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2002 Legislative Session: 3rd Session, 37th Parliament

THIRD READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

Certified correct as passed Third Reading on the 29th day of

October, 2002

Ian D. Izard, Law Clerk

HONOURABLE GRAHAM BRUCE

MINISTER OF SKILLS

DEVELOPMENT AND LABOUR

BILL 63 – 2002

WORKERS COMPENSATION AMENDMENT ACT (No. 2), 2002

HER MAJESTY, by and with the advice and consent of the Legislative Assembly

of the Province of British Columbia enacts as follows:

Part 1 – Review and Appeal Amendments

Section 1 of the Workers Compensation Act, R.S.B.C. 1996, c.

492, is amended

(

a) by repealing the definition of "review board" , and

(

b) by adding the following

definitions:

"appeal tribunal" means the Workers' Compensation Appeal Tribunal

established under

Part 4;

"chief review officer" means an officer of the Board who is appointed

under

section 96.2;

"reconsider" means to make a new decision in a matter previously decided

where the new decision confirms, varies or cancels the previous decision or

order;

"review officer" means an officer of the Board who is appointed under

section 96.2; .

Section 11 is repealed.

Section 24 is amended

(

a) in subsection (1) by striking out "This section" and

substituting "Despite

section 96 (1), this section" , and

(

b) in subsection (9) by striking out "review" in both

places and substituting "reconsideration" .

Section 37 is amended

(

a) by repealing subsection (2) and substituting the following:

(2) The Board may do one or more of the following:

(

a) create new classes in addition to those referred to in subsection

(1);

(

b) divide classes into subclasses and divide subclasses into further

subclasses;

(

c) consolidate or rearrange any existing classes and subclasses;

(

d) assign an employer, independent operator or industry to one or more

classes or subclasses;

(

e) withdraw from a class

(

i) an employer, independent operator or industry,

(ii) a part of the class, or

(iii) a subclass or part of a subclass,

and transfer it to another class or subclass or form it into a separate class

or subclass;

(

f) withdraw from a subclass

(

i) an employer, independent operator or industry,

(ii) a part of the subclass, or

(iii) another subclass or part of another subclass,

and transfer it to another class or subclass or form it into a separate class

or subclass. , and

(

b) in subsection (3) by adding "and subclasses" after

"classes" .

Section 55 is amended by repealing subsection (3.3) and substituting

the following:

(3.3) Despite

section 96 (1), if, since July 1, 1974, the Board considered

an application under the equivalent of this

section in respect of death or

disablement from occupational disease, the Board may reconsider that application,

but the Board must apply subsection (3.2) of this

section in that reconsideration.

6 Sections 58 (1) and (2), 59 to 62, 63 (2) to (4) and 64 to 66

are repealed.

7 Sections 58 (3) to (5) and 63 (1) are repealed.

Section 79 is repealed.

Section 81, as re-enacted by

section 27 of the Workers Compensation

Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(

a) in subsection (1) by adding "and" at the end of paragraph

(a), by striking out "and" at the end of paragraph (

b) and by

repealing paragraph (c), and

(

b) by repealing subsection (3) and substituting the following:

(3) Each director, other than the chair and president, holds office for

a term of up to 3 years, as set by the Lieutenant Governor in Council.

Section 82, as re-enacted by

section 27 of the Workers Compensation

Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(

a) by repealing subsection (2) (

a) and substituting the following:

(

a) subject to the Act, selecting the president and determining the president's

functions; , and

(

b) in subsection (3) (

c) by striking out ", the chief appeal

commissioner" .

Section 84.1 (4) (c), as enacted by

section 30 of the Workers

Compensation Amendment Act, 2002, S.B.C. 2002, c. 56, is amended by striking

out "the appeal commissioners and" .

12 Sections 85, 85.1 and 85.2 are repealed.

Section 86 (6) and (7) is repealed.

Section 87 (1) and (2) is amended by striking out ",

including the appeal division," .

Section 88 (2) is amended by striking out ", and the

review board has," .

16 Sections 89 to 93 are repealed.

Section 94 (2) (

b) and (3) (

b) is amended by striking out ",

review board or any other tribunal established by or under this Act" and

substituting "and the appeal tribunal" .

Section 95 (1.1) is amended

(

a) in paragraph (

c) by adding "tribunal," after "a

court," , and

(

b) in paragraph (

d) by striking out "this Part or

Part 3."

and substituting "this Part,

Part 3 or

Part 4."

Section 96, as amended by

section 37 of the Workers Compensation

Amendment Act, 2002, S.B.C. 2002, c. 56, is amended

(

a) in subsection (1) by striking out "The Board" and

substituting "Subject to sections 239 and 240, the Board" and

by striking out "an action must not be maintained or brought against

a director, officer, appeal commissioner or employee of the Board in respect

of

an act, omission or decision done or made in the belief that it was within

the jurisdiction of the Board;" and substituting "an action may

not be maintained or brought against the Board or a director, an officer, or

an employee of the Board in respect of any act, omission or decision that was

within the jurisdiction of the Board or that the Board, director, officer or

employee believed was within the jurisdiction of the Board;" , and

(

b) by repealing subsections (2) to (8) and substituting the following:

(2) Despite subsection (1), at any time, on its own initiative, or on application,

the Board may reopen a matter that has been previously decided by the Board

or an officer or employee of the Board under this

Part if, since the decision

was made in that matter,

(

a) there has been a significant change in a worker's medical condition

that the Board has previously decided was compensable, or

(

b) there has been a recurrence of a worker's injury.

(3) If the Board determines that the circumstances in subsection (2) justify

a change in a previous decision respecting compensation or rehabilitation,

the Board may make a new decision that varies the previous decision or order.

(4) Despite subsection (1), the Board may, on its own initiative, reconsider

a decision or order that the Board or an officer or employee of the Board

has made under this Part.

(5) Despite subsection (4), the Board may not reconsider a decision or order

(

a) more than 75 days have elapsed since that decision or order was made,

(

b) a review has been requested in respect of that decision or order under

section 96.2, or

(

c) an appeal has been filed in respect of that decision or order under

section 240.

(6) Despite subsection (1), the Board may review a decision or order made

by the Board or by an officer or employee of the Board under this Part but

only as specifically provided in sections 96.2 to 96.5.

(7) Despite subsection (1), the Board may at any time set aside any decision

or order made by it or by an officer or employee of the Board under this

Part

if that decision or order resulted from fraud or misrepresentation of the

facts or circumstances upon which the decision or order was based.

(8) The Board may establish practices and procedures for carrying out its

responsibilities under the Act, including specifying time periods within which

certain steps must be taken and the consequences for failing to comply with

those time periods.

(9) In circumstances it considers appropriate, the Board may recommend the

use of alternate dispute resolution processes to assist in the resolution

of matters under the Act.

Section 96.1 is repealed.

21 The following sections are added:

Request for reviews

96.2

(1) Subject to subsection (2), a person referred to in

section

96.3 may request a review officer to review the following in a specific case:

(

a) a Board decision respecting a compensation or rehabilitation matter

under

Part 1;

(

b) a Board decision under

Part 1 respecting an assessment or classification

matter, a monetary penalty or a payment under

section 47 (2), 54 (8) or

73 (1) by an employer to the Board of compensation paid to a worker;

(

c) a Board order, a refusal to make a Board order, a variation of a Board

order or a cancellation of a Board order respecting an occupational health

or safety matter under

Part 3.

(2) No review may be requested under subsection (1) respecting the following:

(

a) an assessment under

section 223 (1) (a);

(

b) a determination, an order, a refusal to make an order or a cancellation

of an order under

section 153;

(

c) an assignment of an employer or a subclass to a class or a subclass,

except the assignment of an employer to a class or a subclass that

(

i) has employers as members, and

(ii) does not have subclasses as members;

(

d) a withdrawal of an employer or a subclass from a class or subclass,

except a withdrawal of an employer from a class or subclass that

(

i) has employers as members, and

(ii) does not have subclasses as members;

(

e) the allocation of income, compensation payments, outlays, expenses,

assets, liabilities, surpluses or deficits to or from the account of a class

or subclass or to or from a reserve of the accident fund, except an allocation

as it relates to a specific employer or an independent operator respecting

(

i) the account of a class or subclass described in

section 10 (8),

(ii) the reserve described in

section 39 (1) (b), (

d) or (e);

(

f) the determination of an assessment rate for a class or subclass, except

the modification to the assessment rate determined for an employer on the

basis of the employer's own experience;

(

g) a decision to reopen or not to reopen a matter on an application under

section 96 (2).

(3) A request for a review must be filed within 90 days after the Board's

decision or order was made.

(4) On application, and where the chief review officer is satisfied that

(

a) special circumstances existed which precluded the filing of a request

for review within the time period required in subsection (3), and

(

b) an injustice would otherwise result,

the chief review officer may extend the time to file a request for review

even if the time to file has expired.

(5) Unless, on application, the chief review officer orders otherwise, the

filing of a request for a review under subsection (3) does not operate as

a stay or suspend the operation of the decision or order under review.

(6) As soon as practicable after a request for a review is filed, the Board

must provide the parties to the review with a copy of its records respecting

the matter under review.

(7) Subject to subsection (8), for the purposes of a specific review, if

the employer has ceased to be an employer within the meaning of

Part 1, the

chief review officer may deem an employers' adviser within the meaning of

section 94 or an organized group of employers to be the employer.

(8) An organized group of employers may be recognized by the chief review

officer for the purposes of subsection (7) only if the organized group includes

among its members employers in the subclass of industry to which the employer

who has ceased to be an employer belonged.

(9) The Board must appoint a chief review officer and one or more review

officers to conduct reviews under this section.

(10) The Labour Relations Code does not apply to a chief review officer

or a review officer.

Who may request review

96.3

(1) Any of the following persons who is directly affected by

a decision referred to in

section 96.2 (1) (

a) may request a review of that

decision:

(

a) a worker;

(

b) a deceased worker's dependant;

(

c) an employer.

(2) An employer or an independent operator who is directly affected by a

decision referred to in

section 96.2 (1) (

b) may request a review of that

decision.

(3) Any of the following persons who is directly affected by a decision

or order referred to in

section 96.2 (1) (

c) may request a review of that

decision or order:

(

a) a worker;

(

b) an employer within the meaning of

Part 3;

(

c) an owner as defined in

section 106;

(

d) a supplier as defined in

section 106;

(

e) a union as defined in

section 106;

(

f) a member of a deceased worker's family.

Conduct of review

96.4

(1) This

section applies to a review requested under

section

96.2.

(2) Subject to any Board practices and procedures for the conduct of a review,

a review officer may conduct a review as the officer considers appropriate

to the nature and circumstances of the decision or order being reviewed.

(3) If a party to the review does not make a submission within the time

required by any Board practices and procedures for the conduct of a review,

the review officer may

(

a) complete the review and make a decision on the basis of the information

before him or her, or

(

b) determine that the request for review is abandoned.

(4) A review officer may require an employer who is a party to a review

respecting a matter referred to in

section 96.2 (1) (

c) to post a notice in

a specified form and manner to bring the review to the attention of the employees

of the employer.

(5) On application or on the chief review officer's own initiative, the

chief review officer may suspend a review in a specific case in order to allow

a review officer to deal with related matters at the same time.

(6) After taking into account any applicable period of suspension under

subsection (5), the review officer must make a decision on a review

(

a) within 150 days after the Board receives the request for review, or

(

b) if a policy of the board of directors establishes a shorter time period

than that specified in paragraph (a), within that shorter time period.

(7) The chief review officer may extend the applicable time period in subsection

(6) (

a) or (

b) if the complexity of the proceedings in a review or the matter

under review makes the time period impractical.

(8) The review officer may make a decision

(

a) confirming, varying or cancelling the decision or order under review,

(

b) referring the decision or order under review back to the Board, with

or without directions.

(9) Subject to sections 96.5 and 239, a decision by the review officer under

subsection (8) is final and the Board must comply with that decision.

Reconsideration

96.5

(1) The chief review officer may direct a review officer to

reconsider a decision under

section 96.4 (8) in either of the following circumstances:

(

a) on the chief review officer's own initiative;

(

b) on application from a party to a completed review of a decision that

may not be appealed to the appeal tribunal, if the chief review officer

is satisfied that new evidence has become available or been discovered that

(

i) is substantial and material to the decision, and

(ii) did not exist at the time of the review or did exist at that time

but was not discovered and could not through the exercise of reasonable

diligence have been discovered.

(2) Each party to a completed review may apply for reconsideration of a

decision under subsection (1) (

b) on one occasion only.

(3) Despite subsection (1), a review officer must not reconsider a decision

(

a) more than 23 days after the decision was made, if a direction to reconsider

was given under subsection (1) (a), or

(

b) if the decision has been appealed under

section

Section 99 is repealed and the following substituted:

Board decision-making

(1) The Board may consider all questions of fact and law arising

in a case, but the Board is not bound by legal precedent.

(2) The Board must make its decision based upon the merits and justice of

the case, but in so doing the Board must apply a policy of the board of directors

that is applicable in that case.

(3) If the Board is making a decision respecting the compensation or rehabilitation

of a worker and the evidence supporting different findings on an issue is

evenly weighted in that case, the Board must resolve that issue in a manner

that favours the worker.

Section 101 is repealed.

Section 106 is amended by repealing the definition of "appeal

tribunal" .

Section 113 is amended

(

a) in subsection (1) by striking out "The Board" and

substituting "Subject to sections 239 and 240, the Board" ,

(

b) by repealing subsection (2) and substituting the following:

(2) Despite subsection (1), but subject to subsection (2.1) and sections

189 (1) and 190 (4), the Board may at any time, on its own initiative, make

a new decision or order varying or cancelling a previous decision or order

of the Board or of any officer or employee of the Board respecting any matter

that is within the jurisdiction of the Board under this Part.

(2.1) The Board may not make a decision or an order under subsection (2)

(

a) a review has been requested under

section 96.2 in respect of the previous

decision or order, or

(

b) an appeal has been filed under

section 240 in respect of the previous

decision or order.

(2.2) Despite subsection (1), the Board may review a decision or order made

by the Board or by an officer or employee of the Board under this Part but

only as specifically provided in sections 96.2 to 96.5.

(2.3) Despite subsection (1), the Board may at any time set aside any decision

or order made by it or by an officer or employee of the Board under this

Part

if that decision or order resulted from fraud or misrepresentation of the

facts or circumstances upon which the decision or order was based. ,

and

(

c) by repealing subsection (4) and substituting the following:

(4) An action may not be maintained or brought against the Board or a director,

an officer or an employee of the Board in respect of any act, omission or

decision

(

a) that was within the jurisdiction of the Board under this Part, or

(

b) that the Board, director, officer or employee believed was within

the jurisdiction of the Board under this Part.

Section 156 is amended

(

a) in subsection (1) by adding ",

Part 4" after "this

Part" wherever it appears,

(

b) in subsection (2) by adding "or

Part 4" after "this

Part" in both places, and

(

c) in subsection (5) by adding "or the appeal tribunal"

after "the Board" wherever it appears.

Section 189 is amended

(

a) in subsection (1) by striking out "If the board cancels

an order," and substituting "If the board varies or cancels an

order," and by striking out "of the cancellation" , and

(

b) in subsection (2) by striking out "cancellation" .

Section 196 is repealed and the following substituted:

Administrative penalties

(1) The Board may, by order, impose an administrative penalty

on an employer under this

section if it considers that

(

a) the employer has failed to take sufficient precautions for the prevention

of work related injuries or illnesses,

(

b) the employer has not complied with this Part, the regulations or an

applicable order, or

(

c) the employer's workplace or working conditions are not safe.

(2) An administrative penalty which is greater than $500 000 must not be

imposed under this section.

(3) An administrative penalty must not be imposed under this

section if

an employer exercised due diligence to prevent the circumstances described

in subsection (1).

(4) If an employer requests under

section 96.2 a review of a decision under

subsection (1), the employer must

(

a) post a copy of the request for review at the workplace to which the

administrative penalty relates,

(

b) provide a copy of the request for review to the joint committee or

worker health and safety representative, as applicable, and

(

c) if the workers at the workplace to which the administrative penalty

relates are represented by a union, provide a copy of the request for review

to the union.

(5) An employer who has been ordered to pay an administrative penalty under

this

section must pay the amount of the penalty to the Board for deposit into

the accident fund.

(6) If an administrative penalty under this

section is reduced or cancelled

by a Board decision, on a review under

section 96.2 or on an appeal to the

appeal tribunal under

Part 4, the Board must

(

a) refund the required amount to the employer out of the accident fund,

and

(

b) pay interest on that amount calculated in accordance with the policies

of the board of directors.

(7) If an administrative penalty is imposed on an employer under this section,

the employer must not be prosecuted under this Act in respect of the same

facts and circumstances upon which the Board based the administrative penalty.

Section 197 is repealed.

30 Divisions 13 and 14 of

Part 3 are repealed.

Section 221 is repealed and the following substituted:

Service of orders and other

documents

(1) A document that must be served on or sent to a person under

this Act may be

(

a) personally served on the person,

(

b) sent by mail to the person's last known address, or

(

c) transmitted electronically, by facsimile transmission or otherwise,

to the address or number requested by the person.

(2) If a document is sent by mail, the document is deemed to have been received

on the 8th day after it was mailed.

(3) If a document is transmitted electronically, the document is deemed

to have been received when the person transmitting the document receives an

electronic acknowledgement of the transmission.

Section 224 (2) is amended

(

a) by repealing paragraph (

j) and substituting the following:

(

j) prescribing any decisions or orders under this Act or the regulations

that may be appealed to the appeal tribunal under

Part 4, prescribing who

may appeal those decisions or orders and prescribing classes of decisions

for purposes of

section 239 (2) (a); , and

(

b) by adding the following paragraphs:

(k.1) respecting the awarding of costs by the appeal tribunal in an appeal

under

Part 4;

(k.2) prescribing qualifications of health professionals for purposes of

section 249;

(k.3) prescribing the circumstances under which the appeal tribunal may

order the Board to reimburse the expenses incurred by a party to an appeal

under

Part 4.

33 The following

Part is added:

Part 4 – Appeals

Division 1 – Appeal Tribunal

Definitions

231 In this Part:

"chair" means the chair of the appeal tribunal appointed under

section

232 (2) (a);

"extraordinary member" means a member of the appeal tribunal appointed

under

section 232 (2) (c);

"members of the appeal tribunal" means the chair, vice chairs and

extraordinary members appointed under

section 232 (2) and temporary substitute

members appointed under

section 232 (10);

"presiding member" means the member of the appeal tribunal chairing

a panel of the tribunal;

"vice chair" means a vice chair of the appeal tribunal appointed under

section 232 (2) (b).

Appeal tribunal established

(1) The Workers' Compensation Appeal Tribunal is established.

(2) The appeal tribunal consists of the following members:

(

a) the chair appointed by the Lieutenant Governor in Council;

(

b) one or more vice chairs appointed by the chair, after consultation

with the minister;

(

c) any extraordinary members appointed by the chair, after consultation

with the minister, with representation from individuals with experience

in employers' interests and from individuals with experience in workers'

interests.

(3) The chair holds office for a term of up to 5 years and may be reappointed

for one or more successive terms of up to 5 years each.

(4) The vice chairs hold office in their first term for 2 years and may

be reappointed for one or more successive terms of up to 4 years each.

(5) An extraordinary member holds office for the period of time required

to discharge his or her duties as a member of a panel appointed by the chair

under

section 238 (5) (

b) or (6) (b).

(6) Individuals are not eligible for appointment as vice chairs unless they

have successfully completed a competency-based selection process established

or approved by the chair.

(7) All members of the appeal tribunal must perform their duties and functions

in a fair, impartial and expeditious manner.

(8) Before beginning their duties, members of the appeal tribunal must take

an oath of office in the form and manner prescribed by the Lieutenant Governor

in Council.

(9) The Labour Relations Code and the Public Service Labour Relations

Act do not apply to members or officers of the appeal tribunal.

(10) Despite subsections (3) to (5), if a member of the appeal tribunal

is absent or incapacitated,

(

a) the Lieutenant Governor in Council, if the member is the chair, or

(

b) the chair, if the member is a vice chair or extraordinary member,

may appoint a temporary substitute member to act during the absence or incapacity.

End of appointment

(1) A member of the appeal tribunal may resign at any time by

giving written notice to the chair or, in the case of the chair, to the minister.

(2) A member of the appeal tribunal who resigns or whose appointment has

expired may continue to exercise his or her powers in an appeal on which that

member is sitting until a decision is made on that appeal.

Role of chair

(1) The chair is responsible for the general operation of the

appeal tribunal.

(2) Without restricting subsection (1), the chair is responsible for the

following:

(

a) appointing vice chairs and extraordinary members in accordance with

any procedures or requirements prescribed by the Lieutenant Governor in

Council;

(

b) establishing quality adjudication, performance and productivity standards

for members of the appeal tribunal and regularly evaluating the members

according to those standards;

(

c) developing a 3 year strategic plan and an annual operations plan for

the appeal tribunal;

(

d) establishing any rules, forms, practices and procedures required for

the efficient and cost effective conduct of appeals to the appeal tribunal,

including

(

i) establishing time periods within which steps must be taken,

(ii) requiring pre-hearing conferences, and

(iii) employing voluntary alternate dispute resolution processes;

(

e) making accessible to the public any rules, forms, practices and procedures

established under paragraph (d);

(

f) establishing administrative practices and procedures for the effective

operation of the appeal tribunal;

(

g) providing for public access to decisions of the appeal tribunal in

a manner that protects the privacy of the parties to the proceedings;

(

h) for the purposes of

section 249, establishing a list of health professionals;

(

i) presiding over meetings of the appeal tribunal;

(

j) establishing panels;

(

k) ordering the consideration of related matters in one hearing before

the appeal tribunal;

(

l) establishing a code of conduct, including conflict of interest provisions,

that governs the conduct of the members, officers, employees and contractors

of the appeal tribunal;

(

m) preparing the annual report of the appeal tribunal;

(

n) appointing officers of the appeal tribunal;

(

o) for the purpose of judicial proceedings, preparing a certificate attaching

the record of the appeal tribunal in the matter of a particular appeal or

decision of the tribunal, including any practices and procedures applied

by the tribunal.

(3) The chair may exercise any power and perform any duty or function of

the appeal tribunal or of a member of the appeal tribunal.

(4) Subject to

section 251 (9), the chair may delegate in writing to another

member of the appeal tribunal or to an officer of the appeal tribunal a power

or duty of the chair and may impose limitations or conditions on the exercise

of that power or performance of that duty.

(5) If the chair has delegated a power or duty of the chair and subsequently

ceases to hold office, the delegation continues in effect

(

a) so long as the delegate continues in office, or

(

b) until the delegation is revoked by a new chair.

(6) The chair may designate another member of the appeal tribunal to act

in the chair's place during the chair's temporary absence, and while acting

in the chair's place the designated member has the power and authority of

the chair.

(7) The chair must attend not fewer than 4 meetings of the board of directors

each calendar year to exchange information on matters of common interest and

importance to the workers' compensation system.

(8) On or before March 25 of each year, the chair must make a report to

the minister respecting the appeal tribunal's operations for the preceding

calendar year.

(9) The minister may require the annual report referred to in subsection

(8) to address specified matters and to be in a specified form.

Appeal tribunal staff

(1) Employees necessary to exercise the powers and perform the

duties of the appeal tribunal may be appointed under the Public Service

Act.

(2) The Pension (Public Service) Act and the Public Service Benefits

Plan Act apply to the employees of the appeal tribunal.

(3) Despite the Public Service Act, the appeal tribunal may engage

or retain consultants and contractors that the appeal tribunal considers necessary

to exercise its powers and perform its duties, and may determine the functions

and remuneration of those consultants and contractors.

Compensation and expenses

of members

(1) All members of the appeal tribunal must be compensated in

accordance with the regulation made under subsection (2).

(2) For the purposes of subsection (1), the minister may make a regulation

respecting the compensation of members of the appeal tribunal, including specifying

different rates of compensation for different classes of members.

(3) All members of the appeal tribunal must be reimbursed for reasonable

travelling and out of pocket expenses necessarily incurred by them in performing

their duties.

(4) The Pension (Public Service) Act and the Public Service Benefits

Plan Act apply to the members of the appeal tribunal.

(5) Subject to subsection (4), the minister may establish the conditions

of appointment of the members of the appeal tribunal.

Finances

(1) All money required for the administration and operation of

the appeal tribunal must be paid by the government, but on request of the

minister the Board must reimburse the government for all amounts so paid.

(2) On receipt of a request from the minister under subsection (1), the

Board must pay the amount requested to the Minister of Finance out of the

accident fund.

Panels

(1) All appeals to the appeal tribunal must be heard by panels

appointed under this section.

(2) The chair must establish the panels of the appeal tribunal.

(3) The chair may

(

a) terminate an appointment to a panel,

(

b) fill a vacancy on a panel, and

(

c) refer an appeal that is before one panel to another panel.

(4) Subject to subsections (5) and (6), panels must consist of the chair

sitting alone or a vice chair sitting alone.

(5) If the chair determines that a matter under appeal requires consideration

by a 3 member panel, the chair may appoint a panel with either of the following

memberships:

(

a) the chair or a vice chair, acting as presiding member, plus 2 additional

vice chairs;

(

b) the chair or a vice chair, acting as presiding member, plus one extraordinary

member with experience in employers' interests and one extraordinary member

with experience in workers' interests.

(6) If the chair determines that the matters in an appeal are of special

interest or significance to the workers' compensation system as a whole, the

chair may appoint a panel of up to 7 members with either of the following

memberships:

(

a) the chair or a vice chair, acting as presiding member, plus additional

vice chairs;

(

b) the chair or a vice chair, acting as presiding member, plus additional

vice chairs and extraordinary members.

(7) If a panel is constituted under subsection (6) (b),

(

a) there must be an equal number of extraordinary members appointed who

have experience in employers' interests and who have experience in workers'

interests, and

(

b) the extraordinary members must not constitute a majority of the membership

of the panel.

(8) A panel has the power and authority of the appeal tribunal in an appeal

assigned to the panel under this section.

(9) If a panel consists of more than one member, the decision of the majority

is the appeal tribunal's decision, but if there is no majority the decision

of the presiding member is the appeal tribunal's decision.

(10) Despite subsections (6) and (7), if a member of a panel constituted

under subsection (6) is unable to complete an appeal, the chair may direct

the remaining members of the panel to complete the appeal and make the decision

of the appeal tribunal

Division 2 – Appeal Rights

Appeal of review decisions

(1) Subject to subsection (2), a final decision made by a review

officer in a review under

section 96.2, including a decision declining to

conduct a review under that section, may be appealed to the appeal tribunal.

(2) The following decisions made by a review officer may not be appealed

to the appeal tribunal:

(

a) a decision in a prescribed class of decisions respecting the conduct

of a review;

(

b) a decision respecting matters referred to in

section 16;

(

c) a decision respecting the application under

section 23 (1) of rating

schedules compiled under

section 23 (2) where the specified percentage of

impairment has no range or has a range that does not exceed 5%;

(

d) a decision respecting commutations under

section 35;

(

e) a decision respecting an order under

Part 3, other than an order

(

i) relied upon to impose an administrative penalty under

section 196

(1),

(ii) imposing an administrative penalty under

section 196 (1), or

(iii) made under

section 195 to cancel or suspend a certificate.

Appeal of other Board decisions

(1) A determination, an order, a refusal to make an order or

a cancellation of an order made under

section 153 may be appealed to the appeal

tribunal.

(2) A decision to reopen or not to reopen a matter on an application under

section 96 (2) may be appealed to the appeal tribunal.

Who may appeal

(1) For the purposes of

section 239, any of the following persons

who is directly affected by a decision of the review officer in respect of

a matter referred to in

section 96.2 (1) (

a) may appeal that decision:

(

a) a worker;

(

b) a deceased worker's dependant;

(

c) an employer.

(2) For the purposes of

section 239, an employer or an independent operator

who is directly affected by a decision of the review officer in respect of

a matter referred to in

section 96.2 (1) (

b) may appeal that decision.

(3) For the purposes of

section 239, any of the following persons who is

directly affected by a decision of the review officer in respect of a matter

referred to in

section 96.2 (1) (

c) may appeal that decision:

(

a) a worker;

(

b) an employer within the meaning of

Part 3;

(

c) an owner as defined in

section 106;

(

d) a supplier as defined in

section 106;

(

e) a union as defined in

section 106;

(

f) a member of a deceased worker's family.

(4) For the purposes of

section 240 (1), any of the following persons who

is directly affected by a decision or an order referred to in

section 240

(1) may appeal that decision or order:

(

a) a worker;

(

b) an employer within the meaning of

Part 3;

(

c) a union as defined in

section 106.

(5) For the purposes of

section 240 (2), a worker or an employer who is

directly affected by a decision referred to in

section 240 (2) may appeal

that decision.

How to appeal

(1) A person referred to in

section 241 may appeal the decision

or order to the appeal tribunal by filing a notice of appeal with the tribunal.

(2) A notice of appeal must

(

a) be made in writing or in another form acceptable to the appeal tribunal,

(

b) identify the decision or order that is being appealed,

(

c) state why the decision or order is incorrect or why it should be changed,

and

(

d) state the outcome requested.

Time limit for appeal

(1) A notice of appeal respecting a decision referred to in

section

239 must be filed within 30 days after the decision being appealed was made.

(2) A notice of appeal respecting a decision referred to in

section 240

must be filed within 90 days after the decision or order being appealed was

made.

(3) On application, and where the chair is satisfied that

(

a) special circumstances existed which precluded the filing of a notice

of appeal within the time period required in subsection (1) or (2), and

(

b) an injustice would otherwise result,

the chair may extend the time to file a notice of appeal even if the time

to file has expired.

No stay of appealed decision

244 Unless the chair directs otherwise, the filing of a notice of

appeal under

section 242 does not operate as a stay or affect the operation

of the decision or order under appeal.

Division 3 – Appeal Procedure

Board records and policies

(1) The Board must provide the appeal tribunal with copies of

all current policies of the board of directors.

(2) As soon as practicable, the appeal tribunal must notify the Board of

an appeal filed under this Part.

(3) As soon as practicable after being given notice under subsection (2),

the Board must provide the appeal tribunal and the parties to the appeal with

a copy of its records respecting the matter under appeal.

(4) On request of the appeal tribunal and as soon as practicable, the Board

must advise the appeal tribunal of a policy of the board of directors that

is applicable to the matter under appeal.

(5) As soon as practicable after receiving advice under subsection (4),

the appeal tribunal must advise the parties to the appeal of a policy of the

board of directors that the Board has advised the appeal tribunal is applicable

to the matter under appeal.

Proceedings

(1) Subject to any rules, practices or procedures established

by the chair, the appeal tribunal may conduct an appeal in the manner it considers

necessary, including conducting hearings in writing or orally with the parties

present in person or by means of teleconference or videoconference facilities.

(2) Without restricting subsection (1), the appeal tribunal may do one or

more of the following:

(

a) receive evidence or information on oath, by affidavit or otherwise,

as it considers appropriate, whether or not the evidence is admissible in

a court;

(

b) receive new evidence;

(

c) inquire into the matter under appeal and consider all information

obtained;

(

d) request the Board to investigate further into a matter relating to

a specific appeal and report in writing to the appeal tribunal;

(

e) require the parties to the appeal to attend a pre-hearing conference

to discuss procedural and substantive issues relating to the conduct of

the appeal;

(

f) require the parties to the appeal to make a pre-hearing disclosure

of their evidence, including requiring the pre-hearing examination of a

party on oath or by affidavit;

(

g) recommend to the parties to the appeal that an alternate dispute resolution

process be used to assist in the resolution of a matter under appeal;

(

h) require an employer who is a party to an appeal respecting a matter

referred to in

section 96.2 (1) (

c) to post a notice in the specified form

and manner bringing the appeal to the attention of the employees of the

employer;

(

i) request any person or representative group to participate in an appeal

if the tribunal considers that this participation will assist the tribunal

to fully consider the merits of the appeal.

(3) If, in an appeal, the appeal tribunal considers there to be a matter

that should have been determined but that was not determined by the Board,

the appeal tribunal may refer that matter back to the Board for determination

and suspend the appeal proceedings until the Board provides the appeal tribunal

with that determination.

(4) If the appeal tribunal refers a matter back to the Board for determination

under subsection (3), the appeal tribunal must consider the Board's determination

in the context of the appeal and no review of that determination may be requested

under

section 96.2.

(5) If, in an appeal, a party fails to comply with the procedures of the

appeal tribunal including any time limits specified for taking any actions,

the tribunal may, after giving notice to that party,

(

a) continue with the proceedings and make a decision based upon the evidence

before it, or

(

b) determine that the appeal has been abandoned.

Witnesses

(1) On an appeal, the appeal tribunal has the same powers as

the Supreme Court

(

a) to compel the attendance of witnesses and examine them under oath,

and

(

b) to compel the production and inspection of books, papers, documents

and things.

(2) On an appeal, the appeal tribunal may cause depositions of witnesses

residing in or out of the Province to be taken before a person appointed by

the appeal tribunal in a similar manner to that prescribed by the Rules of

Court for the taking of like depositions in the Supreme Court before a commissioner.

(3) Despite subsections (1) and (2), an officer, an employee or a contractor

of the Board may only be compelled to give evidence or produce books, papers,

documents and things that

(

a) relate to the issues in a specific appeal, and

(

b) are necessary for the appeal tribunal to address those issues and

to make a decision in the appeal.

(4) Despite subsections (1) and (2), a member of the board of directors

or an officer, an employee or a contractor of the Board may not be compelled

to give evidence or produce books, papers, documents and things respecting

the development or adoption of the policies of the board of directors.

Deemed employer

(1) Subject to subsections (2) and (3), for the purposes of a

specific appeal, if the employer has ceased to be an employer within the meaning

Part 1, the appeal tribunal may deem an employers' adviser within the meaning

section 94 or an organized group of employers to be the employer.

(2) An organized group of employers may be recognized by the appeal tribunal

for the purposes of subsection (1) only if the organized group includes among

its members employers in the subclass of industry to which the employer who

has ceased to be an employer belonged.

(3) If, for the purposes of the review under

section 96.2 of a decision

respecting a specific matter, an organized group of employers or an employers'

adviser was deemed to be the employer, the group or employers' adviser, as

the case may be, is deemed to be the employer for the purposes of appealing

the review officer's decision in that matter and participating in the appeal.

Health professional assistance

(1) In this section, "health professional" means a medical

practitioner, a person entitled to practise medicine under the laws of another

jurisdiction or any other person with prescribed qualifications.

(2) The chair must establish a list of health professionals who may be retained

to provide independent assistance or advice on the request of the appeal tribunal

in an appeal.

(3) The list established by the chair under subsection (2) must not include

any person who is employed by the Board.

(4) After taking into account any fee

schedule established by the Board

for services provided by health professionals, the chair may determine the

under which a health professional may be retained by the appeal tribunal under

this section.

(5) Except with the written consent of the parties to the appeal, the appeal

tribunal must not retain a health professional to provide independent assistance

or advice in respect of a specific appeal if the health professional

(

a) has previously examined the worker whose claim is the subject of the

appeal,

(

b) is treating or has previously treated the worker or a member of the

worker's family,

(

c) has been consulted in the treatment of the worker,

(

d) has acted as a consultant to the employer,

(

e) is a partner of or practises with a health professional described

in this subsection, or

(

f) is otherwise in circumstances that could result in a reasonable apprehension

of bias.

(6) If the appeal tribunal determines that independent assistance or advice

from a health professional would assist in reaching a decision on an appeal,

the presiding member may retain a health professional from the list described

in subsection (2) to provide such assistance or advice.

(7) When a health professional is retained under subsection (6), the presiding

member must set the terms of reference for the advice, including requiring

a written report, setting any time periods for providing the report and specifying

any questions to be answered in the report.

(8) If the health professional retained under subsection (6) considers it

necessary to examine a worker in order to provide the independent assistance

or advice set out in the terms of reference under subsection (7), the health

professional may require the worker to attend for an examination by giving

the worker written notice.

(9) If the worker fails to present himself or herself for the examination

required under subsection (8) or obstructs that examination without reasonable

cause, the appeal tribunal may, after giving notice to the worker, do one

or more of the following:

(

a) direct the health professional to reschedule the examination of the

worker and give the worker notice of the rescheduled examination;

(

b) direct the health professional to provide a report without examining

the worker;

(

c) make a determination that the worker has abandoned the appeal.

(10) The appeal tribunal must give a copy of the health professional's written

report to the parties to the appeal.

(11) The parties to an appeal may make submissions to the appeal tribunal

in respect of the report provided to them under subsection (10).

(12) The appeal tribunal may suspend an appeal until a health professional's

report to be provided under this

section in respect of that appeal is received

by the appeal tribunal.

(13) Subsection (5) does not prohibit the appeal tribunal in an appeal

(

a) from requesting a health professional to provide it with medical evidence

or to clarify or interpret medical evidence previously provided by the health

professional, or

(

b) from compensating the health professional for the services described

in paragraph (a).

(14) Evidence or advice given under subsection (13) is not independent assistance

or advice within the meaning of this section.

Appeal tribunal decision-making

(1) The appeal tribunal may consider all questions of fact and

law arising in an appeal, but is not bound by legal precedent.

(2) The appeal tribunal must make its decision based on the merits and justice

of the case, but in so doing the appeal tribunal must apply a policy of the

board of directors that is applicable in that case.

(3) The appeal tribunal is bound by a decision of a panel appointed under

section 238 (6) unless

(

a) the specific circumstances of the matter under appeal are clearly

distinguishable from the circumstances addressed in the panel's decision,

(

b) subsequent to the panel's decision, a policy of the board of directors

relied upon in the panel's decision was repealed, replaced or revised.

(4) If the appeal tribunal is hearing an appeal respecting the compensation

of a worker and the evidence supporting different findings on an issue is

evenly weighted in that case, the appeal tribunal must resolve that issue

in a manner that favours the worker.

Application of policies

of board of directors

(1) The appeal tribunal may refuse to apply a policy of the board

of directors only if the policy is so patently unreasonable that it is not

capable of being supported by the Act and its regulations.

(2) If, in an appeal, the appeal tribunal considers that a policy of the

board of directors should not be applied, that issue must be referred to the

chair and the appeal proceedings must be suspended until the chair makes a

determination under subsection (4) or the board of directors makes a determination

under subsection (6), as the case may be.

(3) As soon as practicable after an issue is referred under subsection (2),

the chair must determine whether the policy should be applied.

(4) If the chair determines under subsection (3) that the policy should

be applied, the chair must refer the matter back to the appeal tribunal and

the tribunal is bound by that determination.

(5) If the chair determines under subsection (3) that the policy should

not be applied, the chair must

(

a) send a notice of this determination, including the chair's written

reasons, to the board of directors, and

(

b) suspend any other appeal proceedings that are pending before the appeal

tribunal and that the chair considers to be affected by the same policy

until the board of directors makes a determination under subsection (6).

(6) Within 90 days after receipt of a notice under subsection (5) (a), the

board of directors must review the policy and determine whether the appeal

tribunal may refuse to apply it under subsection (1).

(7) On a review under subsection (6), the board of directors must provide

the following with an opportunity to make written submissions:

(

a) the parties to the appeal referred to in subsection (2);

(

b) the parties to any appeals that were pending before the appeal tribunal

on the date the chair sent a notice under subsection (5) (

a) and that were

suspended under subsection (5) (b).

(8) After the board of directors makes a determination under subsection

(6), the board of directors must refer the matter back to the appeal tribunal,

and the appeal tribunal is bound by that determination.

(9) The chair must not make a general delegation of his or her authority

under subsection (3), (4) or (5), but if the chair believes there may be a

reasonable apprehension of bias the chair may delegate this authority to a

vice chair or to a panel of the appeal tribunal for the purposes of a specific

appeal.

Suspension of appeal proceedings

(1) On application of the appellant or on the chair's own initiative,

the chair may suspend appeal proceedings if a Board's decision respecting

a matter that is related to the appeal is pending.

(2) Within 30 days after the Board's decision referred to in subsection

(1) is made, the appellant may request the appeal tribunal to continue the

appeal proceedings and, on receipt of that request, the appeal tribunal must

continue the proceedings.

(3) If the appellant requests the appeal tribunal to continue the appeal

proceedings before the Board's decision referred to in subsection (1) is made,

the chair may

(

a) direct the appeal tribunal to continue the proceedings, or

(

b) continue the suspension until the Board's decision is made.

(4) On application, and where the chair is satisfied that

(

a) special circumstances existed which precluded the making of a request

within the time required in subsection (2), and

(

b) an injustice would otherwise result,

the chair may extend the time to make a request under subsection (2) even

if the time to make the request has expired.

Decision

(1) On an appeal, the appeal tribunal may confirm, vary or cancel

the appealed decision or order.

(2) Despite subsection (1), on an appeal under

section 240 (2), the appeal

tribunal may make one of the following decisions:

(

a) the matter that is the subject of the application under

section 96

(2) must be reopened;

(

b) the matter that is the subject of the application under

section 96

(2) may not be reopened.

(3) The appeal tribunal's final decision on an appeal must be made in writing

with reasons.

(4) Subject to any suspensions of the appeal proceedings permitted under

this Part, the appeal tribunal must make its final decision on an appeal

(

a) within 180 days after the appeal tribunal receives a copy of the records

provided under

section 245 (3) respecting the matter under appeal, or

(

b) if a shorter time period is prescribed by the Lieutenant Governor

in Council, within that shorter time period.

(5) The chair may extend the applicable time period under subsection (4)

(

a) the complexity of the proceedings in the appeal or of the matter under

appeal makes the time period impractical, or

(

b) the appellant requests a delay in the proceedings to submit new evidence

or make additional submissions.

(6) If the appellant has requested a delay for a reason referred to in subsection

(5) (b), the chair may extend the time for not more than 45 days.

(7) If the time is extended under subsection (6), the chair, on application,

must extend the time for an additional period not exceeding that granted under

subsection (6) to allow the other parties to the appeal to submit new evidence

or to make additional submissions.

(8) The chair may extend the time under this

section even if the applicable

time period under subsection (4) has expired.

Division 4 – General

Exclusive jurisdiction

254 The appeal tribunal has exclusive jurisdiction to inquire into,

hear and determine all those matters and questions of fact and law arising

or required to be determined under this Part, including the following:

(

a) all appeals from review officers' decisions as permitted under

section

239;

(

b) all appeals from Board decisions or orders as permitted under

section

240;

(

c) all matters that the appeal tribunal is requested to determine under

section 257;

(

d) all other matters for which the Lieutenant Governor in Council by

regulation permits an appeal to the appeal tribunal under this Part.

Appeal tribunal decision

or action final

(1) Any decision or action of the chair or the appeal tribunal

under this

Part is final and conclusive and is not open to question or review

in any court.

(2) Proceedings by or before the chair or appeal tribunal under this Part

must not

(

a) be restrained by injunction, prohibition or other process or proceeding

in any court, or

(

b) be removed by certiorari or otherwise into any court.

(3) The Board must comply with a final decision of the appeal tribunal made

in an appeal under this Part.

Reconsideration of appeal

decision

(1) This

section applies to a decision in

(

a) a completed appeal by the appeal tribunal under this Part or under

Part 2 of the Workers Compensation Amendment Act (No. 2), 2002, and

(

b) a completed appeal by the appeal division under a former enactment

or under

Part 2 of the Workers Compensation Amendment Act (No. 2), 2002.

(2) A party to a completed appeal may apply to the chair for reconsideration

of the decision in that appeal if new evidence has become available or been

discovered.

(3) On receipt of an application under subsection (2), the chair may refer

the decision to the appeal tribunal for reconsideration if the chair is satisfied

that the evidence referred to in the application

(

a) is substantial and material to the decision, and

(

b) did not exist at the time of the appeal hearing or did exist at that

time but was not discovered and could not through the exercise of reasonable

diligence have been discovered.

(4) Each party to a completed appeal may apply for reconsideration of a

decision under this

section on one occasion only.

Certification to court

(1) Where an action is commenced based on

(

a) a disability caused by occupational disease,

(

b) a personal injury, or

(

c) death,

the court or a party to the action may request the appeal tribunal to make

a determination under subsection (2) and to certify that determination to

the court.

(2) For the purposes of subsection (1), the appeal tribunal may determine

any matter that is relevant to the action and within the Board's jurisdiction

under this Act, including determining whether

(

a) a person was, at the time the cause of action arose, a worker within

the meaning of

Part 1,

(

b) the injury, disability or death of a worker arose out of, and in the

course of, the worker's employment,

(

c) an employer or the employer's servant or agent was, at the time the

cause of action arose, employed by another employer, or

(

d) an employer was, at the time the cause of action arose, engaged in

an industry within the meaning of

Part 1.

(3) This Part, except

section 253 (4), applies to proceedings under this

section as if the proceedings were an appeal under this Part.

Payment of compensation

(1) If, following a review under

section 96.2, a review officer's

decision requires payments to be made to a worker or a deceased worker's dependants,

the Board must

(

a) begin any periodic payments, and

(

b) pay any lump sum due under

section 17 (13).

(2) In the absence of fraud or misrepresentation, an amount paid under subsection

(1) to a worker or a deceased worker's dependants is not recoverable.

(3) If a review officer has made a decision described under subsection (1),

the Board must defer the payment of any compensation applicable to the time

period before that decision

(

a) for a period of 40 days following the review officer's decision, and

(

b) if the review officer's decision is appealed under

section 239, for

a further period until the appeal tribunal has made a final decision or

the appeal has been withdrawn, as the case may be.

(4) Subsection (3) applies despite

section 19.1, 22 (1), 23 (1) or (3),

29 (1) or 30 (1).

(5) If the appeal tribunal's decision on an appeal requires the payment

of compensation, all or part of which was deferred under subsection (3), interest

must be paid on the deferred amount of that compensation as specified in subsection

(6).

(6) Interest payable under subsection (5) must be calculated in accordance

with the policies of the board of directors and begins

(a) 41 days after the review officer made his or her decision, or

(

b) on an earlier day determined in accordance with the policies of the

board of directors.

Payment of interest

(1) The commencement of a review under

section 96.2 or of an

appeal under this Part respecting a matter described in

section 96.2 (1) (

b) does not relieve an employer from paying an amount in respect of a matter

that is the subject of the review or appeal.

(2) If the decision on a review or an appeal referred to in subsection

(1) requires the refund of an amount to an employer, interest calculated in accordance

with the policies of the board of directors must be paid to the employer on

that refunded amount.

Confidentiality obligation

(1) Members of the appeal tribunal and officers, employees and

contractors of the appeal tribunal must not disclose any information obtained

by them or of which they have been informed while performing their duties

and functions under this Part, except as may be necessary to discharge their

obligations under this Part.

(2) If information in a claim file or in any other material pertaining to

the claim of an injured or a disabled worker is disclosed for purposes of

this Part to a person other than the worker, that person must not disclose

the information except as permitted in circumstances described in

section

95 (1.1).

(3) Every person who violates subsection (1) or (2) commits an offence.

Part 2 – Transitional Provisions

Definitions

34 In this Part:

"amending Act" means this Act;

"appeal division" means the appeal division of the Board referred

to in

section 85 of the Act;

"appeal tribunal" means the Workers' Compensation Appeal Tribunal

established under

section 232 (1) of the Act, as enacted by the amending Act;

"repeal date" means the date

section 7 of the amending Act comes into

force;

"review board" means the Workers' Compensation Review Board referred

to in

section 89 of the Act;

"the Act" means the Workers Compensation Act ;

"transition date" means the date

section 232 (1) of the Act, as enacted

by the amending Act, comes into force.

Initial appeal tribunal

appointments

(1) Despite

section 232 (2) and (3) of the Act, as enacted by

the amending Act, after consultation with the first chair of the appeal tribunal,

the minister must appoint the first vice chairs of the appeal tribunal.

(2) Section 232 (6) of the Act, as enacted by the amending Act, does not

apply to an appointment made under subsection (1).

Medical review panel proceedings

(1) All proceedings pending under sections 58 (3) to (5) and 63

(1) of the Act on the repeal date are to be continued and completed.

(2) The rights and obligations of the parties to a proceeding referred to

in this

section must be determined in accordance with the law as it was on

the date

(

a) the party requested an examination under

section 58 (3) or (4) or

a determination under

section 63 (1), or

(

b) the board decided that a worker must be examined under

section 58

(5),

as the case may be.

(3) If, before the repeal date,

(

a) a person has not exercised a right under

section 58 (3) or (4) of

the Act, and

(

b) the time period within which that right must be exercised would not

have expired but for the repeal of that right on the repeal date,

that person may exercise that right before the time period referred to in

paragraph (

b) has expired.

Review proceedings

(1) If, before the transition date,

(

a) a person has not exercised a right under

section 201 of the Act to

apply for a review of a Board decision, and

(

b) the time period within which that right must be exercised would not

have expired but for the repeal of that right on the date the

section of

the amending Act repealing that right came into force,

that person may request a review of that decision under

section 96.2 before

the time period referred to in paragraph (

b) of this subsection has expired.

(2) If, on the transition date, a review is pending under

section 201 of

the Act, the review officer referred to in that

section must continue and

complete the proceeding, acting with the same power and authority that the

review officer had under the Act before the provisions of the Act granting

that power and authority were repealed by the amending Act.

(3) If, on or after the transition date and at the conclusion of a review

referred to in subsection (2) of this section, a person would have had a right

to appeal the review officer's decision to the appeal division under

section

207 of the Act but for the repeal of that right on the date the

section of

the amending Act repealing that right came into force, that person may appeal

the review officer's decision to the appeal tribunal within 30 days after

the decision is sent out.

Review board proceedings

(1) Subject to subsection (3), all proceedings pending before

the review board on the transition date are continued and must be completed

as proceedings pending before the appeal tribunal except that

section 253

(4) of the Act, as enacted by the amending Act, does not apply to those proceedings.

(2) In proceedings before the appeal tribunal under subsection (1), instead

of making a decision under

section 253 (1) of the Act, as enacted by the amending

Act, the appeal tribunal may refer a matter back to the Board, with or without

directions, and the Board's decision made under that referral may be reviewed

under

section 96.2 of the Act, as enacted by the amending Act.

(3) If, in a proceeding pending before the review board on the transition

date, the review board has

(

a) completed an oral hearing, or

(

b) received final written submissions and begun its deliberations,

the review board must continue and complete those proceedings, acting with

the same power and authority that the review board had under the Act before

the provisions of the Act granting that power and authority were repealed

by the amending Act.

(4) The appointments of the members of the review board who are sitting

on proceedings described in subsection (3) are continued until those proceedings

are completed.

Appeal division proceedings

(1) In this section, "proceedings" means

(

a) appeal proceedings,

(

b) proceedings for reconsideration of decisions,

(

c) proceedings in requests under

section 11 of the Act that were assigned

to the appeal division, and

(

d) proceedings under

section 28 (5) and (6) of the Crime Victim Assistance

Act.

(2) Subject to subsection (4) of this section, all proceedings pending before

the appeal division on the transition date are continued and must be completed

as proceedings pending before the appeal tribunal, except that

section 253

(4) of the Act, as enacted by the amending Act, does not apply to those proceedings.

(3) In proceedings before the appeal tribunal described in subsection

(2) of this section, instead of making a decision under

section 253 (1) of the

Act, as enacted by the amending Act, the appeal tribunal may refer a matter

to the Board, with or without directions, and the Board's decision made under

that referral may be reviewed under

section 96.2 of the Act, as enacted by

the amending Act.

(4) If, in a proceeding pending before the appeal division on the transition

date, the appeal division has

(

a) completed an oral hearing, or

(

b) received final written submissions and begun its deliberations,

the appeal division must continue and complete those proceedings, acting

with the same power and authority that the appeal division had under the Act

before the provisions of the Act granting that power and authority were repealed

by the amending Act.

(5) The appointments of the appeal commissioners who are sitting on proceedings

described in subsection (4) are continued until those proceedings are completed.

Unexercised appeal rights

to review board

(1) If, before the transition date,

(

a) a person has not exercised a right under the Act to appeal a decision

of the Board to the review board, and

(

b) the time period within which that right must be exercised would not

have expired but for the repeal of that right on the date the

section of

the amending Act repealing that right came into force,

that person may request a review of that decision under

section 96.2, as

enacted by the amending Act, before the time period referred to in paragraph

(

b) of this subsection has expired.

(2) Section 96.2 (4) applies to the time period referred to in subsection

(1) (

b) of this section.

Unexercised appeal rights

to appeal division

(1) If, before the transition date,

(

a) a person has not exercised a right under the Act

(

i) to appeal a decision of the Board to the appeal division, or

(ii) to appeal a finding of the review board to the appeal division,

and

(

b) the time period within which that right must be exercised would not

have expired but for the repeal of that right on the date the

section of

the amending Act repealing that right came into force,

that person may appeal the decision or finding to the appeal tribunal before

the time period referred to in paragraph (

b) of this subsection has expired.

(2) Section 243 (3) of the Act, as enacted by the amending Act, applies

to the time period referred to in subsection (1) (

b) and to the 30 day time

period referred to in subsection (3) of this section.

(3) If, on or after the transition date and at the conclusion of a proceeding

referred to in

section 38 (3) of the amending Act, a person would have had

a right to appeal the finding of the review board in that proceeding to the

appeal division under

section 91 (1) of the Act but for the repeal of that

right on the date the

section of the amending Act repealing that right came

into force, that person may appeal the review board's finding to the appeal

tribunal within 30 days after the finding is sent out.

(4) If a person appeals a decision or finding as permitted in this section,

the appeal is governed by

Part 4 of the Act, as enacted by the amending Act,

except that

section 253 (4) of the Act, as enacted by the amending Act, does

not apply.

Application of policies

to transitional proceedings

42 As may be necessary for the purposes of applying sections 250

(2) and 251 of the Act, as enacted by the amending Act, in proceedings under

sections 38 (1) and 39 (2) of the amending Act, published policies of the

governors are to be treated as policies of the board of directors.

Chair's authority

43 The chair of the appeal tribunal may establish any rules, forms,

practices and procedures required for the efficient and cost effective conduct

of proceedings before the appeal tribunal under this Part.

Power to make regulations

44 The Lieutenant Governor in Council may make regulations respecting

any matters that, in the opinion of the Lieutenant Governor in Council, are

insufficiently provided for, or not provided for, in

Part 2 of the amending

Act and that are necessary

(

a) for the orderly transition to the appeal tribunal of proceedings before

the review board and the appeal division, and

(

b) for the orderly completion of proceedings before the medical review

panel on the repeal date, including the delegation to the appeal tribunal

of all or any of the functions or responsibilities of the Board under sections

58 to 64 of the Act.

Consequential Amendments

Freedom of Information and Protection of Privacy Act

Schedule 2 of the Freedom of Information and Protection of

Privacy Act, R.S.B.C. 1996, c. 165, is amended

(

a) by striking out the following:

Public Body:

Workers' Compensation Review Board

Head:

Chair , and

(

b) by adding the following:

Public Body:

Workers' Compensation Appeal Tribunal

Head:

Chair .

Commencement

46 This Act comes into force by regulation of the Lieutenant Governor

in Council.

Copyright (c)

2002: Queen's Printer, Victoria, British Columbia, Canada