60. (1) It is not necessary for a worker to bring forward conclusive proof of his or her right to the compensation applied for, but the commission shall draw from the circumstances of the case, the evidence and medical opinions, reasonable inferences in favour of the worker.

(2) The commission may require the proof which it considers necessary of the existence and condition of dependents in receipt of compensation.

1983 c48 s48

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Presumption

61. Where the injury arose out of the employment, it shall be presumed, unless the contrary is shown, that it occurred in the course of the employment, and where the injury occurred in the course of the employment, it shall be presumed, unless the contrary is shown, that it arose out of the employment.

1983 c48 s49

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Medical examination required

62. The commission may require a worker applying for or receiving compensation to submit to a medical examination by the commission or its appointed officer and, in default of the requirement being complied with, may withhold the compensation.

1983 c48 s50

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Objection to claim

63. (1) A person who objects to a claim that has been filed with the commission shall file with the commission a written notice within 10 days after the date the claim was first reported to the person objecting.

(2) A notice filed under subsection (1) shall state fully the nature of the objection and the reason for it, and a copy shall be handed to the worker or mailed to his or her last known address.

(3) Where an objection to a claim is filed, the commission shall inquire into the claim within 45 days after the objection is filed.

1983 c48 s51

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Power to review compensation

64. The commission may reopen, rehear, redetermine, review or readjust a claim, decision or adjustment, where

(a) an injury has proven more serious or less serious than it was considered to be;

(b) new evidence relating to the claim, decision or adjustment has been presented to it;

(c) a change has occurred in the condition of an injured worker or in the number, circumstances or condition of dependents or otherwise; or

(d) a worker is not following medically prescribed treatment.

1983 c48 s52

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Compensation where fatal accident

65. (1) Where the death of a worker results from an injury, the amount of compensation paid to the worker's surviving dependent spouse and children and the expenses paid for the burial of the worker shall be as prescribed and regulations may be made with retroactive effect.

(2) Where compensation is not payable under subsection (1) and a person other than those mentioned in subsection (1) is a dependent, a sum proportionate to the monetary loss to those dependents occasioned by the death of the worker that may be determined by the commission shall be paid by the commission to the dependents.

(3) Payments provided for in subsection (2) shall continue only as long as in the opinion of the commission it might reasonably have been expected that the worker, had he or she lived, would have continued to contribute to the support of the dependent.

1983 c48 s53

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Method of payment

66. The method of calculating compensation under section 65 and the manner in which compensation is paid under that section may be prescribed with effect from the date of the publication of the regulation, or an earlier or later date that may be set out in the regulation.

1983 c48 s54

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Compensation may be apportioned

67. (1) Where compensation is payable to dependents under section 65, the commission may apportion the compensation among the dependents in the manner and to the degree that the commission considers is just in the circumstances.

(2) Notwithstanding subsection (1), the commission shall not pay in respect of dependents of a worker a total amount greater than is provided for the respective dependents under section 65.

1983 c48 s55

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Compensation may be withheld

68. The commission may withhold compensation payable to a parent with respect to the death of a child where the employment of the child was unlawful under a statute.

1983 c48 s56

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Compensation unpaid at death

69. Where death results from an injury or after an injury, compensation payable with respect to a portion of the period between the date of the injury and the date of the death may be paid by the commission to those dependents of the deceased worker who the commission considers to be appropriate recipients.

1983 c48 s57

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Household to be continued

70. Where a worker in relation to whom section 65 applies does not leave a spouse or where the spouse of the worker dies, and in the opinion of the commission it is desirable to continue the existing household and where a relative of the worker or of the spouse or other suitable person acts as foster parent in keeping up the household and maintaining and taking care of the children entitled to compensation in a manner which the commission considers satisfactory, the foster parent, while so doing, is entitled to receive the same monthly payments of compensation for himself or herself and the children as if he or she were the spouse of the deceased.

1983 c48 s58

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Where spouse remarries

71. Where a dependent spouse remarries after the death of his or her former spouse, the monthly payments to him or her under section 65 shall stop but he or she is entitled, instead of them, to a prescribed lump sum, payable and calculated in the prescribed manner, and the lump sum is payable within 1 month after the day of his or her remarriage.

1983 c48 s59

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Payments to children

72. (1) Where payments are made in respect of a child they shall stop when the child reaches the age of 16 years or dies but compensation is payable in respect of an invalid child without regard to the age of the child and payment to the child shall continue so long as in the opinion of the commission it might reasonably have been expected that the worker, had he or she lived, would have continued to contribute to the support of the child.

(2) Where in the opinion of the commission the providing of further education to a child appears advisable, the commission in its discretion may on application extend the period for which compensation shall be paid in respect of the child for an additional period as is spent by the child in the furthering of his or her education but in no case beyond the age of 25 years.

1983 c48 s60

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Compensation for disability

73. (1) Where, as the result of an injury, a worker is disabled or disfigured either permanently or temporarily, totally or partially, the commission shall pay in relation to the worker

(a) medical expenses as provided for in section 84;

(b) a lump sum award for the disability or disfigurement as determined by the commission after consideration of a rating schedule; and

(c) compensation for the loss of earning capacity resulting from the injury calculated in accordance with section 74.

(2) The maximum and minimum lump sum awards payable under paragraph (1)(b) shall be as prescribed by regulations.

(3) The board of directors may for the purpose of paragraph (1)(b) approve a rating schedule which may be considered in calculating the amount of an award for a disability or disfigurement arising out of an injury.

1983 c48 s61; 1986 c38 Sch

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Lost earning capacity

74. (1) Where injury to a worker results in loss of earnings beyond the day of the injury, the commission shall estimate the effect of the injury on the loss of earning capacity resulting from the injury and shall ensure compensation to the worker on the basis of the estimated loss.

(2) Calculation for the loss of earning capacity shall be based on 90% of the difference between the worker's average weekly net earnings at the beginning 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.

(3) The commission for the purpose of subsection (2) may consider that a worker is capable of working in an occupation and estimate the wage he or she could earn in that occupation.

(4) Where a worker reaches the age of 65 years, the compensation payable under this section shall stop.

(5) Notwithstanding subsection (4) where a worker is 63 years old or more at the beginning of his or her loss of earnings resulting from the injury, the commission may provide the compensation under subsection (1) for a period of not more than 2 years following the date of the injury.

(6) Compensation being paid for lost earning capacity shall be reviewed annually and shall be increased by the same percentage increase by which the maximum compensable earnings are increased for that year or by another increase that may be prescribed.

1983 c48 s62

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Annuity at age 65

75. (1) Where compensation is paid to a worker for a period exceeding 24 consecutive months, the commission shall set aside an amount equal to 10% of the compensation paid and of the compensation as it is paid, and that amount, together with accrued interest, shall be used to provide an annuity for the worker at age 65 years.

(2) The amount set aside under subsection (1) may be

(a) set aside in reserves of the commission; or

(b) on the request of the worker, paid into an established superannuation plan.

(3) Where the annuity provided to a worker under subsection (1) is less than an amount that may be prescribed, the commission shall, instead of the annuity, pay to the worker the amount set aside under subsection (1) together with accrued interest.

(4) Where the commission determines the impact of an injury on the income of a worker is greater than is recognized by the payments under subsection (1) and that it causes undue hardship to the worker, the commission may supplement, by whatever amount it considers appropriate, the income of that worker upon his or her reaching the age of 65 years to increase the amount of his or her income to the prescribed minimum amount of compensation under section 78.

1983 c48 s63

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Earning capacity reviewed

76. Where the commission is satisfied that the average earnings of the worker at the time of the worker's injury do not represent the worker's earning capacity

(a) because of the worker's age; or

(b) because the worker is in the course of learning a trade, occupation, profession or calling

it may, in the case of a temporary disability, adjust the amount of compensation and, in the case of a permanent disability, calculate the award, by taking into account the probable increase in average earnings.

1983 c48 s64

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Recurrence of injury

77. Where an injured worker returns to full employment and suffers a recurrence of the injury, the compensation payable to him or her shall be based on the greater of

(a) his or her average weekly earnings at the time of the beginning of his or her loss of earnings resulting from the injury when the injury was initially sustained; and

(b) the average weekly earnings at the time of his or her loss of earnings resulting from the recurrence of the injury

less compensation he or she is already receiving in respect of that injury.

1983 c48 s65

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Minimum compensation

78. (1) The amount of compensation to which a worker who is injured and totally unable to work because of the injury is entitled to shall not be less than the minimum prescribed by regulations.

(2) The minimum payments prescribed under this section may be increased with effect from the date of publication of the regulation, or an earlier or later date that may be set out in the regulation.

1983 c48 s66

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Rescue work

79. In the case of a worker suffering injury by accident arising out of and in the course of the employment while doing rescue work for the saving of human life in a mine or in an industry, or on the premises of either of them, during or immediately after an explosion, injury, fire or other catastrophe, the compensation payable in that case shall be calculated on the basis of 100% of net earnings instead of the percentages otherwise provided in this Act.

1983 c48 s67

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Calculation of earnings

80. (1) Average weekly earnings shall be calculated on the basis of

(a) the amount earned in the period of 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; or

(b) the rate of daily, weekly, monthly or other regular remuneration that the worker was receiving at the beginning of the loss of earnings as a result of the injury,

whichever, in the opinion of the commission, seems more equitable.

(2) In calculating average weekly earnings, they shall be considered not to exceed 1/52 of the prescribed maximum compensable earnings in effect at the beginning of the loss of earnings resulting from the injury, or at the beginning of the recurrence of the loss.

(3) Where the employer was accustomed to paying to the worker a sum of money to cover special expenses imposed on him or her by the nature of his or her employment, that sum shall not be included as part of his or her earnings.

(4) Where, owing to the shortness of the time during which the worker was in the employment of his or her employer or the casual nature of his or her employment or the terms of his or her employment, it is inequitable to calculate the rate of remuneration as of the date of the injury, regard may be had to the average weekly or monthly amount which during the 12 months before the injury was being earned by a person in the same grade employed at the same work by the same employer or where there is no person so employed then by a person in the same grade employed in the same class of employment and in the same locality.

(5) Where a worker who is injured is at the time of his or her injury under concurrent contracts of service with 2 or more employers his or her average earnings shall be determined as though his or her earnings from those employers were earnings from the employer for whom he or she was working at the time of the injury and, notwithstanding paragraph 2(v), his or her net earnings means his or her average earnings as determined under this section less the total of the amounts described in subparagraphs 2(v)(i), (ii) and (iii).

(6) Where in a case it seems more equitable, the commission may award compensation, having regard to the earnings of the worker at the time of the injury.

(7) Where a worker has received compensation for 13 consecutive weeks, the commission may review the average annual earnings of the worker preceding his or her loss of earnings and adjust the amount of compensation paid to the worker, notwithstanding what his or her average weekly earnings would be under subsection (1), so that the compensation is more equitably based on his or her average annual earnings.

(8) The maximum compensable earnings may be prescribed by regulation with effect from the date of publication of the regulation, or an earlier or later date that may be set out in the regulation.

1983 c48 s68

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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, including a pension, gratuity or other allowance provided wholly at the expense of the employer.

(2) Where compensation is payable a sum deducted from the compensation under subsection (1) may be paid to the employer out of the injury fund.

(3) Periodic benefits relative to an injury that a worker is entitled to receive under the Canada Pension Plan may 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.

1983 c48 s69; 1985 c31 s3

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Payment of compensation

82. (1) Payments of compensation shall be made in the manner and in the form that may appear to the commission to be most convenient.

(2) In the case of a mentally disabled person compensation payments may be made to a person who in the opinion of the commission is best qualified to administer the payments, whether or not the person to whom the payment is made is the legal guardian of the mentally disabled person.

(3) Where a person entitled to compensation is committed to a mental hospital or to a jail, penitentiary or place of detention, compensation is not payable for the period of confinement but the commission may pay the whole or a part of the compensation so withheld to dependents of the person confined or to other persons who in the opinion of the commission are best qualified to administer the payments.

(4) Where the person referred to in subsection (3) is under 16 years of age compensation payable to him or her may be paid, instead, to the person who, in the opinion of the commission, is most suitable.

1983 c48 s70

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Compensation not assignable

83. Except with the approval of the commission or where there is a court order for support, a sum payable as compensation may not be assigned, charged or attached, nor shall it pass by operation of law except to a personal representative, nor shall a claim be set off against it.

1986 c38 s7

PART V
MEDICAL AID

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Where medical aid needed

84. (1) The commission shall provide a worker who is entitled to compensation under this Act or who would have been entitled had he or she been disabled longer than the day of the injury with the medical aid that in the opinion of the commission may be necessary as a result of the injury.

(2) The commission may make a daily allowance to an injured worker for his or her subsistence when, under its direction, he or she is undergoing treatment at a place other than the place where he or she ordinarily lives.

(3) The worker is entitled to the medical aid that the commission may decide is necessary or advisable, including

(a) the prosthesis and apparatus that may be necessary as a result of an injury;

(b) having the prosthesis and apparatus kept in repair or replaced;

(c) having clothing which is damaged or worn by the use of the prosthesis or apparatus kept in repair or replaced;

(d) the replacement of an article of clothing destroyed by an injury or the cause of the injury and the replacement or repair, as the commission may determine, of that article;

(e) those dental appliances and apparatus that may be necessary as a result of an injury;

(f) having the dental appliances and apparatus kept in repair or replaced;

(g) those hearing and vision aids that may be necessary as a result of an incident causing personal injury or, where there is no personal injury, as a result of a work incident that is proven to the satisfaction of the commission; and

(h) having the hearing and vision aids repaired or replaced.

1983 c48 s72

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Medical aid

85. (1) The supervision and control of medical aid and questions as to the necessity, character and sufficiency of medical aid which is provided shall be determined by the commission.

(2) A doctor and attending hospital official consulted respecting or having the care of a worker shall provide to the commission the reports that may be required by the commission in respect of the worker.

(3) The fees or charges payable for medical aid and doctor's reports

(a) shall be fixed by the commission; and

(b) shall not be more than the commission considers reasonable and appropriate for service rendered to a worker,

and an action does not lie for an amount larger than that fixed by the commission.

(4) A doctor or other person, entitled to be paid by the commission under this Act for services performed or for medicines or materials supplied, shall not make a charge against an injured worker, an employer or a person other than the commission for those services, medicines or materials.

1983 c48 s73

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Re contributions for medical aid

86. (1) An employer shall not directly or indirectly collect, receive or retain from a worker contributions towards the expense of medical aid.

(2) Where, in conjunction with or apart from the medical aid to which workers are entitled free of charge, further aid or other service or benefit is or is proposed to be given or arranged for, a question arising as to whether a contribution from workers is prohibited by this Act shall be determined by the commission.

1983 c48 s74

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First medical treatment

87. (1) Where a worker has been so seriously injured within the meaning of this Act that he or she cannot continue at his or her regular work, the employer shall at his or her own expense as soon as reasonably possible after the injury obtain necessary medical aid or convey the worker to a place where the worker may receive medical aid, and the employer at his or her own expense shall, upon the occurrence of an injury to 1 of his or her workers, provide immediate transportation to a hospital should that be necessary or to a place where proper medical aid can be given and shall also provide the giving of medical aid that may be necessary to the injured worker upon the journey.

(2) Where an employer fails to comply with subsection (1), a person may obtain medical aid or convey the injured worker to a hospital or place referred to in that subsection and where the employer fails to pay the reasonable charges for obtaining the aid or for the conveyance the commission may pay the charges and the employer is liable to pay the commission double the amount paid and the payment of the amount may be enforced in the same manner as an assessment.

1983 c48 s75

PART VI
REHABILITATION

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Rehabilitation

88. The commission may take those measures and make those expenditures that it may in its discretion consider necessary or expedient

(a) to help in getting injured workers back to work;

(b) to help in lessening or removing a handicap resulting from their injuries; or

(c) to help in the rehabilitative measures of personal care and home care.

1983 c48 s76

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Education or retraining

89. Where, as a result of an injury, a worker is unable to return to his or her former employment or is able to do so only if he or she undergoes a period of training or retraining, the commission may take those measures and make the expenditures that it may in its discretion consider necessary or expedient to provide that worker with the academic or vocational training that in the opinion of the commission may be necessary to enable him or her to resume his or her former employment or to enter new employment.

1983 c48 s77

PART VII
INDUSTRIAL DISEASES

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Industrial disease

90. (1) Where

(a) a worker suffers from an industrial disease and is as a result disabled or his or her death is caused by an industrial disease; and

(b) the disease is due to the nature of the employment in which he or she is engaged, whether under 1 or more employments,

the worker or his or her dependents are entitled to compensation as if the disease were an injury, and the date of disablement were the date of injury, subject to the modifications mentioned in this section, unless at the time of entering into the employment he or she had falsely represented himself or herself as not having previously suffered from the disease.

(2) Subject to the approval of the Lieutenant-Governor in Council, the commission may make regulations setting out industrial diseases and associating descriptions of processes with the diseases.

(3) Where a worker referred to in subsection (1) at or immediately before the date of the disablement was employed in a prescribed process and the disease contracted is the prescribed disease associated with the description of the process, the disease shall be considered to have been due to the nature of that employment unless the contrary is proved.

(4) Nothing in this section affects the right of a worker to compensation in respect of a disease to which this section does not apply where the disease is the result of an injury in respect of which he or she is entitled to compensation under this Act.

(5) The commission may by written order require a worker in an employment to undergo a medical examination for the purpose of determining whether the worker is affected with an industrial disease or, where so affected, the progress of the disease.

(6) Where a worker, required under this section to undergo a medical examination, fails or refuses to do so the employer of the worker shall not continue or maintain the worker in his or her employ until the worker has undergone the required medical examination.

1983 c48 s78

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St. Lawrence

91. (1) Where

(a) a worker suffers from a chronic obstructive pulmonary disease or from silicosis or carcinoma and is as a result disabled from earning full wages at the work at which he or she was employed, or his or her death is caused by that disease and the worker was employed, whether before or after January 1, 1951, in fluorspar extraction, or both, at St. Lawrence; or

(b) a worker or a deceased worker is listed in the Appendix to chapter XVIII of the Report of the Royal Commission Respecting Radiation, Compensation and Safety at the Fluorspar Mines, St. Lawrence, Newfoundland, 1969, as being entitled to compensation under the commission's recommendations, whether by majority decision or decision of a single member,

the disease or disability suffered by the worker or his or her death shall be considered to be due to the nature of the employment in those mines unless it is traceable to other employment and the worker or, where the worker is dead, his or her dependents are entitled to compensation

(c) from the date referred to in subsection (4); or

(d) from the date of disability or death,

whichever is later, as if the disease were an injury arising out of and in the course of his or her employment in those mines and the disablement or death were the happening of the injury.

(2) The intent of this section is that the recommendations respecting compensation appearing in the report referred to in subsection (1) including minority recommendations, shall be fully implemented, and this section shall be interpreted in the light of this intent, and, to dispel doubt, the Lieutenant-Governor in Council may make regulations for the purpose of giving effect to that intent.

(3) Nothing in this section shall entitle

(a) a worker or the dependent of a deceased worker or another person to claim compensation for a period before the date mentioned in subsection (4); or

(b) the personal representative, surviving spouse or next of kin of a deceased dependent of a worker, where that surviving spouse or next of kin is not a dependent of that worker to claim compensation for a period before or after the date mentioned in subsection (4).

(4) This section shall be considered to have come into force on September 1, 1969 but applies only in relation to a worker who

(a) before January 1, 1984 was employed in fluorspar extraction at St. Lawrence; or

(b) is referred to in paragraph (1)(b).

1983 c48 s79; 1985 c31 s4

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Medical committees

92. (1) In this section "committee" means a committee of medical referees constituted and appointed under this section.

(2) The commission

(a) shall constitute a committee of medical referees upon the written request of a worker or the personal representative of a deceased worker made not later than 90 clear days after the making of a medical decision by the commission or, where, in the opinion of the commission, exceptional circumstances exist, a longer period that the commission may prescribe; or

(b) may constitute a committee of medical referees where the commission feels it is desirable to constitute such a committee,

for the purpose of investigating and determining in relation to a claim made by a worker or the dependents of a deceased worker, the nature of an industrial disease and its relationship to the processes directly associated in the regulations with the disease and a committee may be constituted to make an investigation and determination in respect of a number of cases based on death or disability alleged to be caused by that disease.

(3) A committee shall consist of 3 medical practitioners recognized as specialists in the class of injury or illness for which the committee is constituted and shall be appointed in the manner provided as follows from a list of specialists prepared by the commission.

(4) In the case of a committee constituted under paragraph (2)(a)

(a) the commission shall, by a notice sent by registered mail, require the worker or the dependents to appoint from the list previously mentioned 1 specialist within 14 days after the mailing of the notice by the commission and where the worker or his or her dependents fail to make that appointment, the minister shall make an appointment from the list and that member shall be considered to be appointed by the worker or his dependents and the appointment by the dependents under this subsection shall be effected on their behalf by the personal representative of the deceased worker concerned;

(b) the commission shall appoint the 2nd member of the committee from the list and the 2 members appointed by the worker or his or her dependents and the commission shall appoint from the list the 3rd member who shall be chairperson; and

(c) where the members appointed by the commission and the worker or his or her dependents are unable to agree on a 3rd member within 2 weeks after they are appointed, the minister shall appoint from the list the 3rd member who shall be chairperson.

(5) In the case of a committee constituted under paragraph (2)(b), the commission shall appoint the members of the committee and shall designate 1 of them as chairperson.

(6) A committee has the powers conferred on a commissioner by section 3 of the Public Inquiries Act and the power of the commission under section 90 to require the workers concerned to undergo a medical examination.

(7) A committee shall conduct those investigations and receive the evidence that it considers necessary for the determination of the questions referred to it by the commission.

(8) A committee shall report to the commission its findings on the nature of the disease and its relationship to the processes associated with it in the regulations and where a worker is examined shall certify to the commission

(a) the condition of the worker;

(b) his or her fitness for employment;

(c) where unfit, the cause of his or her unfitness;

(d) the extent of his or her temporary or permanent disability because of the disease in respect of which he or she has claimed compensation; and

(e) other matters which in the opinion of the commission or the committee may be pertinent to the claim,

and where the claim is made by the dependents of a deceased worker the committee shall certify to the commission

(f) the cause of the worker's death;

(g) the opinion of the committee as to the reasonableness of the inference that the worker died from the disease;

(h) whether the disease is related to any of the processes associated with it in the regulations; and

(i) other matters which may, in the opinion of the commission or the committee, be pertinent to the claim.

(9) Subject to the approval of the Lieutenant-Governor in Council the commission may make regulations providing for a matter or thing which appears to be necessary or advisable for the operation of this section.

1983 c48 s80

PART VIII
INJURY FUND AND ASSESSMENTS

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Injury fund

93. (1) The injury fund is continued.

(2) Compensation, medical aid and other expenses under this Act and the regulations shall be paid out of the injury fund.

1983 c48 s81

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Classes of industry

94. (1) For the purpose of creating and maintaining the injury fund the commission may

(a) divide into classes all industries;

(b) rearrange the classes of industry provided for in paragraph (a); and

(c) transfer an industry to another class.

(2) The commission shall assign an industry to its appropriate class and, where an industry includes several departments assignable to different classes, the commission may assign the industry to the class of its principal department or may divide the industry into 2 or more departments, assigning each to its proper class.

1983 c48 s82

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Subclasses

95. (1) The commission may establish those different subclassifications and different rates among the different kinds of industry in the same class or subclass that it considers just.

(2) It is not necessary that the assessment upon the employers in a class or subclass be uniform but it may be fixed or graded in relation to the hazard of each or of any of the industries included in the class or subclass.

1983 c48 s83

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Merit rating

96. (1) The commission shall adopt a system of merit-demerit rating to determine the assessment rate of an employer in each class or subclass.

(2) The commission shall in establishing the merit-demerit assessment rate applicable to an employer in each class or subclass consider the rehabilitation efforts made by the employer.

1983 c48 s84

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Assessment rated on payroll

97. The commission shall every year assess and levy upon and collect from the employers in each class by an assessment rated upon the payroll, or otherwise as the commission considers appropriate, sufficient funds to meet claims payable during the year.

1983 c48 s85

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Manner of assessment

98. (1) Assessments may be made in the manner and form and at those times and by the procedure that the commission considers adequate and expedient and may be general as applicable to a class or subclass or special as applicable to an industry or part or department of an industry.

(2) The commission shall give notice to each employer, in a manner that may be considered by the commission appropriate, of the rate of the assessment applicable in respect of his or her industry and the time when the assessments are due.

(3) Assessments may, where the commission considers it expedient, be collected in half-yearly, quarterly or monthly instalments or otherwise, and where it appears that the funds in a class are sufficient the commission may abate an instalment or defer its collection.

1983 c48 s86

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Employer to pay assessments

99. (1) An employer shall pay into the injury fund those assessments that may be levied by the commission and where an assessment or a part of an assessment is not paid in accordance with the terms of the levy the commission has a right of action against the employer in respect of an amount unpaid, together with costs of the action.

(2) Notwithstanding a provision respecting estimates of payrolls and notice to employers, an employer, without demand from the commission, shall pay to the commission the full amount of assessments levied in accordance with this Act.

1983 c48 s87

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When assessment due

100. (1) Liability of an employer for an assessment under this Act is due on January 1 in each year in relation to workers employed at that time.

(2) Where a worker for whom an assessment is payable is employed in a year after January 1 the liability of the employer for the assessment is due on the date the worker is employed.

(3) Priority of the commission in respect of an assessment is considered to vest in the commission on the day the assessment becomes due to the commission, notwithstanding that a notice of assessment has not been issued by the commission.

1983 c48 s88

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Information may be required

101. (1) An employer shall on becoming an employer, or where required by the commission, provide to the commission a statement showing an estimate of the amount of the payroll, together with information that may be required by the commission for the purpose of assigning the industry carried on by the employer to the proper class and of making the assessment in relation to the class.

(2) An employer shall at the time and in the form that may be required by the commission

(a) provide a certified statement of his or her payroll, including a calculation of a difference between his or her prior year's estimated payroll and the actual payroll;

(b) provide the commission with an estimate of his or her payroll for the coming year; and

(c) remit to the commission money calculated to be owing for the prior year and the amount estimated to be owing for the next year.

(3) An employer shall keep in the form and with the detail that may be required for the purpose of this Act careful and accurate accounts of wages paid to his or her employees and those accounts shall be produced, on request, to the commission.

(4) Where the business of the employer embraces more than 1 branch or class of industry the commission may require separate statements to be made in relation to each branch or class of industry and the statements shall be provided in accordance with subsection (1) or (2).

(5) Where an employer does not provide to the commission the statements or accounts referred to in subsections (1), (2) and (3) within the prescribed time the commission may base an assessment or supplementary assessment made upon him or her on a sum that, in its opinion, is the probable amount of the payroll of the employer and the employer is bound by the assessment.

(6) Where it is ascertained that the amount referred to in subsection (5) is less than the actual amount of the payroll the employer is liable to pay to the commission the difference between the amount for which he or she was assessed and the amount for which the employer would have been assessed on the basis of his or her payroll.

(7) A person shall, where required, make a return to the commission stating whether he or she has employed workers during a period that the commission designates, and where the person has employed workers he or she shall state in the return the nature of the industry in which they were employed and provide other information that the commission may require.

1983 c48 s89

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Calculation of payroll

102. In calculating and adjusting the amount of the payroll of an employer regard shall be had only to that portion of the payroll that has been paid to the worker that is not in excess of an amount that may be prescribed, and the excess shall be deducted from the amount of the payroll and the assessment shall be based on the payroll as reduced.

1983 c48 s90

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No deduction from wages

103. An employer shall not either directly or indirectly deduct from the wages of his or her workers a part of a sum which the employer is or may become liable to pay into the injury fund or otherwise under this Act or require or permit the workers to contribute in a manner towards indemnifying the employer against liability which he or she may incur under this Act.

1983 c48 s91

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Commission may estimate

104. (1) Where an employee of an incorporated company is a shareholder in the company and is remunerated in whole or in part for his or her services with a share of profits and the employer does not return to the commission what the commission considers to be a reasonable sum for the earnings of the employee, the commission may make an addition to the actual payroll of the employer that it considers reasonable to represent the earnings of the employee.

(2) Where an employer is a contractor and sublets the whole or a part of the work to a subcontractor, the commission may assess the employer on the labour portion of the contracts, as determined by the commission.

1983 c48 s92

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Credit balance due employer

105. Money owing to an employer by the commission as a result of an over estimation of the employer's payroll or as a result of his or her prior year's estimated payroll exceeding his or her actual payroll shall, at the discretion of the commission, be refunded to the employer or credited on behalf of the employer in respect of his or her subsequent assessment.

1983 c48 s93

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Charges to other classes

106. (1) Where it appears to the satisfaction of the commission that a worker of an employer in a class is injured or killed owing to the negligence of an employer or of a worker of an employer in another class, the commission may direct that all or a portion of the cost of the claim in that case be charged against the last-mentioned class.

(2) Where the commission has adopted a system of merit-demerit rating under section 96 for classes of industry, and it appears to the satisfaction of the commission that a worker has been injured or killed owing to the negligence of another employer or his or her worker, the commission may direct that the costs of the claim be included in the experience account of that employer and, where the employers are in different classes, charged to the class in which that employer is included in the same manner as if those costs had been spent in respect of a worker of that employer.

(3) Where it appears to the satisfaction of the commission that the injury to or death of the worker is due to the negligence of 2 or more persons, 1 of whom may be the worker, the commission may direct

(a) that the costs of the claim be included and charged in the experience accounts and classes of the employers who, or whose workers, were negligent in proportion to the degree of negligence of each person involved; or

(b) where the commission is of the opinion that it cannot establish different degrees of negligence, that the costs of the claim be included and charged in the same manner in the experience accounts and classes of the employers involved in equal proportions.

(4) Subsections (1) to (3) do not affect a right of action or indemnity an employer may have against another employer arising out of a contract or agreement made between the employers.

1983 c48 s94

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Cost of medical investigations

107. The cost of investigations conducted by a committee under section 92 shall be paid out of the injury fund,

(a) as a charge on the industries allocated under this Act to the same class as that of the employer of the worker, where the claim is accepted; and

(b) as part of the administrative expenses of the commission, where the claim is denied.

1983 c48 s95

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Where assessment insufficient

108. Where in a class the estimated assessments prove insufficient, the commission may make further assessments that may be necessary or may temporarily advance the amount of a deficiency out of a reserve and may add that amount to a later assessment.

1983 c48 s96

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Arrangement with other provinces

109. The commission may make or carry out arrangements with the Workers' Compensation Board of another province to avoid duplication of assessment on the earnings of workers protected at the same time under the laws of 2 or more provinces relating to workers' compensation and may make an adjustment in assessments by the employers of the workers that the commission considers equitable and may repay another Workers' Compensation Board for payment of compensation made by it under those arrangements.

1983 c48 s97

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Arrangement with self- insurers

110. The commission may enter into agreements with those self-insurers that the commission may prescribe providing

(a) that the provisions of this Act respecting assessments do not apply to the self-insurers; and

(b) the terms and conditions that may be agreed to with respect to payments by the commission in relation to workers of self-insurers.

1983 c48 s98

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Where industry temporary

111. Where an employer engages in an industry, the commission, where it is of the opinion that the industry is to be carried on only temporarily, may require the employer to pay, or to give security for the payment to the commission of a sum which in the opinion of the commission may be sufficient to pay assessments that the commission may make with respect to that industry, and the payment of the sum may be enforced in accordance with section 117.

1983 c48 s99

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Former employers

112. After a person has stopped being an employer he or she has no rights in the injury fund and by ceasing to be an employer he or she shall be considered to have released and discharged the commission from actions and claims arising or proceedings taken, afterwards, in respect of the injury fund.

1983 c48 s100

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Change of ownership

113. (1) Where in an industry a change of ownership or employer has occurred and an assessment in respect of the industry remains in whole or in part unpaid or credited at the time of that change, the commission may levy a part of the unpaid amount or the amount due upon an assessment on the successive owners or employers, or pay or credit to 1 or more of those owners or employers a surplus, but as between or among those successive owners or employers the assessment in respect of that employment shall, in the absence of an agreement between the respective owners or employers determining the assessment, be apportionable in accordance with the proportions of the payrolls of the respective periods of ownership or employment.

(2) An assessment due in relation to an industry described in subsection (1) is subject to subsection 98(3).

1983 c48 s101

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Effect of refusal

114. (1) An employer who

(a) refuses or neglects to make or transmit a payroll return or other statement required under section 101;

(b) refuses or neglects to pay an assessment, special or supplementary assessment, or the provisional amount of an assessment, or an instalment or part of the assessment; or

(c) refuses or neglects to report to the commission his or her estimate of payroll,

shall, in addition to a penalty or other liability to which he or she may be subject, pay to the commission

(d) the full amount and capitalized value, as determined by the commission of the compensation payable in respect of injuries to workers in his or her employ which happened during the period of his or her default;

(e) medical aid payable in respect of those injuries; and

(f) costs relating to the rehabilitation of workers injured in his or her employ during the period of his or her default,

and the payment of an amount under this subsection may be enforced in the same manner as the payment of an assessment may be enforced, but the amount payable under this subsection shall not exceed an amount which the commission considers reasonable under the circumstances.

(2) The commission, where satisfied that a default referred to in subsection (1) was excusable, may relieve the employer in whole or in part of liability under this section.

1983 c48 s102

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Accounts within fund

115. Separate accounts shall be kept of the amounts collected and spent in respect of a class and of a fund set aside by way of reserve, but for the purpose of paying compensation, medical aid and other expenses, the injury fund is nevertheless considered one and indivisible.

1983 c48 s103

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Reserves within fund

116. (1) The commission may, in addition to the amount actually required in each class for the year, assess and collect from the employers in a class surcharges to be set aside as reserves

(a) by way of providing a special fund to be used to meet an increase in the capitalization of periodical compensation payments payable in future years, or a portion of the compensation payments, where, in the opinion of the commission, an increase cannot otherwise be provided without placing an undue burden on the employers in a class;

(b) by way of providing a reserve fund to be used to meet that part of the cost of claims of workers suffering enhanced disabilities, because of similar or other disabilities previously suffered, as in the opinion of the commission is the result of the previous disabilities;

(c) by way of providing a special fund to be used to meet the loss arising from a disaster or other circumstances which in the opinion of the commission would unfairly burden the employers in a class; or

(d) subject to the approval of the Lieutenant-Governor in Council, by way of providing a special fund to be used to meet the costs of particular needs of the commission that it considers necessary.

(2) The commission may, in respect of an industry or class where it is considered expedient, assess and collect in each year a sufficient amount to provide capitalized reserves which are considered sufficient to meet the periodical payments accruing in future years in respect of injuries during each year.

(3) Where classes are rearranged in accordance with section 94 the commission may make the adjustment and disposition of the funds, reserves and accounts of the classes affected that it considers just.

1983 c48 s104

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Payment in arrears

117. An employer who does not pay an assessment or a special assessment when it is due shall pay as a penalty for his or her default the prescribed percentage upon the amount unpaid, and the percentage may be added to the amount of the assessment and payment enforced under section 118.

1983 c48 s105

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Where default

118. (1) Where default is made in the payment of an assessment or special assessment or a part of it the commission may issue its certificate stating that the assessment was made, the amount remaining unpaid on account of it and the person by whom it was payable and the certificate or a copy of it certified by the secretary or chief executive officer of the commission to be a true copy may be filed in the Registry of the Supreme Court or with a Provincial Court judge and when filed shall become an order of the Trial Division or the Provincial Court and may be enforced as a judgment of the Trial Division or the Provincial Court against that person for the amount mentioned in the certificate.

(2) Where an employer defaults in the payment of an assessment and an execution issued upon a judgment entered with respect to the assessment is returned indicating with a certificate from a sheriff or his or her deputy that he or she was unable to satisfy the execution in full and the employer continues to carry on an industry in which workers are employed, a judge of the Trial Division, upon an application made on behalf of the commission by chambers summons, without the issue of a writ or the beginning of an action, may restrain the employer from carrying on an industry until the amount due on the execution and assessments made by the commission and the costs of the application are paid.

1983 c48 s106; 1986 c42 Sch B; 1987 c41 s24

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Board may withhold money

119. Where the commission owes money to the employer who has defaulted on payment of an assessment, the commission may withhold as much money owed to the employer as is owing by the employer on payment of his or her assessment, and the money withheld by the commission shall be considered as full or partial payment by the employer for the assessment payment.

1983 c48 s107

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Assessment where work contracted

120. (1) Where work is undertaken for a person, in this section called the principal, by a contractor, both the principal and contractor are liable for the amount of an assessment in respect of the work and the assessment may be levied upon and collected from either of them, or partly from 1 and partly from the other, but in the absence of a term in the contract to the contrary the contractor is as between himself or herself and the principal primarily liable for the amount of the assessment.

(2) Where work is performed under a subcontract, the principal, the contractor and the subcontractor are liable for the amount of assessment in respect of the work, and the assessment may be levied upon and collected from any or all of them, but in the absence of a term in the subcontract to the contrary the subcontractor is primarily liable for the amount of the assessment.

(3) The commission may consider

(a) a contractor or subcontractor who has not been assessed with respect to the work carried on by him or her as contractor or subcontractor, or a worker of the contractor or subcontractor to be a worker of the principal; and

(b) a worker of a subcontractor to be a worker of the contractor with respect to an industry,

but in the absence of a term in the contract or subcontract to the contrary,

(c) the principal is entitled to recover from the contractor the amount or proportionate part of an assessment paid by the principal with respect to the contractor or his or her workers or with respect to the subcontractor or his or her workers; and

(d) the contractor is entitled to recover from the subcontractor the amount or proportionate part of an assessment paid by the contractor with respect to the subcontractor or his or her workers.

(4) Where a principal is liable for an assessment with respect to work carried on by a contractor,

(a) the principal is entitled to withhold from money payable to the contractor an amount which the commission may estimate as the probable amount for which the principal is or may become liable; and

(b) in an action that the contractor may bring against the principal the principal has the right to set off the amount against the contractor and the contractor is not entitled to recover from the principal a portion of the amount,

but after the final adjustment by the commission of the amount due with respect to the work carried on by the contractor, the contractor is entitled to an amount still remaining in the hands of the principal after payment of the amount due the commission.

(5) As between a contractor and subcontractor the contractor is for the purpose of this section considered a principal and the subcontractor a contractor.

1983 c48 s108

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Mechanics' Lien Act

121. In the case of work or service performed by an employer in an industry for which the employer would be entitled to a lien under the Mechanics' Lien Act, the owner shall see that a sum which the employer is liable to contribute to the injury fund is paid, and where the owner fails to do so he or she is personally liable to pay it to the commission and the commission has the same powers and is entitled to the same remedies for enforcing payment as it possesses or is entitled to in respect of an assessment.

1983 c48 s109

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Assessment as lien

122. (1) There shall be included among the debts which under the Corporations Act or the Trustee Act are in the distribution of the property in the case of an assignment or death or in the distribution of the assets of a company being wound up under either of those Acts to be paid in priority to other debts the amount of an assessment the liability for which accrued before the date of the assignment or death or before the date of the beginning of the winding-up and those Acts have effect accordingly.

(2) Notwithstanding paragraph 124(d), the amount of an assessment is a 1st lien upon the property of the person to whom the assessment is charged, subject to municipal taxes and a lien with respect to wages under the Mechanics' Lien Act 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.

(3) In subsection (2) the words "amount of an assessment" include a percentage payable under section 117.

1983 c48 s110; 1986 c12 Sch; 1987 c38 Sch B

PART IX
REGULATIONS

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General regulations

123. (1) Subject to the approval of the Lieutenant-Governor in Council, the commission may make regulations that are considered necessary for the administration of this Act and may prescribe the form and use of payrolls, records, reports, certificates, declarations and documents that may be required.

(2) Subject to the approval of the Lieutenant-Governor in Council, the commission may by regulation prescribe penalties for the violation of this Act or of rules, regulations or orders made under the authority of this Act.

(3) Regulations made under this section may be made with retroactive effect.

1983 c48 s111

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Regulations re fishers

124. The commission may make regulations

(a) providing that methods of calculating and levying assessments additional to or different from the methods otherwise provided under this Act may be used for levying assessments for the purpose of this Act on commercial buyers and other commercial recipients of fish, and on a person engaged within the province in transmitting payments to fishers for fish whether landed within the jurisdiction of the province or elsewhere;

(b) creating obligations, different from the provisions of this Act, upon commercial buyers and commercial recipients of fish, and masters of fishing vessels, to report to the commission injuries and industrial diseases sustained by fishers, and to provide transportation for initial medical treatment;

(c) excluding a portion of the fishing industry or a category of workers or employers in that industry to whom a provision of this Act would otherwise apply from the application of that provision, and to substitute provisions contained in regulations made under this section;

(d) providing for the priority in relation to assessment on persons covered by section 40; and

(e) providing for other matters incidental or related to the matters set out in this section or section 40.

1983 c48 s112

PART X
PENALTY

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Penalty

125. (1) A person who violates this Act or rules, regulations or orders made under the authority of this Act is guilty of an offence and liable on summary conviction to a fine not exceeding $500 or to imprisonment for a term not exceeding 3 months or to both a fine and imprisonment.

(2) A person who is convicted of violating this Act or regulations, rules or orders made under this Act and who fails after the conviction to comply with this Act or the regulations, rules or orders made under this Act for the breach of which he or she was convicted is guilty of an additional offence for each day his or her failure continues and is liable, on summary conviction, to a fine for each offence of not less than $25 and not exceeding $100 or to imprisonment for a term not exceeding 6 months.

(3) Penalties imposed under the authority of this Act shall, when collected, be paid over to the commission and shall form part of the injury fund.

1983 c48 s113

PART XI
REVIEW

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Review committee

126. (1) In this section "committee" means a committee appointed under subsection (2).

(2) The Lieutenant-Governor in Council shall at least once in every 5 years appoint a committee of at least 3 members which shall review, consider, report and make recommendations to the Lieutenant-Governor in Council upon matters respecting this Act and the regulations and the administration of each as the committee considers appropriate and upon other matters which the Lieutenant-Governor in Council or the minister may refer to the committee.

(3) The Lieutenant-Governor in Council shall, when appointing a committee,

(a) designate 1 member of the committee to be the chairperson and another member to be the vice-chairperson of the committee;

(b) fix the quorum for meetings of the committee; and

(c) prescribe the period within which or the time before which the committee shall report or make its recommendations to the Lieutenant-Governor in Council.

(4) Each member of the committee shall be paid expenses which he or she actually incurs in the performance of his or her duties as a member of the committee and which in the opinion of the minister are reasonable and each member, not being an employee of the government of the province, may be paid for his or her services the remuneration that the Lieutenant-Governor in Council fixes.

(5) The minister shall provide the technical, clerical and other help that may reasonably be necessary to help the committee and fix the rates of remuneration which shall be paid for that help.

(6) The commission shall, out of the injury fund, pay the expenses and remuneration of members of the committee provided for in subsection (4) and bear the cost of the technical, clerical and other help provided for in subsection (5).

(7) The chairperson and, in the absence of the chairperson, the vice-chairperson of the committee have the powers which may be conferred upon a commissioner under section 2 of the Public Inquiries Act and which a commissioner has under subsection 3(1) of that Act and subsections 3(2) and (3) of that Act apply to persons required to give evidence before the committee.

1983 c48 s114

©Earl G. Tucker, Queen's Printer