role="main" class="main-container container js-quickedit-main-content" id="main-content">

Bill 99, Workers' Compensation Reform Act, 1996

Witmer, Hon. Elizabeth Minister of Labour

Please select

View bill

Status

Original

Workers' Compensation Reform Act, 1996

EXPLANATORY NOTE

The Bill repeals the Workers' Compensation Act and replaces it with the Workplace Safety and Insurance Act, 1996 (set out as

Schedule A to the Bill). The Blind Workers' Compensation Act and the Workers'

Compensation Insurance Act are also repealed. Consequential amendments are made to several other statutes.

The name of the Workers' Compensation Board is changed, and becomes "Workplace Safety and Insurance Board". The name of the Workers' Compensation Appeals Tribunal is also changed, and becomes "Workplace Safety and Insurance Appeals

Tribunal".

The Workplace Health and Safety Agency, established under the Occupational Health and Safety Act , is terminated and its functions are transferred to the Workplace Safety and Insurance Board. (See

Part II of the new Act.) The Board is

given additional powers and duties relating to the designation of safe workplace associations and medical clinics and training centres that specialize in occupational health and safety matters.

The following are some of the changes to the current Workers' Compensation Act that are made by the new Act. The new Act applies with respect to accidents that occur on or after July 1, 1997. (For accidents before that date,

transitional rules are set out in

Part IX of the new Act.)

The Bill comes into force on July 1, 1997.

1. Workers' entitlement to benefits

Part III of the new Act governs the entitlement of workers and the survivors of deceased workers to benefits under the "insurance plan" (i.e., Parts III to IX of the new Act).

Section 12 of the new Act sets out the circumstances in which workers are entitled to benefits for mental stress.

Section 13 governs workers' entitlement to benefits for chronic pain (which is to be defined in the regulations) and permits the

benefits to be restricted or eliminated in accordance with the regulations.

Workers are required to file their claim for benefits under the insurance plan as soon as possible after they are injured, and must do so within six months. Survivors are required to filetheir claim for benefits as soon as possible after the

worker's death, and must do so within six months. The Board may make exceptions to the deadline. (See

section 21 of the new Act.)

When filing a claim, workers are required to consent to the disclosure to their employer of information provided by health professionals concerning the workers' functional abilities. A worker who does not give his or her consent may not be

entitled to benefits under the insurance plan. (See subsections 21 (5) and (6) of the new Act.)

2. Health care benefits

Part IV of the new Act governs health care benefits for workers.

Section 32 of the new Act lists the types of health care provided under the insurance plan. Injured workers are required to co-operate in the health care measures that the Board

considers appropriate. (See

section 34 of the new Act.)

Section 37 of the new Act governs the provision of reports by health care practitioners, hospitals and health facilities. Health professionals are required to provide the information prescribed by the regulations concerning a worker's

functional abilities.

3. Return to work

Part V of the new Act governs the rights and duties of workers and employers with respect to returning workers to work. Employers and injured workers are required to co-operate in the early and safe return of the workers to work. (See

section

40 of the new Act.)

Section 42 of the new Act, concerning the preparation and implementation of labour market re-entry plans for certain injured workers, replaces the provisions of the current Act relating to vocational rehabilitation.

4. Compensation

Part VI of the new Act governs payments for loss of earnings and other types of losses and provides death benefits in respect of deceased workers.

Payments for loss of earnings are governed by

section 43 of the new Act (which replaces sections 37 and 43 of the current Act). Under the new Act, workers are entitled to 85 per cent of their pre-injury net average earnings (less the amount

that they earn or are able to earn after the injury). Under the current Act, workers are entitled to 90 per cent of that amount.

Payments for loss of retirement income are governed by

section 45of the new Act (which replaces

section 44 of the current Act). Under the new Act, the Board is required to set aside 5 per cent of the payments to a worker for loss of earnings,

beginning after the worker has been receiving payments for loss of earnings for 12 continuous months. The worker may contribute an additional 5 per cent from the payments.

Compensation for non-economic loss is governed by

section 46 of the new Act;

section 47 governs the determination of the degree of a worker's permanent impairment (if any). These provisions replace

section 42 of the current Act. Changes are

made to the process for determining the degree of a worker's permanent impairment.

Death benefits payable to survivors of deceased workers are governed by

section 48 of the new Act. The Board may apportion benefits between the worker's spouse and children in certain circumstances.

Indexation of payments under the insurance plan and amounts set out in the Act is governed by sections 49 to 52 of the new Act. Most payments under the insurance plan are increased annually in accordance with the general indexing factor

described in subsection 49 (1) of the new Act. That indexing factor differs from the factor used under the current Act. Some payments are increased in accordance with the alternate indexing factor described in subsection 50 (1) of the new Act.

Average earnings are calculated in accordance with

section 53 of the new Act. The Board is required to take into account the worker's pre-injury employment pattern.

Access to Board records (by workers and employers) is governed by sections 57 to 59 of the new Act.

5. Employers and their obligations

Part VII of the new Act stipulates what employers are required to participate in the insurance plan (and permits other employers to apply to participate in the plan).

Part VII also governs the rights and duties of employers under the insurance

plan.

When an employer ceases to be a

Schedule 1 employer or a

Schedule 2 employer, the employer must notify the Board within 10 days and promptly pay amounts owing to the Board. (See

section 75 of the new Act.)

Sections 80 to 82 of the new Act govern the determination of the premiums payable under the insurance plan by

Schedule 1 employers and the amounts payable by

Schedule 2 employers for the Board's administrative expenses. The Board will notify

Schedule 1 employers of their premium rate and other details necessary forthe employers to calculate the premiums payable under the insurance plan. The Board will notify

Schedule 2 employers of the amount payable to the Board. (See

section 85 of

the new Act.)

6. Insurance fund

The name of the fund used to pay compensation under the current Act (the "accident fund") is changed, and becomes the "insurance fund".

Part VIII of the new Act concerns the administration of the insurance fund.

7. Decisions of the Board and appeals to the Appeals Tribunal

Part XI of the new Act sets out the jurisdiction of the Board and of the Appeals Tribunal to hear and decide matters under the new Act and governs their decisions and the decision-making process.

Section 114 of the new Act makes explicit the requirement that workers, survivors and employers file objections to decisions by the Board. That

section limits the period within which objections may be filed, and permits the Board to make

exceptions. A notice of objection must indicate why the decision is incorrect or why it should be changed.

The jurisdiction of the Appeals Tribunal to hear appeals is restricted.

Section 117 of the new Act sets out its jurisdiction, and subsection 117 (2) the exceptions to its jurisdiction. (Its existing jurisdiction is set out in

section 86 of the

current Act.) When making a decision on an appeal, the Appeals Tribunal must apply Board policies. The Board may certify which policies apply in a particular case. (See subsections 118 (2) and 119 (5) of the new Act.)

Time limits are established for certain Board decisions and for decisions on appeals. (See subsection 116 (2) and

section 120 of the new Act.)

8. Enforcement

Part XII of the new Act sets out the Board's powers of examination and investigation and governs the enforcement of payment obligations under the new Act. It also sets out the offences under the new Act.

The Board acquires additional powers under the new Act to enforce payment obligations and some existing powers are clarified. The additional powers include the right to obtain payment from a successor employer. (See

section 139 of the new Act.)

The Board is required to develop policies governing the exercise of some new powers.

9. Administration of the new Act

Part XIII of the new Act sets out the corporate structure and powers of the Board and the structure and powers of the Appeals Tribunal. New conflict of interest rules are established with respect to investments held by certain members of the

board of directors of the Board and by the chair of the Appeals Tribunal. (See subsections 156 (8) to (11) and 168(7) of the new Act.)

The Office of the Worker Adviser and the Office of the Employer Adviser are continued and the scope of their mandate is changed. The Ministry of Labour will review the functions and operations of each office before January 1, 1999 and determine

whether there is a continuing need for the office. (See

section 171 of the new Act.)

Bill1996

An Act to secure the financial stability

of the compensation system for injured workers,

to promote the prevention of injury and disease

in Ontario workplaces and to revise the

Workers' Compensation Act and make related

amendments to other Acts

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

WORKPLACE SAFETY AND INSURANCE ACT, 1996

1. The Workplace Safety and Insurance Act, 1996 , as set out in

Schedule A to this Act, is enacted.

OCCUPATIONAL HEALTH AND SAFETY ACT

(1) The definition of "Agency" in subsection 1 (1) of the Occupational Health and Safety Act is repealed.

(2) The definition of "certified member" in subsection 1 (1) of the Act is repealed and the following substituted:

"certified member" means a committee member who is certified by the Workplace Safety and Insurance Board under the Workplace Safety and Insurance Act, 1996 . ("membre agréé")

(3) The definition of "occupational illness" in subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1994,

chapter 24,

section 35, is further amended by striking out "as defined by the Workers' Compensation Act "

at the end thereof and substituting "for which a worker is entitled to benefits under the Workplace Safety and Insurance Act, 1996 ".

(4) Subsection 12 (1) of the Act is amended by striking out "For workplaces to which the Workers' Compensation Act applies, the Workers' Compensation Board" at the beginning and substituting "For workplaces to which the

insurance plan established under the Workplace Safety and Insurance Act, 1996 applies, the Workplace Safety and Insurance Board".

(5) Section 13 of the Act, as amended by the Statutes of Ontario, 1995,

chapter 5,

section 28, is repealed.

(6) Section 14 of the Act, as amended by the Statutes of Ontario, 1995,

chapter 5,

section 29, is repealed.

(7) Section 15 of the Act is repealed.

(8) Section 16 of the Act, as amended by the Statutes of Ontario, 1995,

chapter 5,

section 30, is repealed.

(9) Section 17 of the Act, as amended by the Statutes of Ontario, 1995,

chapter 5,

section 31, is repealed.

(10) Sections 18 and 19 of the Act are repealed.

(11) Section 22 of the Act is repealed and the following substituted:

Contribution to defray cost

(1) The Workplace Safety and Insurance Board shall require

Schedule 1 and

Schedule 2 employers under the Workplace Safety and Insurance Act, 1996 to make payments to defray the cost of administering this Act and

the regulations. The Lieutenant Governor in Council may fix the total payment to be made by all employers for that purpose.

Same

(2) The Workplace Safety and Insurance Board shall remit the money collected from employers under this

section to the Minister of Finance.

(12) Subsection 52 (2) of the Act is amended by striking out "Workers' Compensation Board" in the fifth line and substituting "Workplace Safety and Insurance Board".

(13) Subsection 52 (3) of the Act is amended by striking out "Workers' Compensation Board" in the sixth and seventh lines and substituting "Workplace Safety and Insurance Board".

(14) Clause 65 (1) (

b) of the Act, as re-enacted by the Statutes of Ontario, 1995,

chapter 5,

section 32, is revoked.

(15) Subsection 65 (1) of the Act, as amended by the Statutes of Ontario 1995,

chapter 5,

section 32, is further amended by adding "or" at the end of clause (d), by striking out "or" at the end of clause (

e) and by repealing clause

(f).

(16) Paragraph 15 of subsection 70 (2) of the Act is repealed.

CONSEQUENTIAL AMENDMENTS

Section 115 of the County of Oxford Act is amended by striking out "for the purposes of the Workers' Compensation Act " in the fourth and fifth lines and substituting "for the purposes of the insurance plan

established under the Workplace Safety and Insurance Act, 1996".

Section 114 of the District Municipality of Muskoka Act is amended by striking out "for the purposes of the Workers'Compensation Act " in the fourth and fifth lines and substituting "for the purposes of the insurance

plan established under the Workplace Safety and Insurance Act, 1996 ".

5. Paragraph 9 of subsection 8 (1) of the Education Act is repealed and the following substituted:

application of Workplace Safety and Insurance Act, 1996

9. Prescribe the conditions under which and the terms upon which pupils of boards shall be deemed to be workers for the purposes of the insurance plan established under the Workplace Safety and Insurance Act, 1996 , deem pupils to be

workers for those purposes and require a board to reimburse Ontario for payments made by Ontario under the insurance plan in respect of such a pupil.

6. Subsection 4 (3) of the Fire Marshals Act is amended by striking out "for the purposes of the Workers' Compensation Act " in the third, fourth and fifth lines and substituting "for the purposes of the insurance plan

established under the Workplace Safety and Insurance Act, 1996 .

7. Subsection 11.2 (2) of the Health Insurance Act , as enacted by the Statutes of Ontario, 1996,

chapter 1,

Schedule H,

section 8, is amended by striking out " Workers' Compensation Act " in the second and third lines

and substituting "insurance plan established under the Workplace Safety and Insurance Act, 1996 or under".

8. The definition of "because of handicap" in subsection 10 (1) of the Human Rights Code , as amended by the Statutes of Ontario, 1993,

chapter 27, Schedule, is further amended by striking out "under the Workers'

Compensation Act " at the end of clause (

e) and substituting "under the insurance plan established under the Workplace Safety and Insurance Act, 1996 ".

9. (1) Subsection 267 (2) of the Insurance Act is amended by striking out "under the Workers' Compensation Act " in the third line and substituting "under the insurance plan established under the Workplace Safety

and Insurance Act, 1996 ".

(2) Subsection 267 (3) of the Act is amended by striking out "for the purpose of determining a person's entitlement to compensation under subsection 10 (2) of the Workers' Compensation Act " in the second, third, fourth and

fifth lines and substituting "for the purpose of determining a person's entitlement to benefits under subsection 30 (6) of the Workplace Safety and Insurance Act, 1996 ".

(3) Subsection 267 (5) of the Act is amended,

(

a) by striking out "Workers' Compensation Board" in the first line and in the fourth and fifth lines and substituting in each case "Workplace Safety and Insurance Board"; and

(

b) by striking out "indemnité" in the fifth line and in the eighth line of the French version and substituting in each case "prestation".

10. (1) Clause 8 (2) (

e) of the Legislative Assembly Act is amended by striking out "the Workers' Compensation Board" in the eighth and ninth lines and substituting "the Workplace Safety and Insurance Board".

(2) Section 102 of the Act is amended by striking out "within the meaning and for the purposes of the Workers' Compensation Act " in the third, fourth and fifth lines and substituting "for the purposes of the insurance plan

established under the Workplace Safety and Insurance Act, 1996 ".

Section 276 of the Municipality of Metropolitan Toronto Act is amended by striking out "for the purposes of the Workers' Compensation Act " in the fifth and sixth lines and substituting "for the purposes of the

insurance plan established under the Workplace Safety and Insurance Act, 1996 ".

12. Subsection 55 (3) of the Police Services Act is amended by striking out "For the purpose of the Workers' Compensation Act " in the first and second lines and substituting "For the purposes of the insurance plan

established under the Workplace Safety and Insurance Act, 1996 ".

13. Subsection 116 (3) of the Power Corporation Act is repealed and the following substituted:

Where insurance not necessary

(3) If a municipal corporation or municipal commission is a

Schedule 1 employer for the purposes of the insurance plan established under the Workplace Safety and Insurance Act, 1996 and is paying premiums under that plan, it is not

necessary for it to maintain insurance against liability for bodily injury to its employees.

14. Subsection 2 (1) of the Proceedings Against the Crown Act is amended by striking out "the Workers' Compensation Act " in the eleventh and twelfth lines and substituting "the Workplace Safety and Insurance Act,

1996 ".

Section 137 of the Regional Municipalities Act is amended by striking out "for the purposes of the Workers' Compensation Act " in the fifth and sixth lines and substituting "for the purposes of the insurance plan

established under the WorkplaceSafety and Insurance Act, 1996 ".

16. Subsection 2.1 (10) of the Retail Sales Tax Act , as enacted by the Statutes of Ontario, 1994,

chapter 13,

section 3, is amended by striking out "the Workers' Compensation Act " in the fifth and sixth lines and

substituting "the Workplace Safety and Insurance Act, 1996 ".

Section 2 of the War Veterans Burial Act is amended by striking out "under clause 35 (1) (

a) of the Workers' Compensation Act " in the seventh and eighth lines and substituting "under subsection 48 (23) of the

Workplace Safety and Insurance Act, 1996 ".

REPEALS, COMMENCEMENT AND

SHORT TITLE

Repeals

18. The following are repealed:

1. The Blind Workers' Compensation Act .

2. The Workers' Compensation Act , as amended by the Statutes of Ontario 1993,

chapter 10,

section 55, 1993,

chapter 27, Schedule, 1993,

chapter 38,

section 71, 1994,

chapter 8,

section 37, 1994,

chapter 24, sections 1 to 34,

1994,

chapter 25,

section 86, 1994,

chapter 27,

section 43 and 1995,

chapter 5, sections 1 to 27.

3. The Workers' Compensation Insurance Act .

Section 55 of the Insurance Statute Law Amendment Act, 1993 .

Section 71 of the Crown Employees Collective Bargaining Act, 1993 .

Section 37 of the Employer Health Tax Amendment Act, 1994.

7. The Workers' Compensation and Occupational Health and Safety Amendment Act, 1994 .

Section 86 of the Crown Forest Sustainability Act, 1994 .

9. The Workers' Compensation and Occupational Health and Safety Amendment Act, 1995 .

Commencement

19. This Act comes into force on July 1, 1997.

Short title

20. The

short title of this Act is the Workers' Compensation Reform Act, 1996 .

SCHEDULE A

WORKPLACE SAFETY AND INSURANCE ACT, 1996

CONTENTS

PART I

INTERPRETATION

Purpose

Definitions

PART II

INJURY AND DISEASE PREVENTION

Application

Functions of the Board

Advisory council

Safe workplace associations, etc.

Designated entities

Fees

First aid requirements

PART III

INSURANCE PLAN

Insured Employment, Injuries and Diseases

Insured workers

Deemed workers (optional insurance)

Insured injuries

Restriction re chronic pain

Occupational diseases

No waiver of entitlement

Serious and wilful misconduct

Employment outside Ontario

Accident outside Ontario

Obligation to elect, concurrent entitlement outside Ontario

Notice of Accident and Claim for Benefits

Notice by employer of accident

Claim for benefits, worker

Continuing obligation to provide information

Wages and Employment Benefits

Wages for day of accident

Employment benefits

Rights of Action

No action for benefits

Application of certain sections

Certain rights of action extinguished

Liability where negligence, fault

Election, concurrent entitlements

Election re certain Insurance Act benefits

Decisions re rights of action and liability

PART IV

HEALTH CARE

Definition

Entitlement to health care

Duty to co-operate

Board request for health examination

Employer request for health examination

Reports re health care

Transportation to hospital, etc.

Repair to assistive devices

PART V

RETURN TO WORK

Duty to co-operate in return to work

Obligation to re-employ

Labour market re-entry plan

PART VI

COMPENSATION

Benefits

Payments for loss of earnings

Review re loss of earnings

Payments for loss of retirement income

Compensation for non-economic loss

Degree of permanent impairment

Death benefits

Annual Adjustments

General indexing factor

Alternate indexing factor

Indexation of amounts in the Act

Annual adjustment of payments

Ancillary Matters

Average earnings

Maximum amount of average earnings

Net average earnings

Administration

Effect of payment, etc., from employer

Worker's access to records

Employer's access to records

Employer's access to health records

Payments to incapable persons, minors

Frequency of payments

Agreements re payments

Benefits not assignable, etc.

Deduction for family support

Suspension of payments

PART VII

EMPLOYERS AND THEIR OBLIGATIONS

Participating Employers

Participating employers

"Trade" of municipal corporations, etc.

Training agencies and trainees

Deemed employer, volunteer fire or ambulance brigade

Deemed employer, emergency workers

Deemed employer, seconded workers

Deemed status, illegal employment of minor

Declaration of deemed status

Registration and Information Requirements

Registration

Notice of change of status

Material change in circumstances

Annual statements

Certification requirement

Record-keeping

Calculating Payments by Employers

Premiums, all

Schedule 1 employers

Adjustments in premiums for particular employers

Experience and merit rating programs

Payments by

Schedule 2 employers

Penalty, failure to co-operate

Notice to employers

Payment Obligations of

Schedule 1 Employers

Payment of premiums

Default in paying premiums

Payment Obligations of

Schedule 2 Employers

Payment of benefits

Payments re expenses of the Board

Deposit by

Schedule 2 employers

Direction to insure workers

Obligations in Special Circumstances

Schedule 2 employers, occupational disease

PART VIII

INSURANCE FUND

Insurance Fund

Reserve funds

Special reserve fund

Exceptional circumstances

PART IX

TRANSITIONAL RULES FOR BENEFITS

Interpretation

Definitions

Pre-1997 Injuries

Continued application of pre-1997 Act

Maximum medical rehabilitation

Death benefits

Temporary partial disability

Non-economic loss where permanent impairment

Compensation for future loss of earnings

Vocational rehabilitation

Permanent partial disability supplements

Indexation of compensation

PART X

UNINSURED EMPLOYMENT

Application

Employer's liability

Liability of owner, etc.

Voluntary assumption of risk

Insurance proceeds

PART XI

DECISIONS AND APPEALS

Decisions by the Board

Jurisdiction

Principle of decisions

Objection to Board decision

Power to reconsider

Mediation

Appeals Tribunal

Jurisdiction

Principle of decision

Right of appeal

Time limit for decisions

Periodic payments pending decision

Power to reconsider

Mediation

Procedural and Other Powers

Practice and procedure

Powers re proceedings

Payment of expenses of witnesses, etc.

List of health professionals

PART XII

ENFORCEMENT

Powers of Examination and Investigation

Examination, etc., of records

Powers of examiners, etc.

Enforcement of Payment Obligations

Security for payment

Right of set-off

Enforcement by the courts

Enforcement through municipal tax rolls

Contractors and subcontractors

Lienholder under Construction Lien Act

Licensee, Crown Forest Sustainability Act, 1994

Preference upon certain distributions

Lien upon property

Obligations of successor employers

Overpayments

Enforcement policies

Offences and Penalties

Offence, false or misleading statement

Offence, confidential information

Offence, employer registration, etc.

Offence, statements and records

Offence, obstruction

Offence, security for payment

Offence, deduction from wages

Offence, contributions from workers

Offence, regulations

Offence by director, officer

Penalty

PART XIII

ADMINISRATION OF THE ACT

Workplace Safety and Insurance Board

Board continued

Agreement re duplication of premiums

Duties of the Board

Board of directors

Duties of the board of directors

Delegation

Offices of the Board

Memorandum of understanding

Policy directions

Value for money audit

Audit of accounts

Report to the Superintendent of Insurance

Annual report

Employees' pension plan continued

Mine rescue stations

Workplace Safety and Insurance Appeals Tribunal

Appeals Tribunal continued

Hearing of appeals

Continuing authority

Offices of the Worker and Employer Advisers

Office continued

General

Committee of employers

French language services

Immunity

Compellability of witnesses

Prohibition re disclosing information

Evidence of decisions

Regulations

Commencement

Short title

PART I

INTERPRETATION

Purpose

1. The purpose of this Act is to accomplish the following in a financially responsible and accountable manner:

1. To promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases.

2. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.

3. To provide compensation and other benefits to those workers and to the spouses and dependants of deceased workers.

4. To facilitate the re-entry into the labour market of spouses of deceased workers where appropriate.

Definitions

(1) In this Act,

"accident" includes,

(

a) a wilful and intentional act, not being the act of the worker,

(

b) a chance event occasioned by a physical or natural cause, and

(

c) disablement arising out of and in the course of employment; ("accident")

"Appeals Tribunal" means the Workplace Safety and Insurance Appeals Tribunal; ("Tribunal d'appel")

"Board" means the Workplace Safety and Insurance Board; ("Commission")

"child" means a child within the meaning of subsection 1 (1) of the Family Law Act ; ("enfant")

"dependants" means, in relation to a deceased worker, such of the following persons as were wholly or partly dependent upon the worker's earnings at the time of his or her death or who, but for the incapacity due to the accident, would have

been so dependent:

1. Parent, stepparent or person who stood in the role of parent to the worker.

2. Sibling or half-sibling.

3. Grandparent.

4. Grandchild; ("personnes à charge")

"emergency worker" means a person described in paragraph 6, 7 or 8 of the definition of worker who is injured while engaged in the activity described in that paragraph; ("travailleur dans une situation d'urgence")

"employer" means every person having in his, her or its service under a contract of service or apprenticeship another person engaged in work in or about an industry and includes,

(

a) a trustee, receiver, liquidator, executor or administrator who carries on an industry,

(

b) a person who authorizes or permits a learner to be in or about an industry for the purpose of undergoing training or probationary work, or

(

c) a deemed employer; ("employeur")

"health care practitioner" means a health professional, a drugless practitioner regulated under the Drugless Practitioners Act or a social worker; ("praticien de la santé")

"health professional" means a member of the College of a health profession as defined in the Regulated Health Professions Act, 1991 ; ("professionnel de la santé")

"impairment" means a physical or functional abnormality or loss (including disfigurement) which results from an injury and any psychological damage arising from the abnormality or loss; ("déficience")

"independent operator" means a person who carries on an industry included in

Schedule 1 or

Schedule 2 and who does not employ any workers for that purpose; ("exploitant indépendant")

"industry" includes an establishment, undertaking, trade, business or service and, if domestics are employed, includes a household; ("secteur d'activité")

"insurance fund" means the fund described in

section 93; ("caisse d'assurance")

"insurance plan" means the benefits and obligations set out in Parts III to IX; ("régime d'assurance")

"learner" means a person who, although not under a contract of service or apprenticeship, becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work; ("stagiaire")

"Minister" means the Minister of Labour; ("ministre")

"occupational disease" includes,

(

a) a disease resulting from exposure to a substance relating to a particular process, trade or occupation in an industry,

(

b) a disease peculiar to or characteristic of a particular industrial process, trade or occupation,

(

c) a medical condition that in the opinion of the Board requires a worker to be removed either temporarily or permanently from exposure to a substance because the condition may be a precursor to an occupational disease, or

(

d) a disease mentioned in

Schedule 3 or 4; ("maladie professionnelle")

"permanent impairment" means impairment that continues to exist after the worker reaches maximum medical recovery; ("déficience permanente")

"personal representative" means a personal representative as defined in subsection 1 (1) of the Succession Law Reform Act ; ("représentant successoral")

"prescribed" means prescribed by the regulations made under this Act; ("prescrit")

"Schedule 1 employer" means an employer in a class or group of industries included in

Schedule 1 but does not include an employer who is a

Schedule 2 employer (other than a

Schedule 2 employer declared by the Board under

section 73 to be deemed

to be a

Schedule 1 employer); ("employeur mentionné à l'annexe 1")

"Schedule 2 employer" means an employer in a class of industries included in

Schedule 2; ("employeur mentionné à l'annexe 2")

"student" means a person who is pursuing formal education as a full-time or part-time student and is employed by an employer for the purposes of the employer's industry, although not as alearner or an apprentice; ("étudiant")

"survivor" means a spouse, child or dependant of a deceased worker; ("survivant")

"worker" means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following:

1. A learner.

2. A student.

3. An auxiliary member of a police force.

4. A member of a municipal volunteer ambulance brigade.

5. A member of a municipal volunteer fire brigade whose membership has been approved by the chief of the fire department or by a person authorized to do so by the entity responsible for the brigade.

6. A person summoned to assist in controlling or extinguishing a fire by an authority empowered to do so.

7. A person who assists in a search and rescue operation at the request of and under the direction of a member of the Ontario Provincial Police.

8. A person who assists in connection with an emergency that has been declared to exist by the Premier of Ontario or the head of a municipal council.

9. A person deemed to be a worker of an employer by a direction or order of the Board.

10. A person deemed to be a worker under

section 11.

11. A pupil deemed to be a worker under the Education Act . ("travailleur")

Schedules

(2) A reference in this Act to

Schedule 1, 2, 3 or 4 means the schedules as established in the regulations made under this Act.

PART II

INJURY AND DISEASE PREVENTION

Application

3. This Part applies with respect to workplaces governed by the Occupational Health and Safety Act and the employers andworkers to whom that Act applies and to employers engaged in any class of farm-related activity in

Schedule 1 and their workers.

Functions of the Board

(1) In order to promote health and safety in workplaces and to prevent and reduce the occurrence of workplace injuries and occupational diseases, the Board's functions include the following:

1. To promote public awareness of occupational health and safety.

2. To educate employers, workers and other persons about occupational health and safety.

3. To foster a commitment to occupational health and safety among employers, workers and others.

4. To develop standards for the certification of persons who are required to be certified for the purposes of the Occupational Health and Safety Act and to approve training programs for certification.

5. To certify persons who meet the standards.

6. To develop standards for the accreditation of employers who adopt health and safety policies and operate successful health and safety programs.

7. To accredit employers who meet the standards.

8. To designate safe workplace associations, to designate medical clinics and training centres specializing in occupational health and safety matters and to oversee their operation and make grants or provide funds to them.

9. To provide funding for occupational health and safety research.

10. To develop standards for training about first aid and to provide funding to those offering such training.

11. To advise the Minister on matters relating to occupational health and safety that are referred to the Board or brought to its attention.

Payments to construction workers

(2) The Board shall pay persons who are regularly employed in the construction industry for the time they spend fulfilling the requirements to become certified for the purposes of the Occupational Health and Safety Act . However, the

Board shall notpay persons who may represent management as members of a joint health and safety committee.

Transition, payments

(3) The Board may require employers to pay such amounts as the Board considers appropriate to reimburse the Board for payments made by the Workplace Health and Safety Agency under subsection 16 (6) of the Occupational Health and Safety

Act during 1996.

Advisory council

(1) The Board may establish a workplace health and safety advisory council to advise the Board on such issues as it considers appropriate.

Composition

(2) The council shall be composed of such members as the Board may appoint.

Safe workplace associations, etc.

(1) The Board may designate an entity as a safe workplace association or as a medical clinic or training centre specializing in occupational health and safety matters if the entity meets the standards established by the

Board.

Standards

(2) The Board shall establish standards respecting governance, objectives, functions and operations to be met by an entity before it is eligible to be designated. The Board may establish standards respecting other matters and may establish

different standards for associations, clinics or centres serving different industries or groups.

Charges to employers

(3) Any funds paid to a safe workplace association under

section 7 shall be charged against the class, subclass or group represented by the association and shall be charged as expenses of the Board to any

Schedule 2 employer represented by the

association.

Same

(4) Any funds paid to a medical clinic or training centre under

section 7 shall be charged as expenses of the Board.

Designated entities

(1) This

section applies with respect to an entity designated under

section 6 as a safe workplace association, a medical clinic or a training centre.

Effect of designation

(2) An entity is eligible for financial assistance from the Board and shall operate in accordance with this

section and the standards established by the Board.

Monitoring

(3) The Board shall monitor the operation of entities and may conduct such audits as it considers necessary.

Directions

(4) The Board may direct an entity to take such actions as the Board considers appropriate. The governing body of the entity shall comply with the direction.

Failure to comply

(5) If an entity does not operate in accordance with this

section and the standards established by the Board,

(

a) the Board may reduce or suspend its financial assistance while the non-compliance continues;

(

b) the Board may assume control of the entity and responsibility for its affairs and operations while the non-compliance continues;

(

c) the Board may revoke the designation and cease to provide financial assistance to it; or

(

d) the Board may take such other steps as it considers appropriate.

Same

(6) If the Board assumes control of the entity and responsibility for its affairs and operations, the governing body of the entity shall comply with any directions given by the Board.

Fees

8. The Board may charge fees for programs or services provided by the Board under this Part.

First aid requirements

(1) The Board may require employers in such industries as it considers appropriate to have such first aid appliances and services as may be prescribed.

Repeal

(2) This

section is repealed on a day to be named by proclamation of the Lieutenant Governor.

PART III

INSURANCE PLAN

Insured Employment, Injuries and Diseases

Insured workers

(1) The insurance plan applies to every worker who isemployed by a

Schedule 1 employer or a

Schedule 2 employer. However, it does not apply to workers who are,

(

a) persons whose employment by an employer is of a casual nature and who are employed otherwise than for the purposes of the employer's industry; or

(

b) persons to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for sale in the person's own home or on other premises not under the control or management of the person

who gave out the articles or materials.

Exception

(2) Subject to

section 11, the insurance plan does not apply to workers who are executive officers of a corporation.

Deemed workers (optional insurance)

(1) Upon application, the Board may declare that any of the following persons is deemed to be a worker to whom the insurance plan applies:

1. An independent operator carrying on business in an industry included in

Schedule 1 or

Schedule 2.

2. A sole proprietor carrying on business in an industry included in

Schedule 1 or

Schedule 2.

3. A partner in a partnership carrying on business in an industry in

Schedule 1 or

Schedule 2.

Same, executive officer

(2) Upon the application of a

Schedule 1 or

Schedule 2 employer who is a corporation, the Board may declare that an executive officer of the corporation is deemed to be a worker to whom the insurance plan applies. The Board may make the

declaration only if the executive officer consents to the application.

Conditions

(3) The Board may make a declaration subject to such conditions as it considers appropriate. The declaration may provide that the person is deemed to be a worker for only such period as is specified.

Payment in advance

(4) The Board may require the employer to pay in advance all or part of any premiums payable in respect of the person.

Revocation of status

(5) The Board may revoke a declaration that a person is adeemed worker if the employer at any time defaults in paying the required premiums in respect of the person.

Set-off

(6) If the employer defaults in paying the required premiums in respect of the person and the person or his or her survivors are entitled to receive payments under the insurance plan, the Board may deduct from the payments to the person or

survivors the amount owed by the employer.

Employer

(7) For the purposes of the insurance plan, while a declaration with respect to a person is in force the following person shall be deemed to be his or her employer:

1. In the case of an independent operator or a sole proprietor, the employer is the independent operator or the sole proprietor.

2. In the case of a partner, the employer is the partnership.

3. In the case of an executive officer of a corporation, the employer is the corporation.

Insured injuries

(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.

Presumptions

(2) If the accident arises out of the worker's employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker's employment, it is presumed to have arisen out of

the employment unless the contrary is shown.

Exception, employment outside Ontario

(3) Except as provided in sections 17 to 19, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario.

Exception, mental stress

(4) Except as provided in subsection (5), a worker is not entitled to benefits under the insurance plan for mental stress.

Same

(5) A worker is entitled to benefits for mental stress that is an acute reaction to a sudden and unexpected traumatic event arising in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused

by his or her employer's decisions or actions relating to theworker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

Restriction re chronic pain

(1) A worker is entitled to benefits under the insurance plan for chronic pain as defined in the regulations but only in such circumstances as may be prescribed.

Extent of entitlement

(2) The benefits to which the worker is entitled for chronic pain are subject to such limits and exclusions as may be prescribed.

Occupational diseases

(1) This

section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged.

Entitlement to benefits

(2) The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.

Presumption re causation

(3) If, before the date of the impairment, the worker was employed in a process set out in

Schedule 3 and if he or she contracts the disease specified in the Schedule, the disease is presumed to have occurred due to the nature of the worker's

employment unless the contrary is shown.

Causation of disease

(4) If, before the date of the impairment, the worker was employed in a process set out in

Schedule 4 and if he or she contracts the disease specified in the Schedule, the disease shall be deemed to have occurred due to the nature of the

worker's employment.

Restriction, silicosis

(5) A worker is not entitled to benefits under the insurance plan for impairment from silicosis unless he or she has been actually exposed to silica dust for at least two years in his or her employment in Ontario prior to becoming impaired. The

survivors of such a worker are not entitled to benefits under the insurance plan.

Restriction, pneumoconiosis, etc.

(6) Subsection (5) applies, with necessary modifications, with respect to impairment from pneumoconiosis and stone worker's or grinder's phthisis.

No waiver of entitlement

15. An agreement between a worker and his or her employer to waive or to forego any benefit to which the worker or his or her survivors are or may become entitled under the insurance plan is void.

Serious and wilful misconduct

16. If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker's death or serious impairment.

Employment outside Ontario

(1) This

section applies if the accident happens while the worker is employed outside of Ontario, if the worker resides and is usually employed in Ontario and if the employer's place of business is in Ontario.

Outside Ontario less than six months

(2) The worker is entitled to benefits under the insurance plan if the employment outside of Ontario has lasted less than six months.

Same, six months or more

(3) Upon the application of the employer, the Board may declare that the insurance plan applies to a worker whose employment outside of Ontario lasts or is likely to last six months or more.

Accident outside Ontario

(1) A worker who resides outside of Ontario is entitled to benefits under the insurance plan if his or her employer's place of business is in Ontario, the worker's usual place of employment is in Ontario and the accident

happens while the worker is employed outside of Ontario for a temporary purpose connected with the worker's employment.

Same, non-Ontario employer

(2) If the accident happens outside of Ontario, the employer's place of business is outside of Ontario and the worker is entitled to compensation under the law of the place where the accident happens, the worker is entitled to benefits under

the insurance plan only if the worker's place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a casual or incidental purpose connected with the worker's employment.

Same, on a vessel

(3) If the accident happens outside of Ontario on a vessel, the worker is entitled to benefits under the insurance plan if the worker resides in Ontario and,

(

a) if the vessel is registered in Canada; or

(

b) if the chief place of business of its owner or of the person who offers it for charter is in Ontario.

Same, certain vehicles, etc.

(4) If the accident happens outside of Ontario on a train, an aircraft or a vessel or on a vehicle used to transport passengers or goods, the worker is entitled to benefits under the insurance plan if he or she resides in Ontario and is

required to perform his or her employment both in and outside of Ontario.

Obligation to elect, concurrent entitlement outside Ontario

(1) This

section applies if a worker is entitled to benefits under the insurance plan relating to an accident and is also entitled to compensation under the laws of another jurisdiction in respect of the accident regardless

of where the accident occurs. This

section also applies with necessary modifications if the worker's survivors are so entitled.

Same

(2) The worker shall elect whether to receive benefits under the insurance plan or to receive compensation under the laws of the other jurisdiction and shall notify the Board of the option elected. If the worker is employed by a

Schedule 2

employer, the worker shall also notify the employer.

Deadline for electing

(3) The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death. However, the Board may permit the election to be made within a longer period.

Failure to elect

(4) If an election is not made or if notice of the election is not given, the worker is presumed to have elected not to receive benefits under the insurance plan unless the contrary is shown.

Notice of Accident and Claim for Benefits

Notice by employer of accident

(1) An employer shall notify the Board within three days after learning of an accident to a worker employed by him, her or it if the accident necessitates health care or results in the worker not being able to earn full

wages.

Same

(2) The notice must be on a form approved by the Board and must be accompanied by such other information concerning the accident as the Board may require.

Failure to comply

(3) An employer who fails to comply with this

section shall pay the prescribed amount to the Board. This payment is in addition to any penalty imposed by a court for an offence under subsection 145 (3).

Claim for benefits, worker

(1) A worker shall file a claim as soon as possible after the accident that gives rise to the claim, but in no case shall he or she file a claim more than six months after the accident or, in the case of an occupational

disease, after the worker learns that he or she suffers from the disease.

Same, survivor

(2) A survivor who is entitled to benefits as a result of the death of a worker shall file a claim as soon as possible after the worker's death, but in no case shall he or she file a claim more than six months after the worker's death.

Extension of time

(3) The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board, it is just to do so.

Form and contents

(4) A claim must be on a form approved by the Board and must be accompanied by such information and documents as the Board may require.

Consent re functional abilities

(5) When filing a claim, a worker must consent to the disclosure to his or her employer of information provided by a health professional under subsection 37 (3) concerning the worker's functional abilities. The disclosure is for the sole

purpose of facilitating the worker's return to work.

Failure to file

(6) If the claimant does not file the claim with the Board in accordance with this

section or does not give the consent required by subsection (5), the Board shall not provide benefits under the insurance plan unless the Board, in its opinion,

decides that it is just to do so.

Notice to employer

(7) The claimant shall give a copy of his or her claim to the worker's employer at the time the claim is given to the Board.

Same, occupational disease

(8) A copy of the claim for an occupational disease must be given to the employer who has most recently employed the worker in the employment to the nature of which the disease is due.

Continuing obligation to provide information

(1) A person receiving benefits under the insurance plan or who may be entitled to do so shall give the Board such information as the Board may require from time to time in connection with the person's claim.

Effect of non-compliance

(2) If the person fails to comply with subsection (1), the Board may reduce or suspend payments to him or her while the non-compliance continues.

Notice of material change in circumstances

(3) A person receiving benefits under the insurance plan or who may be entitled to do so shall notify the Board of a material change in circumstances in connection with the entitlement within 10 days after the material change occurs.

Wages and Employment Benefits

Wages for day of accident

(1) The employer shall pay a worker who is entitled to benefits under the insurance plan his or her wages and employment benefits for the day of the injury as if the accident had not occurred.

Payment by Board

(2) If the employer fails to comply with subsection (1), the Board shall pay the wages and employment benefits to or on behalf of the worker.

Failure to comply

(3) If the employer fails to comply with subsection (1), the employer shall pay to the Board a sum equal to the wages and employment benefits owing under that subsection. This requirement is in addition to any other penalty imposed on the

employer or liability of the employer for the failure to comply.

Employment benefits

(1) Throughout the first year after a worker is injured, the employer shall make contributions for employment benefits in respect of the worker when the worker is absent from work because of the injury. However, the

contributions are required only if,

(

a) the employer was making contributions for employment benefits in respect of the worker when the injury occurred; and

(

b) the worker continues to pay his or her contributions, if any, for the employment benefits while the worker is absent from work.

Failure to comply

(2) If the employer fails to comply with subsection (1),

(

a) the employer is liable to the worker for any loss the worker suffers as a result of the failure to comply; and

(

b) the Board may levy a penalty on the employer not exceeding the amount of one year's contributions for employment benefits in respect of the worker.

Contributions re emergency workers

(3) The actual employer of an emergency worker shall make the contributions required by subsection (1), instead of the worker's deemed employer. The deemed employer shall reimburse the actual employer for the contributions.

Multi-employer benefit plans

(4) Subsection (1) does not apply to an employer who participates in a multi-employer benefit plan in respect of the worker if, when the worker is absent from work because of the injury during the first year after it occurs,

(

a) the plan continues to provide the worker with the benefits to which he or she would otherwise be entitled; and

(

b) the plan does not require the employer to make contributions during the worker's absence and does not require the worker to draw upon his or her benefit credits, if any, under the plan during the absence.

Same

(5) Every multi-employer benefit plan shall contain or be deemed to contain provisions that are,

(

a) sufficient to enable all employers who participate in the plan to be exempted under subsection (4) from the requirement to make contributions; and

(

b) sufficient to provide each worker with the benefits described in subsection (4) in the circumstances described in that subsection.

Entitlement under benefit plans

(6) For the purpose of determining a worker's entitlement to benefits under a benefit plan, fund or arrangement, the worker shall be deemed to continue to be employed by the employer for one year after the date of the injury.

Definition

(7) In this section,

"contributions for employment benefits" means amounts paid in whole or in part by an employer on behalf of a worker or the worker's dependants for health care, life insurance and pension benefits.

Rights of Action

No action for benefits

(1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.

Benefits in lieu of rights of action

(2) The provisions of the insurance plan are in lieu of all rights of action (statutory or otherwise) to which a worker or a worker's survivor is or may be entitled against the worker's employer or an executive officer of the employer for or by

reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.

Application of certain sections

26. Sections 27 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under

the plan.

Certain rights of action extinguished

(1) A worker employed by a

Schedule 1 employer, the worker's survivors and a

Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker's injury or disease:

1. Any

Schedule 1 employer.

2. A director, executive officer or worker employed by any

Schedule 1 employer.

Same,

Schedule 2 employer

(2) A worker employed by a

Schedule 2 employer and the worker's survivors are not entitled to commence an action against the following persons in respect of the worker's injury or disease:

1. The worker's

Schedule 2 employer.

2. A director, executive officer or worker employed by the worker's

Schedule 2 employer.

Restriction

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsections (1) and (2) apply only if the workers were acting inthe course of their employment.

Exception

(4) Subsections (1) and (2) do not apply if any employer other than the worker's employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or

equipment.

Liability where negligence, fault

(1) This

section applies in the following circumstances:

1. In an action by or on behalf of a worker employed by a

Schedule 1 employer or a survivor of such a worker, any

Schedule 1 employer or a director, executive officer or another worker employed by a

Schedule 1 employer is determined to be at

fault or negligent in respect of the accident or the disease that gives rise to the worker's entitlement to benefits under the insurance plan.

2. In an action by or on behalf of a worker employed by a

Schedule 2 employer or a survivor of such a worker, the worker's

Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at

fault or negligent in respect of the accident or the disease that gives rise to the worker's entitlement to benefits under the insurance plan.

Same

(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages.

Determination of fault

(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action.

Same

(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action.

Election, concurrent entitlements

(1) This

section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in

respect of the injury or disease.

Election

(2) The worker or survivor shall elect whether to claim the benefits or to commence the action.

Same, minor

(3) If the worker or survivor is less than 18 years of age, his or her parent or guardian or the Children's Lawyer may make the election on his or her behalf.

Same, incapable person

(4) If a worker is mentally incapable of making the election or is unconscious as a result of the injury,

(

a) the worker's guardian or attorney may make the election on behalf of the worker;

(

b) if there is no guardian or attorney, the worker's spouse may make the election on behalf of the worker; or

(

c) if there is no guardian or attorney and if no election is made within 60 days after the date of the injury, the Public Guardian and Trustee shall make the election on behalf of the worker.

Same

(5) If a survivor is mentally incapable of making the election,

(

a) the survivor's guardian or attorney may make the election on behalf of the survivor; or

(

b) if there is no guardian or attorney and if no election is made within 60 days after the death of the worker, the Public Guardian and Trustee shall make the election on behalf of the survivor.

Subrogation,

Schedule 1 employer

(6) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a

Schedule 1 employer or the deceased worker was so employed, the Board is subrogated to the rights of the worker or survivor in

respect of the action. The Board is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms.

Same,

Schedule 2 employer

(7) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a

Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the worker or survivor in

respect of the action. The employer is solely entitled to determine whetheror not to commence, continue or abandon the action and whether to settle it and on what terms.

Surplus

(8) If the Board or the employer pursues the action and receives an amount of money greater than the amount expended in pursuing the action and providing the benefits under the insurance plan to the worker or the survivor, the Board or the

employer (as the case may be) shall pay the surplus to the worker or survivor.

Effect of surplus

(9) Future payments to the worker or survivor under the insurance plan shall be reduced to the extent of the surplus paid to him or her.

If worker elects to commence action

(10) The following rules apply if the worker or survivor elects to commence the action instead of claiming benefits under the insurance plan:

1. The worker or survivor is entitled to receive benefits under the insurance plan to the extent that, in a judgment in the action, the worker or survivor is awarded less than the amount described in paragraph 3.

2. If the worker or survivor settles the action and the Board approves the settlement before it is made, the worker or survivor is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement is less

than the amount described in paragraph 3.

3. For the purposes of paragraphs 1 and 2, the amount is the cost to the Board of the benefits that would have been provided under the plan to the worker or survivor, if the worker or survivor had elected to claim benefits under the plan

instead of commencing the action.

Election re certain Insurance Act benefits

(1) This

section applies if a worker is injured in an accident on or after January 1, 1994 for which the worker or a survivor may be eligible for statutory accident benefits under

section 268 of the Insurance

Act .

Election

(2) The worker or survivor shall elect whether to claim benefits under the insurance plan or statutory accident benefits under

section 268 of the Insurance Act .

Section 29 applies with respect to the election with necessary

modifications.

Second election

(3) If the worker or survivor elects to claim the statutory accident benefits and it is subsequently determined that he or she is not entitled to receive them, the worker or survivor may elect to claim benefits under the insurance plan.

Restriction

(4) If a worker would be entitled, in the absence of this Act, to statutory accident benefits for an injury, no payments shall be made,

(

a) under

section 43 (loss of earnings) once the worker reaches maximum medical recovery; or

(

b) under

section 46 (non-economic loss),

unless the worker confirms his or her election to claim benefits under the insurance plan.

Same

(5) Once the worker begins to receive payments described in subsection (4), he or she is not entitled to revoke the election to claim benefits under the insurance plan.

Restriction, death benefits

(6) If a worker's spouse or dependant child would be entitled, in the absence of this Act, to statutory accident benefits for the worker's death, no payments shall be made under subsection 48 (2) to the spouse or under subsection 48 (13) to the

child unless,

(

a) the spouse or child confirms his or her election to claim benefits under the insurance plan; or

(

b) no action has been brought by the spouse or child and the limitation period for bringing the action has expired.

Same

(7) Once the spouse or child begins to receive payments described in subsection (6), he or she is not entitled to revoke the election to claim benefits under the insurance plan.

No obligation to repay

(8) A person who receives benefits under the insurance plan and who subsequently receives statutory accident benefits is not entitled to any further benefits under the insurance plan. However, the person is not required to repay money received

under the insurance plan before he or she began to receive the statutory accident benefits.

Decisions re rights of action and liability

(1) A party to an action or an insurer from whom statutory accident benefits are claimed may apply to the Appeals Tribunal to determine,

(

a) whether, because of this Act, the right to commence an action is taken away;

(

b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(

c) whether the plaintiff is entitled to claim benefits under the insurance plan.

Same

(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).

Finality of decision

(3) A decision of the Appeals Tribunal under this

section is final and is not open to question or review in a court.

PART IV

HEALTH CARE

Definition

32. In this Part,

"health care" means,

(

a) professional services provided by a health care practitioner,

(

b) services provided by or at hospitals and health facilities,

(

c) drugs,

(

d) the services of an attendant,

(

e) modifications to a person's home and vehicle and other measures to facilitate independent living as in the Board's opinion are appropriate;

(

f) assistive devices and prostheses;

(

g) extraordinary transportation costs to obtain health care.

Entitlement to health care

(1) A worker entitled to benefits under the insurance plan is entitled to such health care as may be necessary,appropriate and sufficient as a result of his or her injury and is entitled to make the initial choice of health

professional for the purposes of this section.

Same

(2) The Board may provide a special surgical operation or special medical treatment for a worker if, in the opinion of the Board, doing so is the only means of avoiding substantial payments under the insurance plan. The cost of the operation or

treatment may be paid from the insurance fund or by the

Schedule 2 employer, as is appropriate.

Arrangements for health care

(3) The Board may arrange for the worker's health care or may approve arrangements for his or her health care. The Board shall pay for the worker's health care.

Same

(4) The Board may establish such fee schedules for health care as it considers appropriate.

Penalty for late billing

(5) If the Board does not receive a bill for health care within such time as the Board may specify, the Board may reduce the amount payable for the health care by such percentage as the Board considers an appropriate penalty.

Prohibition

(6) No health care practitioner shall request a worker to pay for health care or any related service provided under the insurance plan.

No right of action

(7) No action lies against the Board to obtain payment of an amount greater than is established in the applicable fee

schedule for health care provided to a worker. No action lies against a person other than the Board for payment for health

care provided to a worker.

Questions re health care

(8) The Board shall determine all questions concerning,

(

a) the necessity, appropriateness and sufficiency of health care provided to a worker or that may be provided to a worker; and

(

b) payment for health care provided to a worker.

Duty to co-operate

(1) A worker who claims benefits under the insurance plan shall co-operate in such health care measures as the Board considers appropriate.

Failure to comply

(2) If the worker fails to comply with subsection (1), the Board may reduce or suspend payments to the worker under the insurance plan while the non-compliance continues.

Board request for health examination

(1) Upon the request of the Board, a worker who claims or is receiving benefits under the insurance plan shall submit to a health examination by a health professional selected and paid for by the Board.

Failure to comply

(2) If the worker fails to comply with subsection (1) or obstructs the examination without reasonable cause or excuse, the Board may reduce or suspend payments to the worker under the insurance plan while the non-compliance or obstruction

continues.

Employer request for health examination

(1) Upon the request of his or her employer, a worker who claims benefits under the insurance plan shall submit to a health examination by a health professional selected and paid for by the employer.

Objection

(2) Despite subsection (1), the worker may object to undergoing the examination or to the nature and extent of the examination requested by the employer. The worker shall notify the employer of his or her objection.

Request to Board

(3) Within 14 days after receiving the worker's objection, the employer may request that the Board direct the worker to submit to the examination and, if necessary, that the Board determine the nature and extent of the examination.

Reports re health care

(1) Every health care practitioner who provides health care to a worker claiming benefits under the insurance plan or who is consulted with respect to his or her health care shall promptly give the Board such information

relating to the worker as the Board may require.

Same

(2) Every hospital or health facility that provides health care to a worker claiming benefits under the insurance plan shall promptly give the Board such information relating to the worker as the Board may require.

Report re functional abilities

(3) When requested to do so by an injured worker or the employer, a health professional treating the worker shall give the Board, the worker and the employer such information as may beprescribed concerning the worker's functional abilities. The

required information must be provided on the prescribed form.

Payment

(4) The Board shall pay the health care practitioner, hospital or health facility for providing the required information and shall fix the amount to be paid to him, her or it.

Transportation to hospital, etc.

(1) At the time an injury occurs, the injured worker's employer shall provide transportation for the worker (if the worker needs it) to a hospital or a physician located within a reasonable distance or to the worker's home.

The employer shall pay for the transportation

Failure to comply

(2) If the employer fails to comply with subsection (1), the Board may order the employer to pay for any transportation obtained by or on behalf of the worker or provided by the Board.

Repair to assistive devices

(1) The Board may pay to repair or replace a worker's assistive device or prosthesis if it is damaged as a result of an accident in the worker's employment.

Eligibility for benefits

(2) If the worker is unable to work because of the damage to his or her assistive device or prosthesis, the worker is entitled to benefits under the insurance plan as if the inability to work had been caused by a personal injury.

Allowance

(3) If the Board pays for an assistive device or prosthesis, the Board may upon request give the worker an annual allowance to repair or replace clothing that is worn or damaged because of it.

PART V

RETURN TO WORK

Duty to co-operate in return to work

(1) The employer of an injured worker shall co-operate in the early and safe return to work of the worker by,

(

a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery or disability;

(

b) attempting to identify and arrange suitable employment that is consistent with the worker's functional abilities and that, when possible, restores the worker's pre-injury earnings;

(

c) giving the Board such information as the Board may request concerning the worker's return to work; and

(

d) doing such other things as may be prescribed.

Same, worker

(2) The worker shall co-operate in his or her early and safe return to work by,

(

a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery or disability;

(

b) assisting the employer as may be required or requested to identify suitable employment for the worker that is consistent with his or her functional abilities and that, when possible, restores his or her pre-injury earnings;

(

c) giving the Board such information as the Board may request concerning the worker's return to work; and

(

d) doing such other things as may be prescribed.

Same, construction industry

(3) Employers engaged primarily in construction and workers who perform construction work shall co-operate in a worker's early and safe return to work and shall do so in accordance with such requirements as may be prescribed. Subsections

(1) and (2) do not apply with respect to those employers and workers.

Same, emergency workers

(4) If an emergency worker is injured, the worker's deemed employer is not required to comply with this section. The worker's actual employer, if any, is required to do so. However, the deemed employer is required to pay the costs of the actual

employer's compliance with this section.

Board assistance, etc.

(5) The Board 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.

Notice of dispute

(6) The employer or the worker shall notify the Board of any difficulty or dispute concerning their co-operation with each other in the worker's early and safe return to work.

Resolution of dispute

(7) The Board 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 such longer period as the Board may determine.

Application

(8) This

section applies beginning on the date indicated for the following employers and the workers regularly employed by them:

1. July 1, 1997 for employers who employ 500 or more employees.

2. January 1, 1998 for employers who employ at least 100 but not more than 499 employees.

3. July 1, 1998 for all other employers.

Transition, vocational rehabilitation

(9) Until this

section applies to an employer and the workers employed by the employer, subsections 53 (1) to (4) of the Workers' Compensation Act continue to apply with necessary modifications despite their repeal.

Obligation to re-employ

(1) The 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.

Exception

(2) This

section does not apply in respect of employers who regularly employ fewer than 20 workers or such classes of employers as may be prescribed.

Determinations re return to work

(3) The Board may determine the following matters on its own initiative or shall determine if the worker and the employer disagree about the fitness of the worker to return to work:

1. If the worker has not returned to work with the employer, the Board shall determine whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work.

2. If the Board has previously determined that the worker is medically able to perform suitable work, the Board shall determine whether the worker is medically able to perform the essential duties of the worker's pre-injuryemployment.

Obligation to re-employ

(4) When the worker is medically able to perform the essential duties of his or her pre-injury employment, the employer shall,

(

a) offer to re-employ the worker in the position that the worker held on the date of injury; or

(

b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of injury.

Same

(5) When the worker is medically able to perform suitable work (although he or she is unable to perform the essential duties of his or her pre-injury employment), the employer shall offer the worker the first opportunity to accept suitable

employment that may become available with the employer.

Duty to accommodate

(6) The employer shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

Duration of obligation

(7) The employer is obligated under this

section until the earliest of,

(

a) the second anniversary of the date of injury;

(

b) one year after the Board notifies the employer that the worker is medically able to perform the essential duties of the worker's pre-injury employment, if the Board does so; and

(

c) the date on which the worker reaches 65 years of age.

Construction industry requirements

(8) Employers engaged primarily in construction shall comply with such requirements as may be prescribed concerning the re-employment of workers who perform construction work. Subsections (4) to (7) do not apply with respect to those

workers.

Effect of termination

(9) If an employer re-employs a worker in accordance with this

section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer's obligations under this section. The employer may rebut

the presumption by showing that the termination of the worker's employment was not related to the injury.

Determination re compliance

(10) Upon the request of a worker or on its own initiative, the Board shall determine whether the employer has fulfilled the employer's obligations to the worker under this section.

Restriction

(11) The Board is not required to consider a request under subsection (10) by a worker who has been re-employed and whose employment is terminated within six months if the request is made more than three months after the date of termination of

employment.

Failure to comply

(12) If the Board decides that the employer has not fulfilled the employer's obligations to the worker, the Board may,

(

a) levy a penalty on the employer not exceeding the amount of the worker's net average earnings for the year preceding 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 43 (loss of earnings).

Same

(13) A penalty payable under subsection (12) is an amount owing to the Board.

Conflict with collective agreement

(14) If this

section conflicts with a collective agreement that is binding upon the employer and if the employer's obligations under this

section afford the worker greater re-employment terms than does the collective agreement, this

section

prevails over the collective agreement. However, this subsection does not operate to change the seniority provisions of the collective agreement.

Emergency workers

(15) If an emergency worker is injured, the worker's deemed employer is not required to comply with this section. The worker's actual employer, if any, is required to do so. However, the deemed employer is required to pay the costs of the

actual employer's compliance with subsection (6).

Labour market re-entry plan

(1) If any of the following circumstances exist, the Board shall decide whether a labour market re-entry plan for a worker is to be prepared:

1. If it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury or for another reason.

2. If 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.

3. If the worker's employer is not co-operating in the early and safe return to work of the worker.

Suitable employment or business

(2) In deciding whether a plan is to be prepared for the worker, the Board shall determine the suitable employment or business for the worker. The Board shall also determine the earnings from the suitable employment or business.

Preparation of plan

(3) The Board shall prepare a plan for a worker in such circumstances as the Board considers appropriate or it may arrange for another entity to prepare the plan.

Contents

(4) The plan must provide for such steps as may be required to enable the worker to re-enter the labour market and to reduce or eliminate his or her loss of earnings from the injury.

Consultation required

(5) The Board shall consult with the worker and may consult with the worker's health care practitioners and employer in preparing the plan.

Duty to co-operate

(6) The worker shall co-operate in the steps taken by the Board in connection with making a determination about whether a plan is to be prepared and in the implementation of the plan.

Implementation

(7) The Board shall pay for, and the worker shall be required to take, such steps as the plan provides for the purpose of enabling the worker to re-enter the labour market.

PART VI

COMPENSATION

Benefits

Payments for loss of earnings

(1) A worker who has a loss of earnings as a result of the injury is entitled to payments under this

section beginning when the loss of earnings begins. The payments continue until the earliest of,

(

a) the day on which the worker's loss of earnings ceases;

(

b) the day on which the worker reaches 65 years of age, if the worker was less than 63 years of age on the date of the injury;

(

c) two years after the date of the injury, if the worker was 63 years of age or older on the date of the injury;

(

d) the day on which the worker is no longer impaired as a result of the injury.

Amount

(2) The amount of the payments is 85 per cent of the difference between,

(

a) the worker's net average earnings before the injury; and

(

b) the net average earnings that he or she earns or is able to earn in suitable employment or business after the injury.

However, the minimum amount of the payments for full loss of earnings is the lesser of $15,266.71 or the worker's net average earnings before the injury.

Calculation of amount

(3) The calculation of the amount of the payments is subject to the following rules:

1. The amount of the net average earnings before the injury must be adjusted by the alternate indexing factor for each January 1 since the date of the injury.

2. If a labour market re-entry plan for the worker has been fully implemented, the Board shall deem the worker's earnings after the injury to be the earnings from the suitable employment or business for the worker as determined under subsection

42 (2).

3. The amount described by clause (2) (

b) must reflect any disability payments paid to the worker under the Canada Pension Plan or the Quebec Pension Plan in respect of the injury.

4. If the amount described by clause (2) (

b) is not zero and does not consist solely of disability payments in respect of the injury paid to the worker under the Canada Pension Plan or the Quebec Pension Plan, the amount of the payment must be

adjusted,

i. by multiplying, for each January 1 since the date of the injury, the amount of the payment by thesum of one plus the general indexing factor expressed as a fraction, and

ii. by dividing, for each January 1 since the date of the injury, the amount of the payment by the sum of one plus the alternate indexing factor expressed as a fraction.

Annual adjustment

(4) Every year on January 1, the Board shall adjust the amount of the payments otherwise payable to a worker using,

(

a) the alternate indexing factor, if the amount described by clause (2) (

b) is zero or consists solely of disability payments in respect of the injury paid to the worker under the Canada Pension Plan or the Quebec Pension Plan; or

(

b) the general indexing factor in any other case.

Failure to co-operate

(5) The Board may reduce or suspend payments to the worker during any period when the worker is not co-operating,

(

a) in health care measures;

(

b) in his or her safe and early return to work;

(

c) in the steps taken by the Board in connection with making a decision about whether a labour market re-entry plan is to be prepared for the worker; or

(

d) in the preparation and implementation of the labour market re-entry plan, if any.

Review re loss of earnings

(1) Every year or if a material change in circumstances occurs, the Board may review payments to a worker for loss of earnings and may confirm, vary or discontinue the payments.

Restriction

(2) The Board shall not review the payments more than 72 months after the date of the worker's injury. However, the Board may do so if, before the 72-month period expires, the worker has failed to notify the Board of a material change in

circumstances or has engaged in fraud or misrepresentation in connection with his or her claim for benefits under the insurance plan.

Same, certain older workers

(3) A worker may direct the Board not to review the payments for loss of earnings,

(

a) if the worker is 55 years old or more when the Board determines that he or she is entitled to payments for loss of earnings;

(

b) if he or she has reached maximum medical recovery; and

(

c) if a labour market re-entry plan for the worker has been fully implemented.

Same

(4) The direction must be given within 30 days after the later of,

(

a) the date on which the worker reaches maximum medical recovery; and

(

b) the date on which the worker's labour market re-entry plan is fully implemented.

Effect of direction

(5) If the worker gives the direction to the Board, he or she is entitled to receive the payments until he or she reaches 65 years of age. The direction is irrevocable.

Same

(6) If the worker gives the direction to the Board, the Board shall review payments to the worker only if, before the direction was given, the worker failed to notify the Board of a material change in circumstances or engaged in fraud or

misrepresentation in connection with his or her claim for benefits under the insurance plan.

Payments for loss of retirement income

(1) This

section applies with respect to a worker who is receiving payments under the insurance plan for loss of earnings. However, it does not apply with respect to a worker who was 64 years of age or older on the date of

the injury.

Amount set aside

(2) If a worker has received payments for loss of earnings for 12 continuous months, the Board shall set aside for him or her an amount equal to 5 per cent of every subsequent payment to him or her for loss of earnings. (Payments made under

section 64 to another person shall be deemed to have been made to the worker.)

Contribution by worker

(3) If amounts are being set aside for a worker under subsection (2), he or she may elect to contribute an amount equal to 5 per cent of every payment to him or her for loss of earnings. The election is irrevocable and must be in writing in a

form approved by the Board.

Same

(4) If the worker makes the election under subsection (3), the Board shall deduct the worker's contribution from each payment to him or her for loss of earnings.

Entitlement to benefit

(5) When the worker reaches 65 years of age, he or she is entitled to receive a retirement benefit under this section.

Payment scheme

(6) The worker may select the payment scheme for the benefit from among such schemes and subject to such restrictions as may be prescribed. However, if the amount of the benefit is less than $1,142.20 per year, the Board shall pay it as a lump

sum.

Survivor benefits

(7) When the worker dies, his or her survivors are entitled to the prescribed benefits in respect of amounts set aside for the worker under subsection (2). However, a survivor who receives benefits under

section 48 is not entitled to benefits

under this subsection.

Same

(8) The amount of the benefits under subsection (7) shall be based on the amounts set aside for the worker plus the accumulated investment income on the amounts.

Same, worker's contributions

(9) When the worker dies, his or her survivors are entitled to the prescribed benefits in respect of amounts contributed by the worker under subsection (3). If there are no survivors, the beneficiary designated by the worker or (if no

beneficiary is designated) the worker's estate is entitled to the benefits under this subsection.

Same

(10) The amount of the benefits under subsection (9) shall be based on the amounts contributed by the worker plus the accumulated investment income on the amounts.

Benefit fund

(11) The Board shall maintain a fund into which the amounts set aside under subsection (2) or contributed under subsection (3) shall be deposited.

Investment

(12) Subsection 94(4) applies with respect to the investment of money in the fund.

Compensation for non-economic loss

(1) If a worker's injury results in permanent impairment, the worker is entitled to compensation under this

section for hisor her non-economic loss.

Amount

(2) The amount of the compensation is calculated by multiplying the percentage of the worker's permanent impairment from the injury (as determined by the Board) and,

(a) $51,381.23 plus $1,142.20 for each year by which the worker's age at the time of the injury was less than 45; or

(b) $51,381.23 less $1,142.20 for each year by which the worker's age at the time of the injury was greater than 45.

However, the maximum amount payable under this subsection is $74,216.87 and the minimum amount is $28,545.58.

Payment

(3) If the amount of the compensation is greater than $11,422, it is payable as a monthly payment for the life of the worker. If it is $11,422 or less, it is payable as a lump sum.

Same

(4) Despite subsection (3), within 30 days of the worker being notified by the Board of the amount of compensation under this

section the worker may elect to receive in a lump sum the amount otherwise payable monthly. The election is

irrevocable.

Degree of permanent impairment

(1) If a worker suffers permanent impairment as a result of the injury, the Board shall determine the degree of his or her permanent impairment expressed as a percentage of total permanent impairment.

Same

(2) The determination must be made in accordance with the prescribed rating

schedule (or, if the

schedule does not provide for the impairment, the prescribed criteria) and,

(

a) having regard to medical assessments, if any, conducted under this section; and

(

b) having regard to the health information about the worker on file with the Board.

Exception

(3) If the worker has a permanent impairment and if the worker is unable to attend a medical assessment for health reasons, the Board may determine the degree of the worker's permanent impairment solely from the health information about the

worker on file with the Board.

Medical assessment

(4) The Board may require a worker to undergo a medical assessment after he or she reaches maximum medical recovery.

Selection of physician

(5) The worker shall select a physician from a roster maintained by the Board to perform the assessment. If the worker does not make the selection within 30 days after the Board gives the worker a copy of the roster, the Board shall select the

physician.

Same

(6) The physician who is selected to perform the assessment shall examine the worker and assess the extent of his or her permanent impairment. When performing the assessment, the physician shall consider any reports by the worker's treating

health professional.

Report

(7) The physician shall promptly give the Board a report on the assessment.

Same

(8) The Board shall give a copy of the report to the worker and to the employer who employed him or her on the date of the injury.

Request to reassess

(9) The Board may request a physician to perform a second assessment of the worker if the Board considers the initial assessment or the report on it to be incomplete or inaccurate.

Request for redetermination

(10) If the degree of the worker's permanent impairment is greater than zero and if the worker suffers a significant deterioration in his or her condition, the worker may request that the Board redetermine the degree of the permanent

impairment.

Restriction

(11) The worker is not entitled to request a redetermination until 12 months have elapsed since the most recent determination by the Board concerning the degree of his or her impairment.

Redetermination

(12) Subsections (1) to (9) apply with respect to the redetermination.

Payment for medical assessments

(13) The Board shall pay the physician for performing the medical assessment and providing the report and shall fix the amount to be paid to him or her.

Permanent impairment

(14) For the purposes of the insurance plan, a worker shall be deemed not to have a permanent impairment if the degree of his or her permanent impairment is determined to be zero.

Death benefits

(1) This

section applies when a worker's death results from an injury for which the worker would otherwise have been entitled to benefits under the insurance plan.

Spouse, lump sum payment

(2) A spouse who survives the worker is entitled to payment of a lump sum of $55,389.38,

(

a) plus $1,384.73 for each year by which the spouse's age on the date of the worker's death is less than 40; or

(

b) minus $1,384.73 for each year by which the spouse's age on the date of the worker's death is greater than 40.

However, the maximum amount payable under this subsection is $83,084.05 and the minimum amount is $27,694.68.

Periodic payment to spouse, no children

(3) If the deceased worker is survived by a spouse but no children, the spouse is entitled to be paid, by periodic payments, 40 per cent of the deceased worker's net average earnings,

(

a) plus one per cent of the net average earnings for each year by which the spouse's age on the date of the worker's death is greater than 40; or

(

b) minus one per cent of the net average earnings for each year by which the spouse's age on the date of the worker's death is less than 40.

However, the maximum percentage payable under this subsection is 60 per cent and the minimum percentage is 20 per cent. If the deceased worker's net average earnings are less than $15,266.71, they shall be deemed to be $15,266.71.

Periodic payment to spouse with children

(4) If the deceased worker is survived by a spouse and one or more children, the spouse is entitled to be paid, by periodic payments, 85 per cent of the deceased worker's net average earnings until the youngest child reaches 19 years of age.

However, the minimum amount payable under this subsection is $15,266.71 per year.

Exception

(5) Subsection (4) does not apply if the Board determines thatthe spouse and children do not reside together or that the children are not in the care, control or custody of the spouse. In those circumstances, the Board shall allocate the amount

otherwise payable under subsection (4) in a manner that the Board considers appropriate among the children, the spouse and any other person who has the care, control or custody of the children.

Same

(6) Subject to subsection (19), a spouse who ceases to be entitled to payments under subsection (4) becomes entitled to payments under subsection (3) as if the worker had died immediately after the day on which the youngest child reached 19

years of age.

Separated spouse

(7) If, immediately before his or her death, the deceased worker was required to make support or maintenance payments under a separation agreement or judicial order to a person who had been his or her spouse, the person is entitled to benefits

under this

section as a spouse.

Apportionment among spouses

(8) If there is more than one person entitled to payments under this

section as a spouse of the deceased worker, the following rules apply:

1. The total lump sum payments to the spouses must not exceed $83,084.05.

2. The total periodic payments to the spouses must not exceed 85 per cent of the deceased worker's net average earnings.

3. The Board shall apportion the payments among the spouses in accordance with,

i. the relative degree of financial and emotional dependance of each spouse on the deceased worker at the time of death,

ii. the period of separation, if any, of each spouse from the deceased worker at the time of death, and

iii. the size of the relative entitlements of those so entitled without reference to this subsection.

Labour market re-entry plan for spouse

(9) Upon request, the Board shall determine whether a labour market re-entry plan is to be prepared for the spouse. The request must be made within one year after the death of theworker.

Same

(10) Subsections 42 (2) to (7) apply with necessary modifications with respect to the labour market re-entry plan.

Same

(11) If the spouse fails to comply with subsection 42 (6) or (7), the Board may discontinue the preparation or implementation of the labour market re-entry plan.

Bereavement counselling

(12) Upon the request of the spouse, the Board may arrange for bereavement counselling. The request must be received within one year after the worker's death.

Lump sum payment to dependent children, no spouse

(13) If there is no spouse when the worker dies and if the deceased worker is survived by one or more dependent children, the dependent children as a class are entitled to payment of a lump sum of $55,389.38.

Periodic payment to dependent children, no spouse

(14) If there is no spouse or if the spouse dies and the deceased worker is survived by only one dependent child, the dependent child is entitled to be paid, by periodic payments, 30 per cent of the deceased worker's net average earnings.

However, if the deceased worker's net average earnings are less than $15,266.71, they shall be deemed to be $15,266.71.

Same

(15) If there is no spouse or if the spouse dies and the deceased worker is survived by more than one dependent child, the dependent children as a class are entitled to be paid, by periodic payments, 30 per cent of the deceased worker's net

average earnings plus 10 per cent of the net average earnings for each dependent child, except one child. However, if the deceased worker's net average earnings are less than $15,266.71 they shall be deemed to be $15,266.71 and the total amount

payable under this subsection shall not exceed 85 per cent of the net average earnings of the worker at the time of the accident.

Cessation of payments for children

(16) Periodic payments in respect of a child cease when the child reaches 19 years of age, except in the circumstances described in subsections (17) and (18).

Periodic payments, education of children

(17) If the Board is satisfied that it is advisable for a child over 19 years of age to continue his or her education, the child is entitled to be paid, by periodic payments, 10 per cent of the deceased worker's net average earnings until such

time asthe Board considers appropriate.

Periodic payments, incapable children

(18) Periodic payments in respect of a child who is physically or mentally incapable of earning wages continues until the the child is able to earn wages or until his or her death.

Maximum payable to spouse and children

(19) The total periodic payments to the spouse and children of the deceased worker must not exceed 85 per cent of the deceased worker's net average earnings.

Parent (not spouse)

(20) Despite subsections (14) and (15), the following rules apply if one or more children who are entitled to payments under this

section are being maintained by a parent who is not the spouse of the deceased worker or by another person who is

acting in the role of parent:

1. The parent or other person is entitled to receive the periodic payments to which a spouse of the deceased worker would be entitled under subsection (4).

2. In the circumstances described in paragraph 1, the payments to the parent or other person with respect to the children are in lieu of the periodic payments to which the children would otherwise be entitled under this section.

3. If there is more than one individual who is a parent or other person and if there is more than one child, the Board shall apportion the payments.

4. The total periodic payments under this subsection must not exceed 85 per cent of the deceased worker's net average earnings.

Right of appeal

(21) The parent or other person may file a notice of objection under

section 112 to a decision of the Board under subsection (20) or may appeal it to the Appeals Tribunal.

Dependants, no spouse or children

(22) If the deceased worker has no spouse or children but is survived by other dependants, the dependants are entitled to reasonable compensation proportionate to the loss occasioned to each of them. The following rules apply with respect to

that compensation:

1. The Board shall determine the amount of the compensation.

2. The total periodic payments to the dependants must not exceed 50 per cent of the deceased worker's net average earnings.

3. The periodic payments to a dependant are payable only as long as the worker could have been reasonably expected to continue to support the dependant if the deceased worker had not suffered injury.

Burial expenses

(23) The Board shall determine and pay the necessary expenses of burial or cremation of the deceased worker, paying at least $2,077.09. If, because of the circumstances of the case, the worker's body is transported a considerable distance for

burial or cremation, the Board may also pay the necessary transportation costs.

Deductions for CPP and QPP payments

(24) In calculating the compensation payable by way of periodic payments under this section, the Board shall have regard to any payments of survivor benefits for death caused by injury that are received under the Canada Pension Plan or the

Quebec Pension Plan in respect of the deceased worker.

Net average earnings

(25) For the purposes of this section, the deceased worker's net average earnings are to be determined as of the date of the injury to the worker.

Annual Adjustments

General indexing factor

(1) On January 1 every year, a general indexing factor for the year shall be calculated using the formula,

( 1/2 x A ) - 1

in which "A" is the amount of the percentage change in the Consumer Price Index for Canada for all items, for the 12-month period ending on October 31 of the previous year, as published by Statistics Canada. However, the indexing factor shall

be not less than 0 per cent and not greater than 4 per cent.

Application

(2) The general indexing factor applies with respect to the calculation of all amounts payable under this Part other than,

(

a) payments to workers whose loss of earnings is 100 per cent;

(

b) payments under

section 48 to survivors; and

(

c) payments to the other person referred to in subsection 48 (5) and to a parent or other person described in subsection 48 (20).

Alternate indexing factor

(1) On January 1 every year, an alternate indexing factor for the year shall be calculated. It is the amount of the percentage change in the Consumer Price Index for Canada for all items, for the 12-month period ending on

October 31 of the previous year, as published by Statistics Canada. However, the indexing factor shall not be less than 0 per cent.

Application

(2) The alternate indexing factor applies with respect to the calculation of payments,

(

a) to workers whose loss of earnings is 100 per cent;

(

b) under

section 48 to survivors; and

(

c) to the other person referred to in subsection 48 (5) and to a parent or other person described in subsection 48 (20).

Indexation of amounts in the Act

(1) On January 1 every year, the amounts set out in this Act (as adjusted on the preceding January 1) shall be adjusted by the amount of the general indexing factor described in subsection 49 (1).

Exceptions

(2) Subsection (1) does not apply with respect to the amounts set out in subsection 54 (1) or 152 (1).

Annual adjustment of payments

(1) On January 1 every year, the Board shall adjust average earnings by applying the general or alternate indexing factor, as the case may be, to the average earnings (as adjusted on the preceding January 1) and shall make

consequential changes to the amounts payable under this Part.

Increases prospective

(2) Nothing in this

section entitles a person to claim additional compensation for any period before the effective date of an adjustment or with respect to an award commuted or paid as a lump sum before the effective date.

Ancillary Matters

Average earnings

(1) The Board shall determine the amount of a worker's average earnings for the purposes of the insurance plan and indoing so shall take into account,

(

a) the rate per week at which the worker was remunerated by each of the employers for whom he or she worked at the time of the injury;

(

b) any pattern of employment that results in a variation in the worker's earnings; and

(

c) such other information as it considers appropriate.

Exception

(2) The average earnings do not include any sum paid to the worker for special expenses incurred because of the nature of the work.

Recalculation

(3) The Board shall recalculate the amount of a worker's average earnings if the Board determines that it would not be fair to continue to make payments under the insurance plan on the basis of the determination made under subsection (1). The

Board shall take into account such information as it considers appropriate when recalculating the amount.

Apprentices, etc.

(4) The Board shall consider such criteria as may be prescribed in determining the average earnings of an apprentice, learner or student.

Emergency workers

(5) The earnings of an emergency worker are the worker's earnings in his or her actual employment. If the worker has no such earnings, the Board shall fix the amount of the worker's earnings for the purposes of the insurance plan.

Average earnings, recurrence of loss of earnings

(6) When a worker becomes entitled to payments for a loss of earnings arising out of an accident in respect of which he or she previously received benefits under the insurance plan, the worker's average earnings (for the purpose of calculating

the amount payable for the loss of earnings) are the greater of,

(

a) his or her average earnings at the date of the accident; or

(

b) his or her average earnings when he or she was most recently employed.

Maximum amount of average earnings

(1) If a worker's average earnings exceed 175 per cent of the average industrial wage for Ontario for the year, his or her average earnings shall be deemed to be 175 per cent of theaverage industrial wage for Ontario for

the year.

Average industrial wage

(2) The calculation of the average industrial wage for Ontario for a calendar year is based upon the most recent published material that is available on July 1 of the preceding year with respect to the estimated average weekly earnings

industrial aggregate for Ontario as published by Statistics Canada.

Net average earnings

(1) The Board shall determine the amount of a worker's net average earnings by deducting from his or her earnings,

(

a) the probable income tax payable by the worker on his or her earnings;

(

b) the probable Canada Pension Plan or Quebec Pension Plan premiums payable by the worker; and

(

c) the probable employment insurance premiums payable by the worker.

Annual redetermination

(2) On January 1 every year, the Board shall redetermine the amount of a worker's net average earnings.

Schedule of net average earnings

(3) On January 1 every year, the Board shall establish a

schedule setting out a table of net average earnings determined in accordance with this section. The

schedule is conclusive and final.

Administration

Effect of payment, etc., from employer

(1) When determining the amount of any payments under the insurance plan to be made to a worker or his or her survivors, the Board shall have regard to any payment or benefit relating to the accident that is paid by the

worker's employer or provided wholly at the employer's expense.

Payment to employer

(2) If the payments to the worker or survivors are made from the insurance fund, the Board may pay to the employer from the fund any amount deducted under subsection (1) from the payments.

Worker's access to records

(1) If there is an issue in dispute, the Board shall, upon request, give a worker access to the file kept by the Board about his or her claim and shall give the worker a copy of the documents in the file. If the worker is

deceased, the Board shall give access and copies to the persons who may be entitledto payments under

section 48.

Same

(2) The Board shall give the same access to the file and copies of documents to a representative of a person entitled to the access and copies, if the representative has written authorization from the person.

Exception

(3) The Board shall not give a worker or his or her representative access to a document that contains health or other information that the Board believes would be harmful to the worker to see. Instead, the Board shall give a copy of the

document to the worker's treating health professional and shall advise the worker or representative that it has done so.

Employer's access to records

(1) If there is an issue in dispute, the Board shall, upon request, give a worker's employer access to such documents in the Board's file about the claim as the Board considers to be relevant to the issue and shall give the

employer a copy of those documents.

Same

(2) The Board shall give the same access and copies to a representative of the employer, if the representative has written authorization from the employer.

Notice to worker

(3) The Board shall notify the worker or his or her representative if the Board has given access and copies to the employer (or the employer's representative) and shall give a copy of the same documents to the worker.

Employer's access to health records

(1) Despite

section 58, before giving the employer access to a report or opinion of a health care practitioner about a worker, the Board shall notify the worker or other claimant that the Board proposes to do so and shall

give him or her an opportunity to object to the disclosure.

Objection

(2) If the worker or claimant notifies the Board within the time specified by the Board that he or she objects to the disclosure of the report or opinion, the Board shall consider the objection before deciding whether to disclose the report or

opinion.

Notice of decision

(3) The Board shall notify the worker, claimant and employer of its decision in the matter but shall not, in any event, disclose the report or opinion until after the later of,

(

a) the expiry of 21 days after giving notice of its decision; or

(

b) if the decision is appealed, the day on which the Appeals Tribunal finally disposes of the matter.

Appeal

(4) The worker, claimant or employer may appeal the Board's decision to the Appeals Tribunal and shall do so within 21 days after the Board gives notice of its decision.

Same

(5) If the Board or the Appeals Tribunal decides to disclose all or part of a report or opinion, the Board or the tribunal may impose such conditions on the employer's access as it considers appropriate.

Duty of confidentiality

(6) The employer and the employer's representatives shall not disclose any health information obtained from the Board except in a form calculated to prevent the information from being identified with a particular worker or case.

Payments to incapable persons, minors

(1) This

section applies if a person entitled to payments under the insurance plan is a minor or is a person that the Board considers to be incapable of managing his or her own affairs.

Payments

(2) Any payment to which the person is entitled may be made on his or her behalf to the person's parent, spouse, guardian or attorney or to the Public Guardian and Trustee or to such other person as the Board considers to be in the person's

best interest. The payment may be applied in a manner that the Board considers to be in the person's best interest.

Public Guardian and Trustee

(3) If payments are made to the Public Guardian and Trustee on the person's behalf, the Public Guardian and Trustee has a duty to receive and administer the payments for the person's benefit.

Frequency of payments

(1) Periodic payments under the insurance plan shall be made at such times as the Board may determine.

Commutation of payments

(2) Subject to subsection (3), the Board may commute payments to a worker under

section 43 (loss of earnings) and pay him or her a lump sum instead,

(

a) if the amount of the payments is 10 per cent or less of the worker's full loss of earnings; and

(

b) if the 72-month period for reviewing payments to the worker has expired or if the Board is not permitted to review the payments.

Election

(3) The worker referred to in subsection (2) may elect to receive periodic payments instead of the lump sum, and if he or she does so, the Board shall make the periodic payments. The election is irrevocable.

Advances on payments

(4) If a person is entitled to payments under the insurance plan, the Board may advance money to the person (or for his or her benefit) if the Board is of the opinion that the interest or pressing need of the person warrants it.

Agreements re payments

(1) An agreement between a

Schedule 2 employer and a worker or a worker's survivor,

(

a) that fixes the amount that the employer will pay to the worker or survivor under the insurance plan; or

(

b) in which the worker or survivor agrees to accept a specified amount in lieu of or in satisfaction of the payments to which he or she is entitled under the insurance plan,

is not binding upon the worker or survivor unless it is approved by the Board.

Exception

(2) Subsection (1) does not apply with respect to payments to a worker for a loss of earnings that lasts for less than four weeks. However, the Board may set aside such an agreement upon such terms as it considers just, either on its own

initiative or on the request of the worker.

Effect of provision

(3) Nothing in this

section authorizes the making of an agreement except with respect to an accident that has already happened and the payments to which the worker or survivor has become entitled because of it.

Benefits not assignable, etc.

63. Subject to

section 64, no benefits shall be assigned, garnished, charged or attached without the permission of the Board. They do not pass by operation of law except to a personal representative. No claim may be set off

against them.

Deduction for family support

(1) This

section applies if a person is entitled to payments under the insurance plan and his or her spouse (as defined in

Part III of the Family Law Act ), children or dependants are entitled to support or

maintenance under a court order.

Same

(2) The Board shall pay all or part of the amount owing to the person under the insurance plan,

(

a) in accordance with a garnishment notice issued by a court in Ontario or by an enforcement officer of the Family Responsibility Office established under the Family Responsibility and Support Arrears Enforcement Act, 1996 ; or

(

b) in accordance with a notice of a support deduction order served upon the Board by the Director of the Family Responsibility Office.

Limits and procedures

(3) Garnishment of periodic payments is subject to the limits and procedures set out in subsections 7 (1) and (5) of the Wages Act . Amounts payable under the insurance plan (other than amounts set aside under

section 45 (loss of

retirement income)) shall be deemed to be wages for the purposes of the Wages Act .

Same

(4) The deduction of payments under a notice of a support deduction order is subject to the limits and procedures set out in the Family Responsibility and Support Arrears Enforcement Act, 1996 .

Suspension of payments

65. If payments are suspended under the insurance plan, no compensation is payable in respect of the period of suspension.

PART VII

EMPLOYERS AND THEIR OBLIGATIONS

Participating Employers

Participating employers

66. The insurance plan applies to every

Schedule 1 employer and

Schedule 2 employer including the Crown and a permanent board or commission appointed by the Crown.

"Trade" of municipal corporations, etc.

67. The exercise by the following entities of their powers and the performance of their duties shall be deemed to be their trade or business for the purposes of the insurance plan:

1. A municipal corporation.

2. A public utilities commission or any other commission or any board (other than a hospital board) that manages a work or service owned by or operated for a municipal corporation.

3. A public library board.

4. The board of trustees of a police village.

5. A school board.

Training agencies and trainees

(1) In this section,

"placement host" means a person with whom a trainee is placed by a training agency to gain work skills and experience; ("agent d'accueil")

"training agency" means,

(

a) a person who is registered under the Private Vocational Schools Act to operate a private vocational school, or

(

b) a member of a prescribed class who provides vocational or other training. ("organisme de formation")

Election

(2) A training agency that places trainees with a placement host may elect to have the trainees considered to be workers of the training agency during their placement. However, only a training agency in an industry included in

Schedule 1 or 2

may make such an election.

Effect of election

(3) When the Board receives written notice of a training agency's election, the following rules apply with respect to each trainee placed with a placement host, other than a trainee who receives wages from the placement host:

1. The placement host shall be deemed not to be an employer of the trainee for the purposes of this Act. However, the placement host remains the employer of the trainee for the purposes of

section 27 (rights of action).

2. The training agency shall be deemed to be the employer of the trainee for the purposes of this Act.

3. The trainee shall be deemed to be a learner employed by the training age