Be it enacted by the Lieutenant-Governor and
House of Assembly in Legislative Session convened, as follows:
Short title
1. This
Act may be cited as the Workplace Health,
Safety and Compensation Act, 2022.
Interpretation
2. (1)
In this Act
(a) "board of directors" means the board of directors appointed under section 6;
(b) "chief executive officer" means the
person appointed under section 8;
(c) "chief review commissioner" means
the person appointed under subsection 33(2);
(d) "cohabiting partner" means either of 2 persons who are cohabiting and
(i) have cohabited
continuously in a conjugal relationship outside marriage for not less than one
year, or
(ii) have entered into a
written agreement in respect of their cohabitation, in which they agree on
their respective rights and obligations during cohabitation, upon ceasing to
cohabit or upon the death of either of them;
(e) "commission" means the Workplace Health, Safety and Compensation Commission
continued under section 5;
(f) "compensation" means compensation paid in accordance with this Act to a worker
or dependents in respect of an injury;
(g) "dependent" means a family member of a worker who is wholly or partly
dependent upon the worker's earnings at the time of the death of the worker or
who, but for the incapacity due to the injury, would have been dependent;
(h) "director" means, except in Part I, a director of a corporation;
(i) "disability" means the loss of earning capacity of a worker as a result of an
injury;
(j) "earnings" includes
a share or portion of proceeds or profits referred to in subparagraph (jj)(i);
(k) "employer" means an employer to whom this Act applies and who is engaged in
or in connection with an industry in the province and includes
(i) a person who has in
service under a contract of hiring or apprenticeship, written or oral, express
or implied, a person engaged in work in or in connection with an industry,
(ii) the principal,
contractor and subcontractor referred to in section 144,
(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 as employer submit to the operation of
this Act,
(vi) the Crown and a corporation,
commission or similar body, established by or under an Act of the province, and
(vii) in respect of 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;
(l) "employer-sponsored pension plan" includes
(i) a pension plan that
is registered with and certified by the Superintendent of Pensions under the Pension
Benefits Act, 1997 or an equivalent Act of another province or of the
Parliament of Canada, and
(ii) a pension plan that
is established under an Act of the province;
(m) "employment" means 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 part of the
industry that would if carried on separately be within the scope of this Act;
(n) "extended earnings loss benefits"
means those benefits established as extended earnings loss benefits by a policy
established by the board of directors under subsection 7(1);
(o) "family member" includes spouse, cohabiting partner, parent, grandparent,
stepparent, child, grandchild, stepchild, sibling, half-sibling and a person
who stood in place of a parent to the worker or to whom the worker stood in
place of a parent;
(p) "fishing" means fishing for gain, other than for sport, in tidal waters,
and includes
(i) fishing for
anadromous fish while in those waters,
(ii) work performed in
the functioning of the vessel used for fishing while fishing or proceeding to
or returning from fishing, and
(iii) other work
incidental to or connected with fishing usually performed by persons engaged in
fishing;
(q) "former Act" means the Workplace Health, Safety and Compensation
Act;
(r) "health care" means
(i) medical, surgical
and dental care,
(ii) hospital and skilled
nursing services,
(iii) a prosthesis or
apparatus and the repairing and replacement of them,
(iv) transportation, and
(v) other matters and
things that the commission may authorize or provide;
(s) "health care provider" means a
member of a regulated health profession;
(t) "impairment" means a physical or functional abnormality or loss, including a
disfigurement, as a result of an injury;
(u) "industry" includes
the whole or a part of an industry, operation, undertaking, establishment,
work, trade or business that is not excluded by section 45;
(v) "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) occupational
disease, or
(v) death as a result of
an injury
arising out of and
in the course of employment and includes a recurrence of an injury and an
aggravation of a pre-existing condition but does not include stress other than
stress that is a reaction to a traumatic event or events;
(w) "injury fund " means the fund referred to
in section 114;
(x) "maximum compensable assessable
earnings" means the maximum compensable assessable earnings prescribed in
the regulations;
(y) "medical practitioner" means medical
practitioner as defined in the Medical
Act, 2011;
(z) "minister" means, except where the
context indicates otherwise, the minister appointed
under the Executive Council Act to administer this Act;
(aa) "municipality" includes the City of St. John's, the City of Corner Brook,
the City of Mount Pearl and a town, community, region and local service
district, established or continued under the Municipalities Act, 1999;
(bb) "net earnings" means a worker's 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 tables produced by Canada Revenue
Agency;
(cc) "occupational disease" means a disease prescribed in the regulations and another disease
peculiar to or characteristic of a particular industrial process, trade or
occupation;
(dd) "policy" means a policy established by the board of directors under subsection
7(1);
(ee) "review board" means the Workers'
Compensation Independent Review Board continued under
section 32;
(ff) "review commissioner" means a person appointed under section 33 and where the context
indicates, includes the chief review commissioner;
(gg) "security interest" means an interest in property that secures payment or performance
of an obligation;
(hh) "spouse" means either of 2 persons 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, or
(iii) have gone through a
form of a marriage with each other, in good faith, that is void and are
cohabiting or have cohabited with each other within the preceding year;
(ii) "work training program" means work
(i) of a type, whether or not this Act applies to that work, that is
designated by the authorities of an educational institution as being suitable
for student training, and
(ii) for which the student is not compensated by the employer; and
(jj) "worker" means a person who enters 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 receive 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 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
preliminary to employment,
(iii) a part-time or
casual worker, and
(iv) an executive
officer, manager or director of an employer.
(2) Notwithstanding paragraph
(1)(v), stress that may be the result of an employer's decision or action
relating to the employment of a worker including a decision to change the work
to be performed or the working conditions, to discipline the worker or to
terminate the worker's employment does not constitute an injury.
Human Rights Act,
2010
3. (1) A provision of this Act or the regulations, or a decision or
policy made under this Act or the regulations, that requires or authorizes a
distinction because of age shall apply notwithstanding sections 5, 9 and 14 of
the Human Rights Act, 2010.
(2) Subsection (1)
applies, with the necessary changes, to a predecessor to this Act or the
regulations or a decision or policy made under that Act or regulation.
PART I
THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION
Definition
4. In this Part, "director" means a member of the
board of directors appointed under section 6.
Commission
continued
5. The Workplace Health, Safety and Compensation Commission is
continued.
Board of
directors
6. (1) A board of directors of the commission shall be responsible
for the administration of this Act and the regulations.
(2) The board of
directors shall consist of
(a) the following persons appointed by the
Lieutenant-Governor in Council:
(i) 3 persons
representative of employers, a minimum of one whom shall be recommended by the
Newfoundland and Labrador Employers' Council Inc.,
(ii) 3 persons
representative of workers, a minimum of one whom shall be recommended by the
Newfoundland and Labrador Federation of Labour,
(iii) 3 persons
representative of the general public, one of whom represents injured workers,
and
(iv) one person appointed
as the chairperson;
(b) an employee of the department responsible for
the Occupational Health and Safety Act
who is designated by the minister responsible for that department, who shall be
a non-voting member; and
(c) the chief executive officer, who shall be a
non-voting member.
(3) A member of the board appointed under
paragraph (2)(a) holds office for a term of 3 years and is eligible for
reappointment.
(4) Notwithstanding subsection (3), where the term of office of a member of the board of directors
expires, the member continues to be a member until re-appointed or replaced.
(5) The remuneration,
benefits and expenses of members appointed under paragraph (2)(a) 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.
Duties and powers
7. (1)
The board of directors shall establish policies and programs in relation to
(a) compensation benefits to injured workers and
dependents;
(b) rehabilitation and return to work of injured
workers;
(c) health care;
(d) assessments and investments under this Act;
and
(e) promotion of health and safety in workplaces
and the prevention and reduction of workplace injuries and diseases.
(2) The policies and programs referred to in
subsection (1) shall
(a) be consistent with this Act and the
regulations;
(b) ensure that the intent of this Act and the
regulations is being applied to provide services to injured workers and
dependents; and
(c) promote adequate funding for the services
through sound financial management.
(3) The board of
directors shall
(a) establish the functions and duties of the
chief executive officer;
(b) 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 13;
(c) enact by-laws for
the adoption of a seal and for the conduct of the business and affairs of the
commission;
(d) establish, maintain
and regulate advisory committees and their function and composition; and
(e) review this Act and the
regulations and recommend to the minister those changes that it considers
advisable.
(4) 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.
(5) The board of directors
in exercising their powers and discharging their duties shall
(a) act honestly and in
good faith with a view to the best interests of the commission; and
(b) exercise the care,
diligence and skill that a reasonably prudent person would exercise in
comparable circumstances.
Chief executive
officer
8. The Lieutenant-Governor in Council shall appoint, after
consultation with the board of directors, a chief executive officer of the
commission who shall be responsible for the day-to-day administration of this
Act and the regulations.
Commission staff
9. (1)
The commission shall hire the employees it considers
necessary for the purpose of administering this Act and the regulations and
carrying out the business and affairs of the commission.
(2) The commission shall
designate the classifications of persons appointed under subsection (1) and may
pay their salaries out of the injury fund.
Offices of
commission
10. 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.
Property of
commission
11. (1)The commission may
(a) acquire property by purchase,
gift or otherwise;
(b) erect the buildings
that it considers necessary for its purposes; and
(c) sell, lease or deal
in another manner with its real property.
(2) Notwithstanding subsection (1), where an acquisition, sale, lease or dealing equals or
exceeds the amount prescribed in the regulations, the approval of the
Lieutenant-Governor in Council is required.
Financial power
12. (1) The commission may
(a) invest funds arising
under this Act and other money under its control and sell securities and
reinvest the proceeds 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 amounts 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.
Audits of
commission
13. (1) The Lieutenant-Governor in Council may appoint an auditor to
audit the accounts of the commission and the remuneration of the auditor shall
be paid by the commission.
(2) The auditor general
shall audit the accounts of the commission whenever the auditor general
considers it expedient to do so.
Report under
Transparency and Accountability Act
14. An annual report, as required by and in accordance with the
requirements of the Transparency and Accountability Act, shall be
submitted by the commission in accordance with that Act.
Business
15. 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.
No liability
16. An action or other proceeding does not lie against the
commission or a director, officer or employee of the commission for anything
done or omitted to be done in good faith in the course of exercising a power or
carrying out a duty under this Act or the regulations.
Agreements
17. The
commission may enter into agreements with other persons that are, in the
opinion of the commission, advisable for the administration of this Act and the
regulations.
Powers re
examination
18. (1) An employee or other person authorized by the commission
may examine and inquire into a matter that the commission considers necessary
for the purpose of this Act.
(2) A person acting
under subsection (1) may
(a) at reasonable times
enter a premises;
(b) require the
production of books, records or other documents applicable to the examination
or inquiry and may examine those books, records or documents or remove them for
the purpose of making copies of them; and
(c) 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.
(3) Where books, records
or other documents are removed under paragraph (2)(b), the person who removes
the items shall give to the person from whom those items were taken a receipt
for them and shall immediately make copies of them and return the originals to
the person who was given the receipt.
Information
confidential
19. (1) Employees
of the commission or persons authorized to examine or
inquire into a matter under this Act shall not disclose, except in the
performance of their duties or under the authority of the commission,
information obtained by them or which has come to their knowledge as a result
of the examination or inquiry.
(2) Notwithstanding subsection (1), the commission
may allow information referred to in subsection (1) or other information
contained in the records or files of the commission to be disclosed to
(a) legal counsel; or
(b) another authorized representative either of a
person seeking compensation or of another interested person.
Exclusive
jurisdiction
20. (1)
The commission has exclusive jurisdiction to examine,
hear and determine all matters and questions arising under this Act and all
matters or things in respect of which a power or authority is conferred upon
the commission.
(2) Subject to Part III,
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.
Stated case
21. 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 Supreme Court 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 Supreme Court 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.
Rules for stated
case
22. (1) The Judicature Act and the Rules of the Supreme Court,1986 where they can be applied and are
consistent with this Act, shall apply to a proceeding with respect to a stated
case under section 21.
(2) A notice or other
document required to be served on the commission may be served on the
chairperson or, in the absence of the chairperson, the chief executive officer
of the commission.
Notification of
stated case
23. The Supreme Court has power, with respect to stated cases
referred to in section 21, to direct that a person interested, or, where there
is a class of persons interested, one or more persons as representatives of
that class, shall be notified of the hearing and those persons are entitled to
be heard.
PART II
WORKPLACE HEALTH AND SAFETY
Definitions
24. In
this Part,
(a) "department" means the department presided
over by the minister; and
(b) "minister" means the minister
responsible for the Occupational Health
and Safety Act.
Application of Part
25. (1) This Part applies to workplaces to which, and to workers
and employers to whom, the Occupational Health and Safety Act or Part
III.1 of the Canada-Newfoundland and Labrador Atlantic Accord Implementation
Newfoundland and Labrador Act applies.
(2) Notwithstanding
section 2, words used in this Part that are defined in the Occupational
Health and Safety Act have the meaning given to them by that Act.
(3) Notwithstanding
subsection (2), where a workplace is situated within the offshore area, as
defined in the Canada-Newfoundland and Labrador Atlantic Accord
Implementation Newfoundland and Labrador Act, words used in this Part that
are defined in Part III.1 of that Act have the meaning given to them by that
Act.
Duties of
commission
26. In order to promote health and safety in workplaces and to
prevent and reduce the occurrence of workplace injuries and diseases the
commission shall
(a) promote public
awareness of workplace health and safety;
(b) educate employers,
workers and other persons about workplace health and safety;
(c) provide services to
occupational health and safety committees, worker health and safety
representatives and workplace health and safety designates established or
appointed under the Occupational Health and Safety Act and coordinators and
committees designated or established under Part III.1 of the Canada-Newfoundland
and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act;
(d) promote and provide
funding for workplace health and safety research;
(e) develop standards
for the certification of persons required to be certified under the Occupational
Health and Safety Act and approve training programs, training providers and
trainers for certification;
(f) certify persons and
programs who meet the standards referred to in paragraph (e);
(g) foster commitment to
a high standard of workplace health and safety among employers, workers and
other persons;
(h) make recommendations
to the department respecting workplace health and safety;
(i) promote and provide funding to industry-based
safety associations established to promote occupational health and safety; and
(j) conduct safety audits of workplaces and offer
services to promote occupational health and safety in the workplace.
Cooperation
between commission and occupational health and safety division
27. Where it is necessary to give effect to this Part and the Occupational
Health and Safety Act, the commission shall
(a) co-operate with the
Occupational Health and Safety Division of the department; and
(b) disclose information
to that division.
Cooperation
between commission and Canada-Newfoundland and Labrador Offshore Petroleum
Board
28. Where it is necessary to give effect to this Part and Part
III.1 of the Canada-Newfoundland and Labrador Atlantic Accord Implementation
Newfoundland and Labrador Act, the commission shall
(a) co-operate with the
Canada-Newfoundland and Labrador Offshore Petroleum Board; and
(b) disclose information
to that board.
Administrative
costs
29. The commission shall pay from its assessment and revenue
income the cost of the occupational health and safety division in the department
and the cost of annual grants made by the minister under section 64 of the Occupational
Health and Safety Act to a maximum of 5% of its total assessment and
investment income in each calendar year.
Research fund
30. (1)
The commission shall allocate a maximum of 2% of its
total assessment and investment income in each calendar year to establish and
maintain a special fund for the purpose of workplace health and safety
research.
(2) The commission shall
administer the fund referred to in subsection (1) and approve expenditures for
workplace health and safety research.
PART III
EXTERNAL REVIEWS
Definition
31. In
this Part, "party" means
(a) a worker or where the worker is deceased a
dependent of the deceased worker;
(b) an employer; and
(c) the commission.
Review board
continued
32. The review division established under the former Act is
continued as the Workers' Compensation Independent Review Board and shall be responsible
for the review of decisions of the commission in accordance with this Part.
Review board
33. (1) The Lieutenant-Governor in Council shall on the
recommendation of the minister appoint to the review board a panel of persons
to act as review commissioners.
(2) A panel appointed
under subsection (1) shall not exceed 7 persons, one of whom shall be appointed
by the Lieutenant-Governor in Council as chief review commissioner.
(3) The terms of office,
remuneration, benefits and expenses of the review commissioners shall be
determined by the Lieutenant-Governor in Council.
(4) A review
commissioner shall hold office during good behaviour for a term that the
Lieutenant-Governor in Council may establish.
(5) Notwithstanding subsection (4), where a person ceases to be a review commissioner, the
person may, with the approval of the chief review commissioner,
(a) carry out and
complete any duties or responsibilities; and
(b) continue to exercise
any powers
that the person
may have had if the person had not ceased to be a review commissioner in
relation to a specific proceeding in which the person had participated as a
review commissioner.
Officers and
employees
34. (1) There may be employed, in the manner provided by law, those
officers, employees and advisors of the review board that are necessary to
enable the review board to carry out its functions and the Lieutenant-Governor
in Council may fix their terms of service.
(2) Notwithstanding
subsection (1), those officers and employees employed with the appeal tribunal
existing under Part II on June 30, 1994 who are considered by the minister to
be necessary for the operations of the review division existing under Part II
on July 1, 1994 shall be considered to have been employed in accordance with
subsection (1).
(3) The
Lieutenant-Governor in Council may determine the remuneration for services and
allowances for travelling and other expenses that shall be paid to the
officers, employees and advisors employed under subsection (1).
No liability
35. An action or other proceeding does not lie against the chief
review commissioner, the other review commissioners and the officers, employees
and advisors of the review board for anything done or omitted to be done in
good faith in the course of exercising a power or carrying out a duty under
this Act or regulations.
Expenses
36. Expenses incurred in the administration of the review board,
including those under section 34, shall be paid out of the Consolidated Revenue
Fund and that fund shall be reimbursed by money from the injury fund.
Review
commissioner bound
37. A review commissioner shall be bound by this Act, the
regulations and policy.
Rules
38. (1)
The review board may, subject to the approval of the
Lieutenant-Governor in Council, in relation to the review of decisions as
referred to in section 40, prescribe by regulation rules of procedure and
evidence.
(2) The review board may
order the type and nature of information to be provided by a person to a review
commissioner before or during a review and that person shall provide the
information to the review commissioner.
(3) For the purpose of
the review of a decision as referred to in section 40, a review commissioner
has the powers that are conferred on a commissioner under the Public
Inquiries Act, 2006, and a review commissioner is considered to be an
"investigating body" for the purpose of the Public Investigations
Evidence Act, and there shall be full right to examine and cross-examine
witnesses called to bring forward evidence in response and reply, and the Public
Inquiries Act, 2006 shall apply to those witnesses.
Application to
review commissioner
39. (1) A party or an agent acting on behalf of a party with the
party's written consent, may apply to the chief review commissioner for the
review of a decision as referred to in subsection 40(1), within 30 days of
receiving the written decision of the commission.
(2) The chief review
commissioner may accept an application after the time prescribed in subsection
(1) upon review of a written application for an extension of time by the party
requesting the review, but an application for review of a decision shall not be
accepted more than one year from the date the commission's decision was
communicated to the party making the application.
(3) An application under
subsection (1) shall be in writing and shall identify how the decision is
contrary to this Act, regulations or policy.
(4) Where an application
does not comply with subsection (3) a review commissioner shall refuse to
review a matter until the applicant complies with subsection (3).
(5) Where an applicant
does not comply with subsection (3) within 30 days of receiving notification
from the review board of the non-compliance, the decision of the commission
shall not be reviewed under this Part.
(6) Where an application is made under subsection
(1), the chief review commissioner shall
(a) review the application; or
(b) refer the application to another review
commissioner.
Review by review
commissioner
40. (1) Upon receiving an application under section 39, a review
commissioner may review a decision of the commission to determine if the
commission, in making that decision, acted in accordance with this Act, the
regulations or policy as they apply to
(a) compensation
benefits;
(b) rehabilitation and
return to work services and benefits;
(c) an employer's
assessment;
(d) the assignment of an
employer to a particular class or group;
(e) an employer's merit
or demerit rating; and
(f) the obligations of
an employer and a worker under Part VII.
(2) A review
commissioner shall not review a decision under subsection (1) except in accordance
with subsection (1).
(3) A
review commissioner may require a hearing of an application under this Part to
be conducted
(a) orally,
including by telephone, teleconference or other electronic means which
enables the parties to participate in the hearing instantaneously and
simultaneously;
(b) in
writing; or
(c) partly
orally and partly in writing.
(4) The commission shall
have standing and may be heard and make representations itself or through an
agent acting on its behalf on a matter being reviewed by a review commissioner
and at further proceedings arising out of that matter.
(5) A party may appear
before the review commissioner or be represented by counsel or an agent and may
accompany and appear with the counsel or agent before the review commissioner.
(6) Where
a person other than a party has
(a) an
interest in a matter before the review commissioner; and
(b) notified
the review commissioner in writing of the intention to appear,
that person has the right to appear before the review commissioner or to be
represented by counsel or an agent.
(7) A
review commissioner to which a matter has been referred for review shall
(a)
notify each party and a person referred to in subsection (6) of the time, manner
and place set for the review; and
(b) review
the decision of the commission and determine whether it was in accordance with
this Act, the regulations or policy.
(8) Where a party or a
person referred to in subsection (6) fails to attend, in person or by counsel
or agent the review commissioner may proceed to examine witnesses and to review
and adjudicate on the matter being reviewed unless
(a) that failure to
attend is due to circumstances beyond the party or person's control; and
(b) that party or person has,
by written notice, advised the review commissioner of the wish to attend and
sets out, in the notice, the circumstances that prevent the attendance.
(9) A review commissioner may disclose information
to the parties or other persons involved in the hearing where the review
commissioner determines that the disclosure of the information is necessary for
the purposes of the hearing.
(10) A party or other person who receives
information in accordance with subsection (9) may only use the information for
the purposes of the hearing.
(11) Where a review
commissioner determines that the decision of the commission was in accordance
with this Act, the regulations and policy, the review commissioner shall
confirm the decision of the commission.
(12) Where a review
commissioner determines that the decision of the commission was not in
accordance with this Act, the regulations or policy, the review commissioner
shall identify how the decision of the commission was contrary to this Act,
regulations or policy, specify the contravened provision, set aside the
decision of the commission and
(a) make a decision
which is in accordance with this Act, regulations and policy; or
(b) where it is
appropriate to have a new decision from the commission, refer the matter to the
commission for a new decision with or without direction on an appropriate
remedy.
(13) Where a matter is
referred to the commission under paragraph (12)(b), the review commissioner
shall not review a new decision except where a new application is made under section
39.
(14) A decision of a
review commissioner shall be communicated by the review commissioner, with
reasons, to each party and any persons referred to in subsection (6), within
(a) 60 days of the date
of the hearing, where an oral hearing is held; or
(b) 60 days of the date written submissions are
due, where an oral hearing is not held.
(15) An order or decision
of a review commissioner is final and conclusive and is not open to question or
review in a court of law and proceedings by or before a review commissioner
shall not be restrained by injunction, prohibition or other process or
proceedings in a court of law or be removable by certiorari or otherwise
in a court of law.
Application for
reconsideration
41. (1) A party or an agent on behalf of the party may apply, in
writing, to the chief review commissioner for a reconsideration of a decision
of a review commissioner, including the chief review commissioner.
(2) An application under
subsection (1) shall be made within 30 days of receipt of the decision that is
the subject of the reconsideration.
(3) The chief review
commissioner shall review the application and, where the chief review
commissioner determines that reconsideration is appropriate, the chief review
commissioner shall
(a) reconsider the decision;
or
(b) order that the
decision be reconsidered by another review commissioner who did not make the
decision.
(4) The chief review
commissioner shall notify each party and any person referred to in subsection
40(6) of an application under subsection (1) within 10 days of receiving the
application.
(5) Where the decision
to be reconsidered was made by the chief review commissioner, the chief review
commissioner shall refer the application to a different review commissioner who
may in the review commissioner's discretion order that the decision be
reconsidered, and conduct the reconsideration where one is ordered.
(6) The decision of a review commissioner on the
application for reconsideration shall be communicated by the review
commissioner, with reasons, to each party and any
persons referred to in subsection 40(6),
(a) within 45 days of
the date of the application for reconsideration, where an oral hearing is not
held; and
(b) within 60 days of
the date of the application for reconsideration, where an oral hearing is held.
(7) Subsections 40(11)
to (13) shall apply to the reconsideration process, with the necessary changes.
Conflict of
interest
42. A review commissioner may not review a matter under this Part
where
(a) the review
commissioner has a direct personal interest in that matter; or
(b) the chief review
commissioner determines there is a conflict of interest.
Audits of review
board
43. (1) The Lieutenant-Governor in Council may appoint an auditor to
audit the accounts of the review board and the remuneration of the auditor
shall be paid by the review board.
(2) The auditor general
shall audit the accounts of the review board whenever the auditor general
considers it expedient to do so.
Report under
Transparency and Accountability Act
44. An annual report, as required by and in accordance with the
requirements of the Transparency and Accountability Act, shall be
submitted by the review board in accordance with that Act.
PART IV
APPLICATION OF ACT
Application of
Act
45. (1) This Act applies to workers and employers engaged in or in
connection with an industry in the province except
(a) those industries, employers or workers that the Lieutenant-Governor in Council may exclude by
regulation; and
(b) those employers and workers that the
commission, with the approval of the Lieutenant-Governor in Council, may
exclude by regulation where the commission is of the opinion that the exclusion
is appropriate.
(2) 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 one or
more of the industries, employers or workers otherwise excluded.
Employer covered
46. The
commission may admit an employer in an industry as
being entitled to the same compensation as if the employer were a worker and
the employer's dependents were dependents under this Act.
Coverage for
particular workers
47. (1) The Lieutenant-Governor in Council may, by regulation,
provide that the provisions of this Act apply, in whole or in part, to the
following:
(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;
(f) volunteers engaged
in work or measures under the Emergency Services Act;
(g) volunteers providing
community ambulance services;
(h) volunteers engaged
in search and rescue activities as tasked by the Royal Newfoundland
Constabulary or the Royal Canadian Mounted Police; and
(i) volunteers engaged
in auxiliary policing services.
(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.
Independent
operator
48. The
commission may admit an independent operator who
performs work of a nature that would be within the scope of this Act, as being
entitled to the same compensation as if the independent operator were a worker
and the independent operator's dependents were dependents under this Act.
Work training
programs
49. (1) Where a student is enrolled in an educational institution prescribed
in the regulations and is participating in a work training program, the student
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 the student 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 the maximum compensable assessable
earnings.
(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.
PART V
COMPENSATION AND RIGHT OF ACTION
Compensation
payable
50. (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) Notwithstanding subsection (1), the commission shall pay compensation to a worker whose
injury is attributable solely to the serious and wilful misconduct of the
worker where the worker is seriously and permanently disabled or impaired as a
result of an injury arising out of and in the course of employment.
(3) The commission shall
pay interest on compensation payable for loss of earnings to a worker or
dependents where the payment of that compensation is delayed, for more than 30
days, as a result of circumstances that are in the control of the commission.
(4) The rate of interest
paid under subsection (3) shall be calculated in accordance with the provisions
of the Judgment Interest Act.
Proportionate
compensation
51. Where a worker sustains an injury arising out of and in the
course of employment that
(a) aggravates,
activates or accelerates a condition, disease or disability existing prior to
the injury; or
(b) is aggravated,
activated or accelerated by causes other than the injury,
compensation is
payable for the proportion of the loss of earnings or permanent impairment that
the commission determines is attributable to the injury.
Compensation
instead of action
52. (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 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, dependents,
the worker's personal representative 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.
No compensation
53. (1) Section 52 shall not apply where the worker is injured or
killed
(a) while being
transported in the course of the worker's employment by a mode of
transportation in respect of which public liability insurance is required to be
carried; or
(b) as a result of an
accident involving the use of a motor vehicle by the worker or another person,
in the course of the worker's employment.
(2) In subsection (1) "motor
vehicle" means
(a) a motor vehicle,
whether or not it is being operated on a highway, that is
(i) registered under the
Highway Traffic Act, or
(ii) authorized under
section 12 or 13 of the Highway Traffic Act to be operated on a highway
in the province without being registered under that Act; or
(b) another motor vehicle while being operated on
a highway in the province.
(3) For the purposes of the definition of motor
vehicle in subsection (2), "highway" means a highway as defined in
the Highway Traffic Act.
Where action
allowed
54. (1) Where a worker sustains an injury in the course of the
worker's employment in circumstances which entitle the worker or dependents to
an action
(a) against a person
other than an employer or worker;
(b) against an employer
or against a worker of that employer where the injury occurred otherwise than
in the conduct of the operations usual in or incidental to the industry carried
on by the employer; or
(c) where section 53
applies,
the worker or
dependents, where they are entitled to compensation, may claim compensation or
may bring an action.
(2) The worker shall
make an election under subsection (1) within 3 months of the injury and an
application for compensation is a valid election for the purpose of this
section.
(3) The dependents shall make an election under
subsection (1) within 6 months of the injury and an
application for compensation is a valid election for the purpose of this
section.
(4) Where the worker or dependents
elect to bring an action, the worker or dependents shall immediately serve
notice in writing of the election on the commission.
(5) Where the commission
is satisfied that due to a physical or mental incapacity a worker is unable to
exercise the worker's right of election, and undue hardship will result, the
commission may pay the compensation provided by this Act until the worker is
able to make an election.
(6) Where the worker
referred to in subsection (5) elects not to claim compensation, further compensation
shall not be paid and the compensation that has been paid shall be a first lien
against an amount that may be recovered.
(7) Where a person who
is required to make an election under this section is under the age of 18
years, the person's parent or guardian may make the election.
(8) Where a worker or dependents
bring an action or settle out of court and less is recovered and collected than
the amount of the compensation to which the worker or dependents would be
entitled under this Act, the worker or dependents are not entitled to claim
compensation under this Act.
(9) Where the worker or
dependents apply to the commission claiming compensation under this Act,
neither the making of the application nor the payment of compensation under it
shall restrict or impair a right of action against the party liable, but in
relation to those claims the commission is subrogated to the rights of the
worker or dependents and may maintain an action in the name of the worker or
dependents or in the name of the commission against the person against whom the
action lies for the whole or an outstanding part of the claim of the worker or
dependents.
(10) The commission has
exclusive discretion to determine whether it shall take an action, release its
claim for an action or compromise the right of action, and its decision is
final.
(11) Where, in an action
under subsection (1), a worker or 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 dependents, the judge shall order that the money owed
be paid to the commission.
(12) Where the commission
is subrogated to the rights of a worker or 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 amount representing the amount of the
excess, less costs and administration charges, shall be paid to the worker or
dependents.
(13) Costs may,
notwithstanding that a salaried employee of the commission acts as its
solicitor or counsel, be awarded to and collected by the commission in an
action taken by the commission under this section.
(14) The commission may,
in an action brought under subsection (9), also recover amounts paid to or on
behalf of a worker or dependents by way of compensation, including amounts paid
as medical expenses, rehabilitation expenses and other expenses paid by the
commission to or on behalf of the worker or dependents.
Commission
decides if action prohibited
55. Where an action in respect of an injury is brought against
an employer or a worker by a worker or 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.
Length of
disability
56. (1) Where an injury disables a worker for only the day on which
the injury occurred, compensation other than health care 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 earnings that the worker would have earned the day on which the injury occurred
as if the worker had not been disabled by the injury.
(3) Where an injury
results in a permanent functional impairment to a worker, the worker is
entitled to compensation for the impairment notwithstanding the fact that there
is no loss of earnings.
Compensation to
non-residents
57. The commission may order that payments of compensation under
this Act be made to persons living in another province, country or jurisdiction
in respect of a worker killed or injured in this province.
Relocation
58. A worker or dependent living in this province may after the
time of the injury relocate outside the province without forfeiting the right
to compensation under this Act.
Injury outside
province
59. (1)
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 dependents are entitled to compensation in the same manner as if the
injury had occurred in the province, unless the worker or 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 earnings of the
worker who sustains the injury, the employer is, except where 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.
No waiver of
benefits
60. Any agreement between an employer and a worker that waives
or purports to waive benefits to which a worker or dependents are or may become
entitled under this Part is void.
Notice of
accident
61. (1) Compensation is not payable to a worker unless
(a) the worker or
another person on behalf of the worker, gives notice of the injury to the
worker's employer immediately after the occurrence of the injury and before the
worker has voluntarily left the employment in which the worker was injured; and
(b) the claim for
compensation is made as follows:
(i) within 3 months from
the occurrence of the injury,
(ii) in the case of an
occupational disease, within 3 months after the worker knew, or ought
reasonably to have known, that the worker suffers from the occupational disease,
and
(iii) 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 referred
to in subsection (1) shall include
(a) the name and address
of the worker;
(b) the cause of the
injury; and
(c) the location where the injury occurred.
Failure to give
notice
62. Notwithstanding section 61, failure to give the notice or
to make a claim or a defect or inaccuracy in the notice does not bar the right
to compensation where, in the opinion of the commission, the failure, defect or
inaccuracy was due to circumstances beyond the worker's control and the
employer was not prejudiced by the failure, defect or inaccuracy.
Mitigation of
injury
63. (1)
A worker shall
(a) take all reasonable
steps to reduce or eliminate a permanent impairment and loss of earnings
resulting from an injury;
(b) seek out and
co-operate in any health care or treatment that, in the opinion of the
commission, promotes the worker's recovery and return to work;
(c) take all reasonable
steps to provide to the commission full and accurate information on a matter
relevant to a claim for compensation; and
(d) notify the
commission immediately of a change in circumstances that affects or may affect
the worker's initial or continuing entitlement to compensation.
(2) The commission may
suspend, reduce or terminate any compensation otherwise payable to a worker
where the worker fails to comply with subsection (1).
Application for
compensation
64. (1) Where a worker or dependent applies for compensation the
worker shall file with the commission
(a) an application for compensation;
(b) a report of the medical
practitioner, chiropractor or physiotherapist treating the worker; and
(c) other proof of the
worker's claim that may be required by the commission.
(2) Notwithstanding paragraph (1)(b), the commission
may accept a report of a nurse practitioner, where the commission determines it
necessary.
Duties of
employer
65. (1) An employer shall give the commission written notice of any,
or the possibility of any, work-related injury to a worker that comes to the attention
of the employer within 3 days of receiving the information.
(2) The written notice referred to in subsection
(1) shall include the following information:
(a) the occurrence and
nature of the injury;
(b) the time the injury
occurred;
(c) the name and address
of the worker;
(d) the place where the injury occurred; and
(e) other particulars
required by the commission.
(3) An employer shall
make additional reports respecting the injury and workers that may be required
by the commission.
Duties of health
care provider
66. A health care provider who attends to or is consulted with
respect to an injury to a worker shall
(a) provide reports to
the commission in respect to the injury in the form required by the commission;
(b) give reasonable and
necessary information, advice and help to the worker to enable the worker or dependents
to apply for compensation; and
(c) provide proof that
may be required by the commission.
Medical records
67. Where a worker applies for compensation, the worker is
considered to have authorized a regional health authority to disclose to the
commission information contained in the records of the regional health
authority.
Medical
information
68. (1) Where the commission receives a request from a worker's
employer for medical information related to the worker and the commission
believes that disclosing the information to the employer is reasonably
necessary for the determination of the worker's fitness to return to work, the
commission may disclose the information to the employer.
(2) Where the commission
discloses information about a worker to an employer under subsection (1), the
worker is considered to have consented to the disclosure of the information.
(3) The commission shall
inform a worker where it discloses information about the worker to the worker's
employer under subsection (1).
Claim
investigated
69. The commission shall investigate and process a claim that
has been filed with the commission at the earliest convenient date.
Proof required
70. (1) An issue related to a worker's entitlement to compensation
shall be decided on a balance of probabilities and, where the evidence on each
side of an issue is equally balanced, the issue shall be decided in favour of
the worker.
(2) The commission may
require the proof which it considers necessary of the existence and status of
dependents who are in receipt of compensation.
Presumption
71. 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.
Medical
examination required
72. (1) The
commission may require a worker applying for or
receiving compensation to submit to a medical examination by the commission or
its appointed officer.
(2) Where a worker does not comply with subsection
(1), the commission may withhold compensation.
Objection to
claim
73. (1) A person who wishes to object to a claim that has been
filed with the commission shall file a notice of objection with the commission
within 10 days after the date the claim was first reported to the person.
(2) A notice of
objection referred to in subsection (1) shall
(a) be in writing;
(b) state the reason for
the objection; and
(c) be personally
delivered to the worker or mailed to the worker's last known address.
(3) Where a notice of
objection referred to in subsection (1) is filed, the commission shall inquire
into the claim within 45 days after the notice of objection is filed.
Power to review
compensation
74. 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 the worker or in the number, circumstances or status
of dependents or otherwise; or
(d) a worker is not
following medically prescribed treatment.
Compensation
where fatal accident
75. (1) Where the death of a worker results from an injury, the
amount of compensation paid to the worker's surviving dependent spouse or
cohabiting partner and children and the expenses paid for the burial of the
worker shall be the amounts prescribed in the regulations.
(2) Notwithstanding
subsection (1), the commission may annually increase the amount of compensation
prescribed in the regulations that is to be paid to the worker's surviving
dependent spouse or cohabiting partner and children by applying the Consumer
Price Index for Canada as published by Statistics Canada.
(3) Where compensation
is not payable under subsection (1) and a person other than those referred to in
subsection (1) is a dependent, an amount 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.
(4) Payments provided
for in subsection (3) shall continue only as long as in the opinion of the
commission it might reasonably have been expected that the worker, had the
worker lived, would have continued to contribute to the support of the dependent.
Payment to a
remarried spouse
76. (1) A person whose monthly allowance as a surviving dependent
spouse was terminated on or after April 17, 1985 due to the person's remarriage
is entitled to receive the compensation that the person would have received had
the monthly allowance not been terminated.
(2) A person whose
monthly allowance as a surviving dependent spouse was terminated before April
17, 1985 due to the person's remarriage is entitled to receive the compensation
that the person would have received on or after April 17, 1985 had the monthly
allowance not been terminated.
(3) Notwithstanding
section 50, interest shall not be paid on compensation which would have been
paid from April 17, 1985 to December 31, 1992.
(4) An amount shall not be
paid under this section to the estate of a person.
(5) Subsection (4) does
not apply to an amount to which a person is entitled under subsection (2) where
the person died after February 9, 2006.
Method of payment
77. The method of calculating compensation under section 75 and
the manner in which compensation is paid under that section shall be prescribed
in the regulations.
Compensation may
be apportioned
78. (1) Where compensation is payable to dependents under section 75,
the commission may apportion the compensation among the dependents in the
manner and to the degree that the commission considers appropriate in the circumstances.
(2) Notwithstanding
subsection (1), the commission shall not pay in respect of dependents a total
amount greater than is provided for the respective dependents under section 75.
Compensation
unpaid at death
79. Where a worker's 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 appropriate.
Household to be
continued
80. Where a worker in relation to whom section 75 applies does
not leave a spouse or cohabiting partner or where the spouse or cohabiting
partner of the worker dies, and in the opinion of the commission it is
desirable to continue the existing household and where a suitable person acts
as a guardian 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 guardian, while so doing, is entitled to receive
the same monthly payments of compensation as if the guardian were the spouse or
cohabiting partner of the deceased.
Payments to
children
81. (1) Payments
made under this Act in respect of a child shall stop when the child reaches the
age of 18 years or where the child dies before reaching the age of 18 years, at
the time of the child's death.
(2) Notwithstanding
subsection (1), compensation is payable in respect of a child 18 years of age or
older where the child has a physical or mental incapacity.
(3) Where subsection (2)
applies, payment to the child shall continue as long as, in the opinion of the
commission, it might reasonably have been expected that the worker, had the
worker lived, would have continued to contribute to the support of the child.
(4) Notwithstanding
subsection (1), where in the opinion of the commission the providing of further
education to a child 18 years of age or older 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 the period of time the child is
completing the education but compensation shall not be paid in respect of the
child after the child reaches the age of 25 years.
Compensation for
disability
82. (1) Where, as the result of an injury, a worker is disabled or
impaired either permanently or temporarily, totally or partially, the
commission shall pay in relation to the worker
(a) health care expenses
as provided for in section 95;
(b) a lump sum payment
for the permanent impairment 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 83.
(2) The maximum and
minimum lump sum payments payable under paragraph (1)(b) shall be prescribed in
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 a payment for a permanent
impairment arising out of an injury.
Lost earning
capacity
83. (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 provide
compensation to the worker on the basis of the estimated loss.
(2) For periods of earnings
loss after March 31, 2018, the rate used for calculating a worker's loss of
earning capacity shall be 85% of the difference between the worker's average
weekly net earnings at the commencement of the worker's loss of earnings
resulting from the injury, subject to the maximum compensable assessable
earnings, and the average weekly net earnings the worker is estimated to be
capable of earning at suitable employment after sustaining that injury.
(3) The commission for
the purpose of subsection (2) may determine that a worker is capable of working
in suitable employment and estimate the earnings the worker could earn in that
employment.
(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 of age or older at the beginning of the
worker's 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.
Compensation to
be reviewed
84. (1)
Extended earnings loss benefits being paid to a
worker may be reviewed periodically by the commission.
(2) Where a worker is in
receipt of extended earnings loss benefits,
(a) the Consumer Price
Index for Canada as published by Statistics Canada shall be applied annually to
the worker's estimated annual earnings before the commencement of the worker's
loss of earnings resulting from the injury; and
(b) the benefits shall
be recalculated in accordance with subsection 83(2).
Retirement
benefits
85. (1) Where a worker who is in receipt of extended earnings loss benefits
on or after January 1, 2019 reaches the age of 65 years, the worker is entitled
to receive a lump sum payment equal to
(a) 5% of extended
earnings loss benefits paid to the worker, together with accrued interest; or
(b) 10% of extended
earnings loss benefits paid to the worker, together with accrued interest,
where the worker is or was at the time of the injury a member of an
employer-sponsored pension plan.
(2) Notwithstanding
subsection (1), a worker to whom subsection 83(5) applies is entitled to a lump
sum payment equal to the amount specified in paragraph (1)(a) or (b) in
relation to all benefits paid under subsection 83(5), together with accrued
interest.
(3) For the purpose of
subsections (1) and (2), the rate of interest is equal to the injury fund's 4
year average net rate of return.
(4) Where a worker dies
before receiving a lump sum payment under subsection (1) or (2), the lump sum
payment shall be paid by the commission to those dependents of the deceased
worker who the commission considers appropriate.
Earning capacity
reviewed
86. 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 because of either of the following:
(a) the worker's age; or
(b) the worker is in the
course of learning a trade, occupation, or profession
the commission may, in
the case of a temporary disability, adjust the amount of compensation and, in
the case of a permanent disability, calculate the payment, by taking into
account the probable increase in average earnings.
Recurrence
87. Where a worker suffers a recurrence of an injury, the
compensation payable to the worker shall be based on the average weekly
earnings at the time of the worker's loss of earnings resulting from the
recurrence of the injury, less compensation the worker is already receiving in
respect of that injury.
Rescue work
88. 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.
Calculation of
earnings
89. (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
maximum compensable assessable 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 an amount of money to cover special
expenses imposed on the worker by the nature of the worker's employment, that
amount shall not be included as part of the worker's earnings.
(4) Where, owing to the
shortness of time during which the worker was employed or due to the casual
nature of the employment, it is inequitable to calculate the rate of
remuneration as of the date of the injury, the rate of remuneration may be
calculated based on the average weekly or monthly amount earned during the 12
months by a person employed at the same work by the same employer or where
there is no person so employed then by a person in the same class of employment
and in the same region.
(5) Where a worker who
is injured is at the time of injury under concurrent contracts of service with
2 or more employers, the worker's average earnings shall be determined as
though the worker's earnings from those employers were earnings from the
employer for whom the worker was working at the time of the injury and,
notwithstanding paragraph 2(1)(bb), the worker's net earnings means the
worker's average earnings as determined under this section less the total of
the amounts described in subparagraphs 2(1)(bb)(i), (ii) and (iii).
(6) Where the commission
determines that it is more equitable, the commission may pay compensation based
on the earnings of the worker at the time of the injury.
(7) Notwithstanding subsection (1), where a worker has received compensation for 13 consecutive
weeks, the commission may review the average annual earnings of the worker
preceding the worker's loss of earnings and adjust the amount of compensation
paid to the worker so that the compensation is more equitably based on the
worker's average annual earnings.
Benefits to be
considered
90. (1) In determining a weekly or monthly payment, the commission
shall consider a payment, allowance or benefit which the worker may receive
from the worker's employer during the period of the worker's disability.
(2) Where compensation
is payable an amount deducted from the compensation under subsection (1) may be
paid to the employer out of the injury fund.
(3) A benefit, relative
to an injury, that a worker is entitled to receive under the Canada Pension
Plan or the Quebec Pension Plan shall be offset from the compensation payable
to the worker for loss of earnings at a rate of 75% of the net benefit.
(4) Where the commission
has, prior to January 1, 1993, considered
Canada Pension Plan or Quebec Pension Plan benefits in calculating compensation
to be paid to a worker, the commission shall not alter the manner in which that
worker's Canada Pension Plan benefits are considered except upon a recurrence
of the worker's injury.
(5) A benefit that a
worker is entitled to receive under an employer-sponsored pension plan shall be
offset from the compensation payable to the worker for loss of earnings at a
rate of 75% of the net benefit.
No amount in
excess of compensation
91. (1)
An employer and a worker shall not enter into an
agreement in which the employer agrees to pay the worker an amount in excess of
the amount that the worker, as a result of an injury, is receiving as
compensation either under this Act or as if the worker were a worker within the
scope of this Act.
(2) Where an employer
and a worker enter into an agreement in contravention of subsection (1), that
agreement is of no effect.
(3) For the purpose of
this section, the word "agreement" means a collective agreement or
other contract of employment.
Payment of
compensation
92. (1) Payments of compensation shall be made in the form and manner
determined by the commission.
(2) In the case of a person
with a mental incapacity, 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 person with the mental incapacity.
(3) Where a person
entitled to compensation is committed 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 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
the person may be paid instead to the person who the commission considers
appropriate.
Compensation not
assignable
93. Except with the approval of the
commission or where there is a court order for support, an amount payable as
compensation shall not
(a) be assigned, charged
or attached;
(b) pass by operation of
law except to a personal representative; or
(c) have a claim set off against it.
Overpayment of
compensation
94. (1) Where the commission determines that it paid an amount of
compensation to a worker, or to another person, as a result of an injury to the
worker, that exceeds the amount to which the worker, or other person, is
entitled, the commission may recover the overpayment from the worker or where
the worker is deceased, from the worker's estate, as a debt due the commission
by action in a court.
(2) In an action commenced as a result of a determination by the commission that it has made an
overpayment of compensation, the court does not have jurisdiction to determine
whether an overpayment occurred or the amount of the overpayment.
PART VI
HEALTH CARE
Where healthcare
needed
95. (1) The commission shall provide a worker who is entitled to
compensation under this Act or who would have been entitled had the worker been
disabled longer than the day of the injury with the health care that in the
opinion of the commission may be necessary as a result of the injury.
(2) The commission may
provide a daily allowance to a worker for the worker's subsistence when, under
its direction, the worker is undergoing treatment at a place other than the
place where the worker ordinarily lives.
(3) A worker referred to
in subsection (1) is entitled to the health care that the commission may decide
is necessary or advisable, including
(a) a prosthesis and
apparatus that may be necessary as a result of an injury;
(b) the repair and replacement of a prosthesis and apparatus;
(c) the repair and replacement of clothing which is damaged or worn by the use of a prosthesis
or apparatus;
(d) the replacement of
an article of clothing destroyed by an injury or the cause of the injury and
the repair or replacement, as the commission may determine, of that article of
clothing;
(e) dental appliances
and apparatus that may be necessary as a result of an injury;
(f) repair and replacement of dental appliances and apparatus;
(g) 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) the repair or replacement of hearing and vision aids.
Health care
96. (1) The supervision and control of health care and questions as
to the necessity, character and sufficiency of health care which is provided
shall be determined by the commission.
(2) A health care
provider and regional health authority 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 health care and health care provider 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.
(4) An action does not lie for an amount in excess
of the amount fixed by the commission under subsection (3).
(5) A health care
provider 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 a worker, an employer or a person other than the commission for
those services, medicines or materials.
Contributions for
health care
97. (1) An employer shall not directly or indirectly collect,
receive or retain from a worker contributions towards the expense of health
care.
(2) Where, in conjunction
with or apart from the health care to which workers are entitled free of
charge, further health care 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.
First medical
treatment
98. (1) Where a worker has been so seriously injured that the
worker cannot continue at the worker's regular work, the employer shall, at the
employer's own expense, as soon as reasonably possible after the injury,
(a) obtain necessary health
care or convey the worker to a place where the worker may receive health care;
(b) provide immediate
transportation to a hospital should that be necessary or to a place where
proper health care can be given; and
(c) provide or arrange
for the provision of health care that may be necessary to the worker upon the
journey.
(2) Where an employer
fails to comply with subsection (1), a person may obtain the necessary health
care or convey the worker to a hospital or place referred to in that subsection
and the employer shall pay the reasonable expenses for obtaining the health care
or for the conveyance.
(3) Where the employer
fails to pay the expenses referred to in subsection (2), the commission may pay
the expenses 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.
PART VII
RETURN TO WORK AND REHABILITATION
Rehabilitation
99. The commission may take those measures and make those
expenditures that it considers necessary or expedient to
(a) help in getting
workers back to work;
(b) help in lessening or
removing an impediment resulting from a worker's injury;
(c) help in the rehabilitative
measures of personal care and home care; and
(d) provide counselling,
academic and vocational services to a dependent spouse or cohabiting partner
who survives a worker, where the worker's death resulted from an injury which
occurred before July 1, 1996.
Duty to
co-operate in return to work
100. (1) An employer shall co-operate in the early and safe return
to work of a worker injured during employment by
(a) contacting the
worker as soon as possible after the injury occurs and maintaining communication
throughout the period of the worker's recovery;
(b) providing suitable
employment that is available and consistent with the worker's functional
abilities and that, where possible, restores the worker's pre-injury earnings;
(c) giving the commission
the information the commission may request concerning the worker's return to
work; and
(d) doing other things that
may be prescribed in the regulations.
(2) A worker shall
co-operate in the early and safe return to work by
(a) contacting the
employer as soon as possible after the injury occurs and maintaining
communication throughout the period of the worker's recovery;
(b) assisting the
employer, as may be required or requested, to identify suitable employment that
is available and consistent with the worker's functional abilities and that,
where possible, restores the worker's pre-injury earnings;
(c) accepting suitable
employment identified under paragraph (b);
(d) giving the
commission the information the commission may request concerning the worker's
return to work; and
(e) doing other things
that may be prescribed in the regulations.
(3) The commission may
contact the employer and the worker to monitor their progress on returning the
worker to work to determine whether they are fulfilling their obligations to
co-operate and to determine whether any assistance is required to facilitate
the worker's return to work.
(4) The employer or the
worker shall notify the commission of any difficulty or dispute concerning
their co-operation with each other in the worker's early and safe return to
work.
(5) Where the commission received notice under
subsection (4), the commission shall attempt to resolve
the dispute through mediation and, if mediation is not successful, shall decide
the matter within 60 days after receiving the notice or within the longer
period that the commission may determine.
(6) Where mediation is
provided under this section, the mediator shall not participate in a hearing or
proceeding in relation to the subject of the mediation without the consent of
the parties to the hearing or proceeding.
(7) Where the commission
determines that a worker has failed to comply with this section, the commission
may suspend, reduce or terminate the worker's compensation.
(8) Where the commission
determines that an employer has failed to comply with this section, the
commission may levy a penalty on the employer not exceeding the cost to the
commission of providing benefits, return to work and rehabilitation services to
the worker while the non-compliance continues.
(9) A penalty payable
under subsection (8) is an amount owing to the commission and may be added to
the employer's assessment and payment enforced under section 140.
Obligation to
re-employ
101. (1) An employer of a worker who has been
unable to work as a result of an injury and who, on the date of the injury, had
been employed continuously for at least one year by the employer shall offer to
re-employ the worker in accordance with this section.
(2) This section applies
only to an employer and a worker who had been in an employment relationship for
a continuous period of one year immediately prior to the date of the worker's
injury.
(3) This section does
not apply to an employer who regularly employs fewer than 20 workers.
(4) The commission may
determine the following matters on its own initiative or shall determine them
if a worker and an employer disagree about the fitness of the worker to return
to work:
(a) where the worker has
not returned to work with the employer, whether the worker is medically able to
perform the essential duties of the worker's pre-injury employment or to
perform suitable work; and
(b) where the commission
has previously determined that the worker is medically able to perform suitable
work, whether the worker is medically able to perform the essential duties of
the worker's pre-injury employment.
(5) When a worker is
medically able to perform the essential duties of the worker's pre-injury
employment, an employer to whom this section applies shall offer to
(a) re-employ the worker
in the position that the worker held on the date of injury; or
(b) provide the worker
with alternative employment of a nature and at earnings comparable to the
worker's employment on the date of injury.
(6) When a worker is
medically able to perform suitable work but is unable to perform the essential
duties of the worker's pre-injury employment, an employer to whom this section
applies shall offer the worker the first opportunity to accept suitable
employment that may become available with the employer.
(7) An employer to whom
this section applies shall modify the workplace and the work to accommodate the
worker to the extent that the accommodation does not cause the employer undue
hardship.
(8) An employer is
obligated under this section until the earliest of,
(a) 2 years after the
date of disability;
(b) one year after the
worker is medically able to perform the essential duties of the worker's pre-injury
employment; and
(c) the date on which
the worker reaches 65 years of age.
(9) Where an employer
re-employs a worker in accordance with this section and then terminates the
employment within 6 months, the employer is presumed not to have fulfilled the
employer's obligations under this section.
(10) An employer may
rebut the presumption in subsection (9) by showing that the termination of the
worker's employment was not related to the injury.
(11) Upon the request of
a worker or on its own initiative, the commission shall determine whether an
employer has fulfilled the employer's obligations to the worker under this
section.
(12) The commission is
not required to consider a request under subsection (11) by a worker who has
been re-employed and whose employment is terminated within 6 months where the
request is made more than 3 months after the date of termination of employment.
(13) Where the commission
decides that an employer has not fulfilled the employer's obligations to a
worker, the commission may
(a) levy a penalty on
the employer not exceeding the amount of the worker's net average earnings for
the 12 months immediately preceding the beginning of the loss of earnings as a
result of the injury; and
(b) make payments to the
worker for a maximum of one year as if the worker were entitled to payments
under section 83.
(14) A penalty payable
under subsection (13) is an amount owing to the commission and may be added to
the employer's assessment and payment enforced under section 140.
(15) Where this section
conflicts with a collective agreement that is binding upon an employer, and the
employer's obligations under this section give a worker greater re-employment
terms than does the collective agreement, this section prevails over the
collective agreement.
(16) Subsection (15)
shall not operate to displace the seniority provisions of a collective
agreement.
(17) This section shall
only apply in respect of an injury to a worker which occurred on or after January
1, 2002.
Labour market
re-entry assessment and plan
102. (1) The commission shall provide a worker with a labour market
re-entry assessment where
(a) it is unlikely that
the worker will be re-employed by the worker's employer because of the nature
of the injury;
(b) the worker's
employer has been unable to arrange work for the worker that is consistent with
the worker's functional abilities and that restores the worker's pre-injury
earnings; or
(c) the worker's
employer is not co-operating in the early and safe return to work of the
worker.
(2) After reviewing the results of a labour market
re-entry assessment the commission shall
(a) determine whether a
worker requires a labour market re-entry plan in order to enable the worker to
re-enter the labour market and reduce or eliminate the loss of earnings that
may result from the injury; and
(b) determine the employment
that is suitable for the worker.
(3) Where the commission
determines that a worker requires a labour market re-entry plan, the commission
shall arrange for a labour market re-entry plan to be prepared for the worker.
(4) A labour market
re-entry plan shall be prepared in consultation with
(a) the worker and,
unless the commission considers it inappropriate to do so, the worker's
employer; and
(b) the worker's health
care providers if the commission considers it necessary to do so.
(5) A labour market
re-entry plan shall contain the steps necessary to enable a worker to re-enter
the labour market in the employment that is suitable for the worker.
(6) A worker shall
co-operate in all aspects of a labour market re-entry assessment or plan
provided to the worker.
(7) The commission shall
pay the expenses related to a labour market re-entry assessment and plan that
the commission considers appropriate to enable the worker to re-enter the
labour market.
(8) Where a worker was
injured prior to January 1, 2002 and has received services under section 89 of
the former Act as it read prior to January 1, 2002, the worker shall not be
entitled to a labour market re-entry assessment or plan except where the
commission considers it appropriate.
Provision of information
103. (1) Where a worker or a worker's employer requests, a health
care provider shall give the commission, the worker and the employer
information concerning the worker's functional abilities on the form that may
be required by the commission.
(2) The commission shall
pay a health care provider for providing information under this section and
shall fix the fee to be paid.
(3) A person, other than
the worker, who receives the information referred to in subsection (1) shall
not disclose that information except to a person who is assisting the employer
in returning the worker to work.
PART VIII
OCCUPATIONAL DISEASES
Occupational
disease
104. (1) Where
(a) a worker suffers
from an occupational disease and is as a result disabled or the worker's death
is caused by an occupational disease; and
(b) the occupational disease
is due to the nature of the employment in which the worker was engaged, whether
under one or more employments,
the worker or
dependents are entitled to compensation as if the occupational disease were an
injury, and the date of disablement were the date of injury, subject to the modifications
referred to in this section, unless at the time of entering into the employment
the worker had falsely represented as not having previously suffered from the occupational
disease.
(2) The commission may, with the approval of the Lieutenant-Governor in Council, make
regulations prescribing occupational diseases and associating descriptions of
processes with the occupational diseases.
(3) Where a worker
referred to in subsection (1) at or immediately before the date of the
disablement was employed in a process prescribed in the regulations and the occupational
disease contracted is the occupational disease prescribed in the regulations
that is associated with the description of the process, the occupational disease
shall be considered to have been due to the nature of that employment unless
the contrary is proved.
(4) Where a worker referred
to in subsection (1), who was employed in a process involving asbestos, is suffering
from the occupational disease known as asbestosis, the occupational disease
shall be conclusively considered to have been due to the nature of that
employment.
(5) Nothing in this
section affects the right of a worker to compensation in respect of an
occupational disease to which this section does not apply where the occupational
disease is the result of an injury in respect of which the worker is entitled
to compensation under this Act.
Occupational
disease compensation
105. (1) A worker or dependent is entitled to compensation under section
104 or 106 notwithstanding that the worker is not employed at the date of
disablement.
(2) The amount of
compensation payable under section 104 or 106 to a worker or dependents referred
to in subsection (1) shall be calculated, in accordance with section 83, on the
basis of the worker's average weekly net earnings in the worker's last trade,
occupation or profession prior to the date of disablement, adjusted to the date
of disablement by the application of the Consumer Price Index for Canada as
published by Statistics Canada.
(3) A worker or dependent is only entitled to compensation from January 1,
1994 notwithstanding that the worker's date of disablement is before January 1,
1994.
St. Lawrence
106. (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 earnings at the work at which the
worker was employed, or the worker's 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 the worker's death shall be considered to be due to the nature of the
employment in those mines unless it is traceable to other employment.
(2) A worker referred to
in subsection (1) or where the worker is deceased, the dependents of the
deceased worker are entitled to compensation from
(a) the date referred to
in subsection (5); or
(b) the date of
disability or death,
whichever is
later, as if the disease were an injury arising out of and in the course of the
worker's employment in those mines and the disablement or death were the
happening of the injury.
(3) 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.
(4) 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 referred to in subsection (5); or
(b) the personal
representative, surviving spouse, cohabiting partner or next of kin of a
deceased dependent of a worker, where that surviving spouse, cohabiting partner
or next of kin is not a dependent of that worker to claim compensation for a
period before or after the date referred to in subsection (5).
(5) This section 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).
Medical
committees
107. (1)
In this section "committee" means a
committee of medical practitioners constituted and appointed under this
section.
(2) The commission
(a) shall constitute a committee of medical practitioners upon
the written request of a worker or the personal representative of a deceased
worker where
(i) the request is made not later than 90 days after the making
of a medical decision by the commission, or
(ii) a longer period that the commission determines where the
commission is of the opinion that exceptional circumstances exist; or
(b) may constitute a committee of medical practitioners where
the commission feels it is desirable to constitute a committee.
(3) The purpose of a committee is to
(a) investigate and determine in relation to a claim made by a
worker or the dependents of a deceased worker, the nature of an occupational disease
and its relationship to the processes directly associated in the regulations
with the occupational disease; or
(b) investigate and determine in respect of a number of cases
based on death or disability alleged to be caused by that occupational disease.
(4) A committee shall
consist of 3 medical practitioners recognized as specialists in the type of
injury or illness for which the committee is constituted and shall be appointed
from a list of specialists prepared by the commission in the manner prescribed
in subsection (5).
(5) 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 dependents to
appoint from the list referred to in subsection (4) one specialist within 14
days after the mailing of the notice by the commission and where the worker or
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 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 second member of the committee from the list and the 2 members
appointed by the worker or dependents and the commission shall appoint from the
list the third member who shall be chairperson; and
(c) where the members
appointed by the commission and the worker or dependents are unable to agree on
a third member within 2 weeks after they are appointed, the minister shall
appoint from the list the third member who shall be chairperson.
(6) In the case of a
committee constituted under paragraph (2)(b), the commission shall appoint the
members of the committee and shall designate one of them as chairperson.
(7) A committee has the
powers conferred on a commissioner under sections 8, 9 and 10 of the Public
Inquiries Act, 2006.
(8) 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.
(9) A committee shall
report to the commission its findings on the nature of the occupational disease
and its relationship to the processes associated with it in the regulations.
(10) Where a claim is made by a worker and the
worker is examined, the committee shall certify to the commission
(a) the worker's condition;
(b) the worker's fitness
for employment;
(c) the worker's
unfitness, where the worker is unfit for employment;
(d) the extent of the
worker's temporary or permanent disability because of the occupational disease
in respect of which the worker has claimed compensation; and
(e) other matters which
may, in the opinion of the commission or the committee, be pertinent to the
claim.
(11) Where the claim is
made by the dependents of a deceased worker the committee shall certify to the
commission
(a) the cause of the
worker's death;
(b) the opinion of the
committee as to the reasonableness of the inference that the worker died from
the occupational disease;
(c) whether the occupational
disease is related to any of the processes associated with it in the
regulations; and
(d) other matters which
may, in the opinion of the commission or the committee, be pertinent to the
claim.
PART IX
PRESUMPTION RESPECTING FIREFIGHTERS AND VOLUNTEER FIREFIGHTERS
Definitions
108. In this Part
(a) "fire and emergency services
employee" means a person employed with the department responsible for fire
and emergency services and whose duties include
(i) investigating the
cause, origin or circumstances of fires,
(ii) firefighting, or
(iii) delivering fire
investigation or firefighting training;
(b) "fire department" means a fire
department organized under the Municipalities
Act, 1999, the City of St. John's Act,
the City of Corner Brook Act, the City of Mount Pearl Act and the Regional Service Boards Act, 2012 and
also includes a fire department established by an Inuit Community Government
under the Labrador Inuit Land Claims
Agreement Act;
(c) "firefighter" means
(i) a member of a fire
department,
(ii) a member of an
industrial fire department, or
(iii) a fire and emergency
services employee;
(d) "industrial fire department" means an organization established by an employer to protect the
employer's premises where the nature of the employer's business creates
specific hazards for which specialized firefighting training or equipment is
required;
(e) "listed disease" means
(i) a primary site brain
cancer,
(ii) a primary site
bladder cancer,
(iii) a primary site
colorectal cancer,
(iv) a primary site
esophageal cancer,
(v) a primary leukemia,
(vi) a primary site lung
cancer,
(vii) a primary site
kidney cancer,
(viii) a primary
non-Hodgkin lymphoma,
(ix) a primary site
testicular cancer,
(x) a primary site
ureter cancer,
(xi) a primary site
breast cancer,
(xii) a primary site
penile cancer,
(xiii) a primary site
pancreatic cancer,
(xiv) a primary site
thyroid cancer,
(xv) multiple myeloma,
(xvi) a primary site
prostate cancer,
(xvii) a primary site
cervical cancer,
(xviii) a primary site
ovarian cancer,
(xix) a primary site skin cancer,
or
(xx) an injury to the
heart that manifests within 24 hours after attendance at an emergency response;
and
(f) "volunteer firefighter" means a volunteer member of a fire department or brigade admitted
by the commission under the regulations and considered to be a worker.
Presumption
109. (1) Where a worker who is or has been a firefighter or a volunteer
firefighter is diagnosed with a listed disease and is as a result disabled or the
worker's death caused by a listed disease,
(a) the listed disease
is presumed to be due to the nature of the worker's employment as a firefighter
or volunteer firefighter unless there is evidence to the contrary; and
(b) the worker or
dependents are entitled to compensation as if the listed disease were an injury
and the date of disablement were the date of injury.
(2) The presumption in
subsection (1) applies to a worker
(a) who has been a
firefighter or a volunteer firefighter for at least the cumulative period of
service prescribed in the regulations; and
(b) who has been
regularly exposed to the hazards of a fire scene, other than a forest fire
scene, throughout that period.
(3) In addition to the
requirements in subsection (2), the presumption for primary site lung cancer
applies only to a firefighter or volunteer firefighter who has not smoked a
tobacco product in the 10 years immediately before the date of the diagnosis.
(4) Notwithstanding
subsection (1), the presumption for primary site colorectal cancer does not
apply to a firefighter or volunteer firefighter who is diagnosed with primary
site colorectal cancer after the age of 61.
(5) An employer shall provide the information
prescribed in the regulations to the commission in relation to a firefighter or
volunteer firefighter who is diagnosed with a listed disease.
Health care
110. (1) There is no entitlement to health care under this Part in
respect of a firefighter or volunteer firefighter diagnosed with a listed
disease where the health care is a service insured under the Medical Care
and Hospital Insurance Act, the Hospital Insurance Regulations and
the Medical Care Insurance Insured Services Regulations.
(2) Nothing in
subsection (1) affects the commission's authority under this Act to request
information, records and reports and to provide payment for them as authorized
by this Act.
Application
111. The presumption in section 109 applies to
(a) a firefighter who is
diagnosed with a listed disease referred to in subparagraphs 108(e)(i) to (xi) on
or after December 14, 2015;
(b) a volunteer
firefighter who is diagnosed with a listed disease referred to in subparagraphs
108(e)(i) to (xi) on or after January 1, 2017;
(c) a firefighter or volunteer firefighter who is
diagnosed with a listed disease referred to in subparagraphs 108(e)(xii) to
(xix) on or after December 18, 2019; and
(d) a firefighter or volunteer firefighter who is
diagnosed with a listed disease referred to in subparagraph 108(e)(xx) on or after
November 30, 2022.
PART X
PRESUMPTION RESPECTING POST-TRAUMATIC STRESS DISORDER
Post-traumatic
stress disorder presumption
112. (1) In
this Part,
(a) "post-traumatic stress disorder"
means post-traumatic stress disorder as described in
the most recent edition of the Diagnostic and Statistical Manual of Mental
Disorders published by the American Psychiatric Association;
(b) "psychiatrist" means a medical
practitioner who
(i) has completed a
residency in psychiatry,
(ii) has been certified
by the Royal College of Physicians and Surgeons of Canada,
(iii) is registered with
the licensing board in the jurisdiction in which the medical practitioner
practices, and
(iv) whose registration
is not suspended, cancelled or withdrawn; and
(c) "registered psychologist" means a
person who
(i) holds a master's or
doctorate degree in psychology,
(ii) is registered with
the licensing board in the jurisdiction in which the person practices, and
(iii) whose registration
is not suspended, cancelled or withdrawn.
(2) Where a worker
(a) is exposed to a
traumatic event or events in the course of the worker's employment; and
(b) is diagnosed with
post-traumatic stress disorder by a psychiatrist or a registered psychologist,
the post-traumatic
stress disorder shall be presumed, unless the contrary is shown, to be an
injury that arose out of and in the course of the worker's employment.
(3) Notwithstanding
subsection (2), post-traumatic stress disorder that may be the result of an
employer's decision or action relating to the employment of a worker including
a decision to change the work to be performed or the working conditions, to
discipline the worker or to terminate the worker's employment does not constitute
an injury.
Application
113. The presumption in section 112 applies to injuries
occurring on or after July 1, 2019.
PART XI
INJURY FUND AND ASSESSMENTS
Injury fund
114. (1) The injury fund is continued.
(2) Compensation, health
care, administrative expenses and all other expenses under this Act and the
regulations shall be paid out of the injury fund.
Classes of
industry
115. (1) For the purpose of maintaining the injury fund the
commission may
(a) divide all
industries into classes;
(b) rearrange the
classes of industries 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 activities assignable to different classes, the commission may assign
the industry to the class of its principal activity or may divide the industry
into 2 or more parts, assigning each to its proper class.
Subclasses
116. (1) The commission may establish different subclassifications
and different rates among different kinds of industry in the same class or
subclass that it considers appropriate.
(2) The assessment upon employers in a class or
subclass are not required to be uniform and may be based on the hazard of each
or of any of the industries included in the class or subclass.
Assessment or
rate modification
117. (1) Where the commission considers it appropriate, it may
establish a program of assessment or rate modification to consider
(a) an employer's
record, risk, cost or injury experience;
(b) an employer's
compliance with
(i) this Act and the
regulations, and
(ii) policies and
programs established under section 7; and
(c) an employer's
compliance with requirements that may be set by the commission in relation to
(i) provisions respecting
health and safety committees, worker health and safety representatives and
training for those committees and representatives in the Occupational Health
and Safety Act or a regulation made under that Act,
(ii) provisions
respecting health and safety programs and policies in the Occupational
Health and Safety Act or a regulation made under that Act, and
(iii) the provisions of Part
II of the Canada Labour Code and the regulations made under that Part,
where the employer is bound by Part II of the Canada Labour Code.
(2) A program
established under subsection (1) may apply to all industries or may be
restricted in application, or may apply in a different manner to an industry
specified by the commission.
(3) Notwithstanding
subsection (2), where the commission is of the opinion that it would be
appropriate to apply a program established under subsection (1) to an industry
in a different manner, the commission shall seek the approval of the
Lieutenant-Governor in Council to consult with the industry concerning the
application by the commission of the program to the industry in a different
manner.
(4) Where the
Lieutenant-Governor in Council approves a consultation under subsection (3),
and where, following the consultation, the commission proposes to apply a
program established under subsection (1) to the industry with which it has
consulted in a different manner, the application shall be subject to the
approval of the Lieutenant-Governor in Council, but the Lieutenant-Governor in
Council's approval shall only be given where the application to the industry
would result in the setting or adopting of requirements by the commission
equivalent to or greater than those contained in a program established under
subsection (1).
(5) A program
established under subsection (1) may
(a) provide for an
increase or decrease to an employer's assessment or rate;
(b) grant a refund or
credit to an employer; or
(c) levy a surcharge on
an employer.
Assessment rated
on payroll
118. (1)
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.
(2) The minimum amount of an assessment may be
prescribed by regulation.
Manner of
assessment
119. (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 of an industry.
(2) The commission shall,
in a manner that the commission considers appropriate, give notice to each
employer of
(a) the rate of the
assessment applicable to the employer's industry; and
(b) 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 reduce an instalment or
defer its collection.
Employer to pay
assessments
120. (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.
When assessments
due
121. (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.
Account status
requests
122. (1) Where a person requests information respecting the account
status of an employer, the commission may disclose the account status by
electronic means.
(2) The commission may
charge a fee for the provision of account status requested under subsection (1)
and may establish different fees or waive fees for different categories of
persons requesting information under that subsection.
(3) A request under
subsection (1) shall be accompanied by the information required by the
commission to identify the transaction concerning which the request is being
made.
(4) Where a request is
made by legal counsel, the commission shall provide the requested account
status to the legal counsel not more than 21 days after the commission receives
the request.
(5) Where the commission
does not provide the account status to the legal counsel who requested it within
21 days of receiving the request and a transaction for which that request was
made is completed after that 21 day period but before the commission provides
the account status,
(a) the assets included
in that transaction shall be considered to be free and clear of a lien imposed
under this Act; and
(b) a security interest
included in that transaction shall have priority over a lien imposed under this
Act.
(6) An account status provided
by the commission to a legal counsel under this section shall only be valid for
45 days after that account status has been provided to the legal counsel who
made the request.
Information may
be required
123. (1) An employer shall on becoming an employer, or where
required by the commission, provide to the commission
(a) a statement showing
an estimate of the amount of the payroll; and
(b) other information
that may be prescribed in the regulations 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 payroll, including a calculation of the difference between the prior
year's estimated payroll and the actual payroll;
(b) provide the
commission with an estimate of payroll for the coming year;
(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; and
(d) provide the
commission with the financial statements or other information that the
commission considers necessary to determine the employer's assessment.
(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 records of earnings paid to employees and those records
shall be produced, on request, to the commission.
(4) Where the business
of the employer includes more than one class of industry, the commission may
require separate statements to be made in relation to each class 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 records referred to in
subsections (1), (2) and (3) within the time period prescribed in the
regulations, the commission may base an assessment or supplementary assessment
made upon the employer on an amount 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 determined
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 the employer was assessed and the amount for which
the employer would have been assessed on the basis of payroll.
(7) A person shall,
where required, report whether the person has employed workers during a period
that the commission designates, and where the person has employed workers the
person shall report the nature of the industry in which they were employed and
provide other information that the commission may require.
Calculation of
payroll
124. In calculating and adjusting the amount of payroll of an
employer, the commission shall base the employer's assessment on only that
portion of the payroll that is paid to the worker that is equal to or less than
the maximum compensable assessable earnings.
No deduction from
earnings
125. An employer shall not, either directly or indirectly,
(a) deduct from a worker's
earnings 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
(b) require or permit
the workers to contribute in a manner towards indemnifying the employer against
liability which the employer may incur under this Act.
Commission may
estimate
126. (1)
Where an employee of a corporation is a shareholder
in the corporation and is remunerated in whole or in part for the employee's services
with a share of profits and the employer does not report to the commission what
the commission considers to be a reasonable amount 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 subcontracts 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.
Credit balance
due employer
127. Money owing to an employer by the commission as a result of
an overestimation of the employer's payroll or as a result of the prior year's
estimated payroll exceeding the actual payroll shall, at the discretion of the
commission, be refunded to the employer or credited on behalf of the employer
in respect of the subsequent assessment.
Charges to other
classes
128. (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 program of assessment or rate modification under section 117 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 a worker of another employer, 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, one 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.
Cost of medical
investigations
129. The cost of investigations conducted by a medical committee
under section 107 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.
Where assessment
insufficient
130. Where in a class the estimated assessments prove
insufficient, the commission may
(a) make further
assessments that may be necessary; or
(b) temporarily advance
the amount of a deficiency out of a reserve and add that amount to a later
assessment.
Arrangement with
other provinces
131. The commission may make or carry out arrangements with the
Workers' Compensation Board of another province or territory to avoid
duplication of assessment on the earnings of workers protected at the same time
under the laws of 2 or more provinces or territories 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.
Arrangement with
self-insurers
132. (1)
The commission may enter into agreements with those
self-insurers that the commission determines.
(2) An agreement under subsection (1) may
(a) provide that the
provisions of this Act respecting assessments do not apply to the
self-insurers; and
(b) include the terms
and conditions that may be agreed to with respect to payments by the commission
in relation to workers of self-insurers.
Where industry
temporary
133. (1)
Where an employer engages in an industry and the
commission is of the opinion that the industry is to be carried on only
temporarily, the commission may require the employer to pay or give security to
the commission for the payment of an amount which in the opinion of the
commission may be sufficient to pay assessments that the commission may make
with respect to that industry.
(2) Payment of an amount
referred to in subsection (1) may be enforced in accordance with section 140.
Former employers
134. Where a person has ceased to be an employer, the person
(a) has no rights in the
injury fund; and
(b) 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.
Change of
ownership
135. (1) Where the business
or undertaking, or a part of the business or undertaking, of an employer in
relation to which an assessment is unpaid
(a) is sold, leased, transferred or disposed of;
(b) has changed ownership or reincorporated, or restructured
in another way; or
(c) has been dealt with in another manner which, in the
opinion of the commission, is intended to avoid obligations under this Act,
the commission may determine that a person is
the successor of the employer and levy and collect from the person the amount
of an assessment unpaid by the employer at the time of an event referred to in
paragraph (a), (b) or (c).
(2) An amount required
to be paid under subsection (1) may be collected by the commission in the same
manner as an assessment may be collected under this Act and section 146 applies
in respect to that amount.
Effect of refusal
136. (1)
An employer who refuses or neglects to
(a) make or transmit a
payroll return or other statement required under section 123;
(b) pay an assessment,
special or supplementary assessment, or the provisional amount of an
assessment, or an instalment or part of the assessment; or
(c) report to the
commission an estimate of payroll,
shall in
addition to a penalty or other liability to which the employer may be subject,
pay to the commission the amounts and costs referred to in subsection (2).
(2) For the purposes of
subsection (1), an employer may be subject to pay to the commission
(a) the full amount and
capitalized value, as determined by the commission of the compensation payable
in respect of injuries to workers employed by the employer which happened during
the period of the employer's default;
(b) health care costs payable
in respect of those injuries; and
(c) costs relating to
the rehabilitation of workers injured while employed by the employer during the
period of the employer's default.
(3) The payment of an
amount under subsection (2) may be enforced in the same manner as the payment
of an assessment may be enforced, but the amount payable under subsection (2)
shall not exceed an amount which the commission considers reasonable under the
circumstances.
(4) 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.
Accounts within
fund
137. The
commission shall maintain separate accounts 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, health care and other expenses, the injury fund is
nevertheless considered one and indivisible.
Reserves within
fund
138. (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 in a special fund to be used for
one or more of the following purposes:
(a) 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) to meet the part of
the cost of claims of workers suffering enhanced disabilities, because of
similar or other disabilities previously suffered, that in the opinion of the
commission is the result of the previous disabilities, and to meet the cost of
subsequent injuries resulting while a worker is participating in a
rehabilitation program;
(c) 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; and
(d) subject to the
approval of the Lieutenant-Governor in Council, 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 115, the commission may make the
adjustment and disposition of the funds, reserves and accounts of the classes
affected that it considers appropriate.
Payments in
arrears
139. An employer who does not pay an assessment or a special
assessment when it is due shall pay as a penalty for default the percentage prescribed
in the regulations upon the amount unpaid, and the percentage may be added to
the amount of the assessment and payment enforced under section 140.
Where default
140. (1) Where default is made in the payment of an assessment or
special assessment or a part of it, the commission may issue a 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 with the Supreme Court or with the Provincial Court and
when filed shall become an order of the Supreme Court or the Provincial Court
and may be enforced as a judgment of the Supreme Court 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 by the sheriff or
the sheriff's deputy unsatisfied, in whole or in part and the employer
continues to carry on an industry in which workers are employed, a judge of the
Supreme Court, 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.
Director's
liability
141. (1) Where a corporation defaults in the payment of an
assessment, or an amount levied under section 135, or a part of it, the
directors, at the time the corporation defaults, are jointly and individually
liable, together with the corporation to pay the amount.
(2) A director is liable
under subsection (1) where,
(a) a certificate for
the amount of the corporation's liability referred to in that subsection has
been filed under section 140 and execution for that amount has been returned
unsatisfied in whole or in part;
(b) the corporation has
begun liquidation or dissolution proceedings or has been dissolved and the
amount of the corporation's liability referred to in subsection (1) has not
been paid within 6 months after a notice of intent to dissolve is filed under
section 337 of the Corporations Act after the commencement of
liquidation or dissolution proceedings; or
(c) the corporation has
made an assignment or a receiving order has been made against it under the Bankruptcy
and Insolvency Act (Canada) and a claim for the amount of the corporation's
liability referred to in subsection (1) has not been paid within 6 months after
the date of the assignment or receiving order.
(3) A director is not
liable for an amount payable under subsection (1) unless the claim against the
director is made not later than 4 years after the director ceased to be a
director of the corporation.
(4) The liability of a
director under subsection (1) is for the total amount owing by the corporation
and is not reduced by a proposal respecting or restructuring of or discharge of
the liability of the corporation under the Bankruptcy and Insolvency Act (Canada)
or other legislation.
(5) Where a director
pays an amount in respect of a corporation's liability referred to in
subsection (1) in liquidation, dissolution or bankruptcy proceedings, the
director is entitled to the same priority as the commission would have been
entitled to had the amount not been paid, subject to the commission's liability
being satisfied, and, where a certificate that relates to the amount has been
registered, the director is entitled to an assignment of the certificate to the
extent of the director's payment, and the commission is empowered to make that
assignment.
(6) A director who
satisfies a claim under this section is entitled to contribution from the other
directors who were liable for the claim.
(7) Subsection 140(1)
applies, with the necessary changes, where a director fails to pay an amount
for which the director is liable under this section.
Amount in default
142. An amount certified as being in default by a person under
section 140 is until paid a first lien upon the entire assets of the person and
has priority over all other claims except a claim for unpaid wages under the Labour
Standards Act and a mechanics lien registered under the Mechanics' Lien
Act.
Commission may
withhold money
143. Where the commission owes money to an
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 the assessment, and the money withheld by the commission shall be
considered as full or partial payment by the employer for the assessment
payment.
Assessment where
work contracted
144. (1) Where work is undertaken for a 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 one and partly from the other, but in the
absence of a term in the contract to the contrary the contractor is 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 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.
(4) Notwithstanding
subsections (1) and (2), in the absence of a term in the contract or
subcontract to the contrary,
(a) 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 the
contractor's workers or with respect to the subcontractor or the
subcontractor's workers; and
(b) 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 the
subcontractor's workers.
(5) 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.
(6) As between a
contractor and subcontractor the contractor is for the purpose of this section
considered a principal and the subcontractor a contractor.
(7) A principal shall provide to the commission
the information prescribed in the regulations in the form, manner and time
period prescribed in the regulations.
(8) In this section, "principal" means
the person for whom work is undertaken.
Mechanics' Lien
Act
145. 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 of the property where the work or service is
being performed shall ensure that an amount which the employer is liable to
contribute to the injury fund is paid, and where the owner fails to do so the
owner 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.
Assessment as
lien
146. (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) Subject to municipal taxes and a lien with
respect to wages under the Mechanics' Lien Act, the amount of an
assessment or a judgment entered in relation to an assessment is a first lien
upon
(a) all property, real
and personal, of the person to whom the assessment is charged, whether or not
that property is used in or in connection with or produced by or in the
industry in respect to which the employer is assessed; and
(b) all property used in
or in connection with or produced in or by the industry for which the employer
has been assessed that is owned by another person.
(3) In subsection (2)
the words "amount of an assessment" include a percentage payable under
section 139.
PART XII
GENERAL
Offence
147. (1) A
person who
(a) knowingly
makes a false statement that affects or may affect the initial or continuing
entitlement of a person to compensation or the liability of an employer to pay
an assessment;
(b) wilfully fails to
inform the commission of a change in circumstances that affects or may affect
the entitlement of that person to compensation or the liability of that person
to pay an assessment, within 10 days of the change; or
(c) otherwise
contravenes this Act or the regulations,
is guilty of an
offence and liable on summary conviction to a fine not exceeding $25,000 or to
imprisonment for a term of not more than 6 months, or to both.
(2) Where a person is
convicted of an offence under this section, the court may, in addition to the
fine and a penalty imposed under this Act and the regulations, order the person
to repay to the commission money obtained or retained by that person as a
result of the commission of the offence.
(3) An order made under
subsection (2) may be registered as a notice of judgment under the Judgment
Enforcement Act.
(4) Nothing in this
section affects the right of the commission to obtain a civil remedy in respect
of the offence, including proceedings under section 94.
(5) 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.
Statutory Review
148. (1) In this section "committee" means a committee
appointed under this section.
(2) The Lieutenant-Governor
in Council shall in accordance with subsection (3) appoint committees 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 members of the committees shall be
appointed as follows:
(a) the first committee shall be appointed on or
before June 10, 2026;
(b) the second committee shall be appointed no
later than 5 years after the date of the submission of the report of the first
committee; and
(c) each subsequent committee shall be appointed
no later than 5 years after the date of the submission of the report of the
previous committee.
(4) The
Lieutenant-Governor in Council shall, when appointing a committee,
(a) designate one 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) set the period
within which or the time before which the committee shall report or make its
recommendations to the Lieutenant-Governor in Council.
(5) Each member of the
committee shall be paid expenses which the member actually incurs in the
performance of the member's 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 the member's
services the remuneration that the Lieutenant-Governor in Council fixes.
(6) 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.
(7) The commission
shall, out of the injury fund, pay the expenses and remuneration of members of
the committee provided for in subsection (5) and bear the cost of the
technical, clerical and other help provided for in subsection (6).
(8) 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 sections 8 and 9 of
the Public Inquiries Act, 2006.
Lieutenant-Governor
in Council regulations
149. (1) The
Lieutenant-Governor in Council, may make regulations
(a) excluding industries, employers and workers
from the application of this Act;
(b) respecting the application of this Act, in
whole or in part, to the persons referred to in paragraphs 47(1)(a) to (i);
(c) extending a limitation period for the purposes
of subsection 61(2);
(d) prescribing the minimum and maximum lump sum
payments payable under paragraph 82(1)(b);
(e) respecting the implementation of the
recommendations in the Report of the Royal Commission Respecting Radiation,
Compensation and Safety at the Fluorspar Mines, St. Lawrence, Newfoundland,
1969;
(f) prescribing the minimum cumulative period of
service for firefighters and volunteer firefighters for the purposes of
paragraph 109(2)(a);
(g) prescribing the information that an employer
is required to provide to the commission in relation to a firefighter or
volunteer firefighter who is diagnosed with a listed disease;
(h) prescribing the penalty for default for the
purposes of section 139;
(i) prescribing penalties for the violation of
this Act or of rules, regulations or orders made under the authority of this
Act;
(j) defining a word or expression used but not defined
in this Act; and
(k) generally to give effect to the purpose of
this Act.
(2) Regulations made under this section may be
made with retroactive effect.
Commission
regulations
150. (1)
The commission, with the approval of the Lieutenant-Governor in Council may
make regulations
(a) prescribing the minimum amount of an
expenditure of the commission under section 11 for which Lieutenant-Governor in
Council approval is required;
(b) excluding workers and employers from the
application of this Act;
(c) prescribing rules for the purpose of
subsection 47(2);
(d) 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;
(e) 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
occupational diseases sustained by fishers, and to provide transportation for initial
medical treatment;
(f) 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;
(g) providing for the priority in relation to
assessment on persons covered by section 47;
(h) prescribing educational institutions for the
purposes of subsection 49(1);
(i) prescribing the amount of compensation that
the commission may pay to a worker's surviving dependent spouse or cohabiting
partner and children where the death of the worker results from an injury;
(j) prescribing the maximum amount of expenses
that the commission may pay for the burial of a worker whose death resulted
from an injury;
(k) prescribing the method of calculating the
compensation under section 75 and the manner in which the compensation shall be
paid;
(l) prescribing the maximum compensable assessable
earnings;
(m) prescribing other things that an employer is
required to do to co-operate in the early and safe return to work of a worker
injured during employment;
(n) prescribing other things that a worker is
required to do to co-operate in the early and safe return to work;
(o) prescribing occupational diseases and associated
descriptions of processes;
(p) respecting the admission of a volunteer
members of a fire department or brigade;
(q) prescribing the minimum amount of an
assessment;
(r) prescribing information that an employer is
required to provide to the commission for the purposes of paragraph 123(1)(b);
(s) prescribing the time period in which an
employer is required to provide statements and records to the commission for
the purposes of subsection 123(5);
(t) prescribing the information a principal is required
to provide to the commission and the form, manner and time period in which the
information is to be provided;
(u) respecting
the conversion and integration of permanent disability benefits paid to a
worker in respect of an injury which occurred before January 1, 1984;
(v) defining a word or expression used but not
defined in this Act; and
(w) generally to give effect to the purpose of
this Act.
(2) Regulations made
under this section may be made with retroactive effect.
Review board
regulations
151. (1) The
review board, with the approval of the Lieutenant-Governor in Council, may make
regulations prescribing rules of procedure and evidence in relation to reviews
of decisions.
(2) Regulations made
under this section may be made with retroactive effect.
Fees and forms
152. The
commission may set fees and establish forms for the purposes and administration
of this Act and the regulations.
PART XIII
CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT
SNL2015 cA-1.2
Amdt
153. Paragraph (t) in Schedule A of the Access to Information and Protection of
Privacy Act, 2015 is repealed and the following substituted:
(t) section 19 of the Workplace Health, Safety and Compensation Act., 2022.
RSNL1990 cA-22
Amdt.
154. Subsection 26.5(2) of the Automobile Insurance Act is amended by
deleting the reference "Workplace
Health, Safety and Compensation Act" and substituting the reference
"Workplace Health, Safety and Compensation
Act, 2022".
RSNL1990 cC-2
Amdt.
155. Subparagraph 201.1(1)(m)(viii) of the Canada-Newfoundland and Labrador Atlantic
Accord Implementation Newfoundland and Labrador Act is amended by deleting
the reference "Workplace Health, Safety
and Compensation Act" and substituting the reference "Workplace Health, Safety and Compensation
Act, 2022".
RSNL1990 cE-10
Amdt.
156. Paragraph 10(1)(a) of the Employers' Liability Act is amended by
deleting the reference "Workplace
Health, Safety and Compensation Act" and substituting the reference
"Workplace Health, Safety and Compensation Act, 2022".
SNL2007 cE11.01
Amdt.
157. Paragraph 16(b) of the Energy Corporation Act is amended by deleting the reference "Workplace Health, Safety and Compensation
Act" and substituting the reference "Workplace Health, Safety and Compensation Act, 2022".
SNL2007 cH-17 Amdt.
158. Paragraph 18(b) of the Hydro Corporation Act, 2007 is amended by deleting the reference
"Workplace Health, Safety and Compensation
Act" and substituting the reference "Workplace Health, Safety and Compensation Act, 2022".
SNL2016 cI-2.1
Amdt.
159. The Schedule to the Independent Appointments Commission Act is amended by deleting the
statutory appointment reference "Workplace
Health, Safety and Compensation Act, subsection 4(1), paragraphs 4(2)(c)
and (d), section 6 and subsections 22(1) and (2)" and substituting the
statutory appointment reference "Workplace
Health, Safety and Compensation Act, 2022, subsection 6(1), paragraphs 6(2)(c)
and (d), section 8 and subsections 33(1) and (2)".
RSNL1990 cO-3
Amdt.
160. (1) Subsection 19(3) of the Occupational
Health and Safety Act is amended by deleting the reference "Part I.1
of the Workplace Health, Safety and Compensation
Act" and substituting the reference "Part II of the Workplace Health, Safety and Compensation
Act, 2022".
(2) Section
64 of the Act is amended by deleting the reference " section 20.4 of the Workplace Health, Safety and Compensation
Act" and substituting the reference "section 29 of the Workplace Health, Safety and Compensation
Act, 2022".
SNL2019 cO-6.1 Amdt.
161. Subsection 44(6) of the Oil and Gas Corporation Act is amended
by deleting the reference "Workplace
Health, Safety and Compensation Act" and substituting the reference
"Workplace Health, Safety and Compensation
Act, 2022".
RSNL1990 cP-26
Amdt.
162. Subsection 3(1) of the Proceedings Against the Crown Act is amended by deleting the
reference "Workplace Health, Safety and
Compensation Act" and substituting the reference "Workplace Health, Safety and Compensation
Act, 2022".
RSNL1990 cP-42
Amdt.
163. Subparagraph 2(1)(i)(v) of the Public Service Collective Bargaining Act is
repealed and the following substituted:
(v) the Workplace Health, Safety and Compensation
Commission referred to in the Workplace
Health, Safety and Compensation Act, 2022;
RSNL1990 cS-32
Amdt.
164. Section 10 of the Survival of Actions Act is repealed and the following substituted:
Workplace Health,
Safety and Compensation Act, 2022
10. This
Act is subject to section 52 of the Workplace
Health, Safety and Compensation Act, 2022".
NLR 144/04 Amdt.
165. Subparagraph 8(c)(i) of the Income and Employment Support Regulations
under the Income and Employment Support
Act is amended by deleting the reference "Workplace Health, Safety and Compensation Act" and
substituting the reference "Workplace
Health, Safety and Compensation Act, 2022".
CNLR 1010/96
Amdt.
166. Paragraph 3(f) of Schedule E of the Legal Aid Regulations under the Legal Aid Act is repealed and the
following substituted:
(f) compensation received under the Workplace Health, Safety and Compensation
Act, 2022;
CNLR 1148/96
Amdt.
167. Subsection 3.1(3) of the Occupational Health and Safety First Aid
Regulations under the Occupational
Health and Safety Act is amended by deleting the reference "section 3
of the Workplace Health, Safety and Compensation
Act" and substituting the reference "section 5 of the Workplace Health, Safety and Compensation
Act, 2022".
NLR 5/12 Amdt.
168. (1) Paragraph 2(1)(g) of the Occupational Health and Safety Regulations,
2012 under the Occupational Health
and Safety Act is amended by deleting the words "established under the
Workplace Health, Safety and Compensation
Act" and substituting the words "continued under the Workplace Health, Safety and Compensation
Act, 2022".
(2) Paragraph
2(1)(r) of the regulations is amended by deleting the words "section 90 of
the Workplace Health, Safety and
Compensation Act" and substituting the words "the Workplace Health, Safety and Compensation
Act".
RSNL1990 cW-11
Rep.
169. The Workplace
Health, Safety and Compensation Act is repealed.
Commencement
170. This Act
comes into force on September 1, 2023.
ŠKing's Printer