Second

Session, 50th General Assembly

Charles III, 2022

BILL 18

AN ACT RESPECTING THE

HEALTH AND SAFETY OF WORKERS AND THE COMPENSATION OF WORKERS FOR INJURIES

SUFFERED IN THE COURSE OF THEIR EMPLOYMENT

Received

and Read the First Time ................................................................

Second

Reading ............................................................................................

Committee .....................................................................................................

Third

Reading ...............................................................................................

Royal

Assent .................................................................................................

HONOURABLE BERNARD

DAVIS

Minister

Responsible for Labour

Ordered to be printed by

the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would enact the Workplace Health, Safety and Compensation

Act, 2022 and repeal the Workplace

Health, Safety and Compensation Act .

The Bill would

incorporate 66 amendments

recommended in the statutory review of the Act; and

modernize the language in the

Act, including incorporating gender-neutral language.

A BILL

AN ACT RESPECTING THE HEALTH AND SAFETY OF

WORKERS AND THE COMPENSATION OF WORKERS FOR INJURIES SUFFERED IN THE COURSE OF

THEIR EMPLOYMENT

Analysis

Short title

Interpretation

Human Rights Act, 2010

PART

THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION

Definition

Commission continued

Board of directors

Duties and powers

Chief executive officer

Commission staff

Offices of commission

Property of commission

Financial power

Audits of commission

Report under Transparency and

Accountability Act

Business

No liability

Agreements

Powers re examination

Information confidential

Exclusive jurisdiction

Stated case

Rules for stated case

Notification of stated case

PART

WORKPLACE HEALTH AND SAFETY

Definitions

Application of

Part

Duties of commission

Cooperation between commission and

occupational health and safety division

Cooperation between commission and

Canada-Newfoundland and Labrador Offshore Petroleum Board

Administrative costs

Research fund

PART

III

EXTERNAL REVIEWS

Definition

Review board continued

Review board

Officers and employees

No liability

Expenses

Review commissioner bound

Rules

Application to review commissioner

Review by review commissioner

Application for reconsideration

Conflict of interest

Audits of review board

Report under Transparency and

Accountability Act

PART

APPLICATION OF ACT

Application of Act

Employer covered

Coverage for particular workers

Independent operator

Work training programs

PART

COMPENSATION AND RIGHT OF ACTION

Compensation payable

Proportionate compensation

Compensation instead of action

No compensation

Where action allowed

Commission decides if action prohibited

Length of disability

Compensation to non-residents

Relocation

Injury outside province

No waiver of benefits

Notice of accident

Failure to give notice

Mitigation of injury

Application for compensation

Duties of employer

Duties of health care provider

Medical records

Medical information

Claim investigated

Proof required

Presumption

Medical examination required

Objection to claim

Power to review compensation

Compensation where fatal accident

Payment to a remarried spouse

Method of payment

Compensation may be apportioned

Compensation unpaid at death

Household to be continued

Payments to children

Compensation for disability

Lost earning capacity

Compensation to be reviewed

Retirement benefits

Earning capacity reviewed

Recurrence

Rescue work

Calculation of earnings

Benefits to be considered

No amount in excess of compensation

Payment of compensation

Compensation not assignable

Overpayment of compensation

PART

HEALTH CARE

Where healthcare needed

Health care

Contributions for health care

First medical treatment

PART

VII

RETURN TO WORK AND REHABILITATION

Rehabilitation

Duty to co-operate in return to work

Obligation to re-employ

Labour market re-entry assessment and

plan

Provision of information

PART

VIII

OCCUPATIONAL DISEASES

Occupational disease

Occupational disease compensation

St. Lawrence

Medical committees

PART

PRESUMPTION RESPECTING FIREFIGHTERS AND VOLUNTEER FIREFIGHTERS

Definitions

Presumption

Health care

Application

PART

PRESUMPTION RESPECTING POST-TRAUMATIC STRESS DISORDER

Post-traumatic stress disorder

presumption

Application

PART

INJURY FUND AND ASSESSMENTS

Injury fund

Classes of industry

Subclasses

Assessment or rate modification

Assessment rated on payroll

Manner of assessment

Employer to pay assessments

When assessments due

Account status requests

Information may be required

Calculation of payroll

No deduction from earnings

Commission may estimate

Credit balance due employer

Charges to other classes

Cost of medical investigations

Where assessment insufficient

Arrangement with other provinces

Arrangement with self-insurers

Where industry temporary

Former employers

Change of ownership

Effect of refusal

Accounts within fund

Reserves within fund

Payments in arrears

Where default

Director's liability

Amount in default

Commission may withhold money

Assessment where work contracted

Mechanics' Lien Act

Assessment as lien

PART

XII

GENERAL

Offence

Statutory Review

Lieutenant-Governor in Council

regulations

Commission regulations

Review board regulations

Fees and forms

PART

XIII

CONSEQUENTIAL AMENDMENTS, REPEAL AND COMMENCEMENT

SNL2015 cA-1.2 Amdt

RSNL1990 cA-22 Amdt.

RSNL1990 cC-2 Amdt.

RSNL1990 cE-10 Amdt.

SNL2007 cE11.01 Amdt.

SNL2007 cH-17 Amdt.

SNL2016 cI-2.1 Amdt.

RSNL1990 cO-3 Amdt.

SNL2019 cO-6.1 Amdt.

RSNL1990 cP-26 Amdt.

RSNL1990 cP-42 Amdt.

RSNL1990 cS-32 Amdt.

NLR 144/04 Amdt.

CNLR 1010/96 Amdt.

CNLR 1148/96 Amdt.

NLR 5/12 Amdt.

RSNL1990 cW-11 Rep.

Commencement

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

(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" i ncludes 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) ho spital 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

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,

(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. I n 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

(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), w here 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

(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) e xercise the care,

diligence and skill that a reasonably prudent person would exercise in

comparable circumstances.

Chief executive

officer

8. T he 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

(1) T he 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

(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

(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

(1) T he 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

(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

(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

(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

(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

(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. W here 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. W here 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

(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

(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), w here 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

(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) T he

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. A n 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

(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

(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

(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

(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

(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;

(

b) o rder 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

(1) T he 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

(1) This Act applies to workers and employers engaged in or in

connection with an industry in the province except

(

a) those industries, emplo yers 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 a n 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

(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

(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

(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), t he 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. W here 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,

com pensation 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

(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

(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

(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,

t he 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

(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. T he 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

(1) W here 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

(1) Compen sation 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

(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

(1) Where a worker or dependent applies for compensation the

worker shall file with the commission

(

a) a n 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

(1) A n 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

(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

(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. W here 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

(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

(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

(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

(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. T he 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

(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) N otwithstanding

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

(1) W here, 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

(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

(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

(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) t he 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. W here 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

(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,

wh ichever, 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), w here 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

(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) W here the commission

has, prior to J anuary 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

(1) A n 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

(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

(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

(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

(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

(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

(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

(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), t he 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

(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) W here 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

(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) Th e 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

(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

(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 o r

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

(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,

St. Lawrence

(1) Where

(

a) a work er 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 wor ker 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) th e 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

(1) In this

section "committee" means a

committee of medical practitioners constituted and appointed under this

section.

(2) Th e 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) t he 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) W here 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 a n 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,

(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

(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

(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

(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 pos t-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

(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

(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) tr ansfer 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

(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

(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

(1) T he 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

(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

(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

(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

(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 th