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BILL NO. 11


Private Members Bill


6th Session, 56th General Assembly

Nova Scotia

46 Elizabeth II, 1997





An Act to Amend Chapter 10

of the Acts of 1994-95,

the Workers' Compensation Act






Robert L. Chisholm

Halifax Atlantic









Halifax

Printed by Queens Printer for Nova Scotia



Explanatory Notes





Clause 1 allows the inclusion of work-related stress as a compensable condition under the Workers' Compensation Act and adds emergency medical technicians and paramedics to the definition of "worker".












Clause 2 prevents the consideration of prior existing conditions in determining entitlements to benefits under the Act. This includes in the Act the concept in tort of the thin-skull rule.





Clause 3


(a) makes policy created by the Workers' Compensation Board subject to the approval of the Governor in Council;


(b) incorporates the establishment of permanent medical impairment guidelines based on the American Medical Association Guidelines; and


(c) provides that permanent-impairment benefits are paid out as a lump sum.




Clause 4 provides that permanent-impairment benefits are not considered in the calculation of earnings-replacement benefits.







Clauses 5 and 6 allow a worker to be compensated for any change in the worker's permanent-impairment rating and provide for periodic reviews and adjustments to the permanent-impairment rating every twenty-four months.









Clause 7 gives a worker the right to waive entitlement to compensation, but provides protections such as an alternative dispute-resolution process against workers waiving entitlement due to pressure exerted by an employer.




Clause 8


(a) ensures that policy written by the Workers' Compensation Board is approved by the Governor in Council;


(b) exempts the Workers' Compensation Appeals Tribunal from being bound by the policies of the Board; and


(c) creates a broad right of appeal to the Appeals Tribunal from the order of a hearing officer.










Clause 9 restores the benefit-of-doubt provision contained in the former Act.



Clause 10 removes reconsideration of a decision respecting compensation from the ambit of the client-services officer who made the original decision.





Clause 11 creates a right of appeal directly to a hearing officer from a decision made at the client-services officer level, extends the time allowed for the appeal and makes oral hearings mandatory where requested by one of the parties.



Clauses 12 to 15 revamp the appeal process at the Workers' Compensation Appeal Tribunal, extend the time for appeals and make oral hearings mandatory where requested by one of the parties.



















Clause 16 broadens the powers of the Appeals Tribunal by allowing it to resolve any appeal in the same fashion as the Board.



Clause 17 creates an absolute right of judicial appeal from a decision of the Appeals Tribunal.




An Act to Amend Chapter 10

of the Acts of 1994-95,

the Workers' Compensation Act



Be it enacted by the Governor and Assembly as follows:


1 Section 2 of Chapter 10 of the Acts of 1994-95, the Workers' Compensation Act, is amended by


(a) striking out "or" immediately after subclause (a)(ii);


(b) adding "or" immediately after subclause (a)(iii);


(c) striking out "but does not include stress other than an acute reaction to a traumatic event;" in the ninth and tenth lines of clause (a) and substituting the following subclause:


(iv) stress including, but not limited to, an acute reaction to a traumatic event;


(d) striking out "and" immediately after subclause (ae)(ix);


(e) adding "and" immediately after subclause (ae)(x); and


(f) adding immediately after subclause (ae)(x) the following subclause:


(xa) an emergency medical technician or paramedic working in emergency health services,


2 Subsection 10(5) of Chapter 10 is repealed and the following subsection substituted:


(5) Where a personal injury by accident referred to in subsection (1) results in loss of earnings or permanent impairment due in part to the injury and in part to causes other than the injury, compensation is payable for the proportion of the loss of earnings or permanent impairment that may reasonably be attributed to the injury.


3 (1) Subsection 34(3) of Chapter 10 is repealed and the following subsection substituted:


(3) The Board shall establish, with the approval of the Governor in Council, a permanent-impairment rating schedule based on the current American Medical Association Guidelines to be applied in calculating the award for a permanent impairment resulting from an injury.


(2) Subsection 34(5) of Chapter 10 is repealed and the following subsection substituted:


(5) Subject to Section 71, the permanent-impairment benefit established by subsection (4) is payable as a lump sum to the worker.


4 Subsections 37(2) and (3) of Chapter 10 are repealed and the following subsections substituted:


(2) The amount of any earnings-replacement benefit payable to a worker is an amount equal to seventy-five per cent of the worker's loss of earnings.


(3) The amount of any earnings-replacement benefit payable to a worker after the worker has received compensation pursuant to subsection (2) for a total of twenty-six weeks is an amount equal to eighty-five per cent of the worker's loss of earnings.


5 Clause 71(1)(b) of Chapter 10 is amended by striking out "of at least ten percentage points" in the first and second lines.


6 Clauses 73(1)(a) to (d) of Chapter 10 are repealed and the following clauses substituted:


(a) every twenty-four months, commencing in the twenty-fourth month after the date of the initial award of the benefit;


(b) after a review of the permanent-impairment rating of the worker pursuant to subsection 71(1) results in an adjustment of the permanent-impairment rating; and


(c) at any time, where the extended earnings-replacement benefit was based on a misrepresentation of fact.


7 Section 87 of Chapter 10 is repealed and the following Section substituted:


87 (1) No worker shall agree to waive any compensation the worker may become entitled to pursuant to this Part unless the waiver was made pursuant to an alternative dispute-resolution process as established pursuant to subsection (2) and the worker has received or waived the right to independent legal advice.


(2) The Board shall establish, with the approval of the Governor in Council, an alternative dispute-resolution process whereby workers may choose to mediate their claims, while preserving all appeal rights.


8 (1) Subsection 183(1) of Chapter 10 is amended by adding ", with the approval of the Governor in Council," immediately after "Directors" in the second line.


(2) Subsection 183(5) of Chapter 10 is repealed and the following subsection substituted:


(5) Every policy adopted by the Board of Directors pursuant to subsection (2) is binding on the Board itself, the Chair and every officer and employee of the Board.


(3) Subsection 183(7) of Chapter 10 is amended by striking out "and the Appeals Tribunal" in the second line.


(4) Subsection 183(8) of Chapter 10 is amended by


(a) striking out "Nova Scotia Court of Appeal" in the second and third lines and substituting "Appeals Tribunal"; and


(b) striking out "but there shall not be an appeal on any other question of law or fact" in the fifth and sixth lines.


9 Section 187 of Chapter 10 is amended by striking out "and the disputed possibilities are evenly balanced" in the fourth and fifth lines.


10 Subsection 196(1) of Chapter 10 is repealed and the following subsection substituted:


(1) The Board shall reconsider a decision made pursuant to Section 185 where, in the case of a decision respecting an assessment, the employer makes a written request to the Board, if the request is made within thirty days of being notified of the Board's decision.


11 (1) Subsection 197(1) of Chapter 10 is repealed and the following subsection substituted:


(1) Any employer may request that an appeal from a decision made pursuant to Section 196 be heard by a hearing officer and any worker or the worker's employer may request that an appeal from a decision made pursuant to Section 185 be heard by a hearing officer.


(2) Subsection 197(2) of Chapter 10 is amended by striking out "thirty" in the second line and substituting "ninety".


(3) Subsection 197(3) of Chapter 10 is amended by adding "no later than six months from the date the notice of appeal is filed pursuant to subsection (2)" immediately after "officer" in the second line.


(4) Subsection 197(4) of Chapter 10 is repealed and the following subsection substituted:


(4) The participants in an appeal pursuant to this Section are the employer and any other person who, in the opinion of the hearing officer, has a direct and immediate interest in the matter.


(5) Subsection 197(5) of Chapter 10 is amended by striking out "may" in the second line and substituting "shall".



12 Section 243 of Chapter 10 is repealed and the following Section substituted:


243 (1) Any person entitled to be a participant before a hearing officer may appeal the decision of the hearing officer.


(2) An application to appeal to the Appeals Tribunal shall be commenced by filing a written application, giving the grounds for appeal, with the Chief Appeal Commissioner within ninety days of the participant being notified of the decision of the hearing officer.


(3) The participants in an appeal made pursuant to this Section are


(a) in the case of a decision respecting compensation, the worker and the worker's employer;


(b) in the case of a decision respecting an assessment, the employer; and


(c) any other person who, in the opinion of the presiding appeal commissioner, has a direct and immediate interest in the matter.


13 (1) Subsection 245(2) of Chapter 10 is amended by striking out "may" in the first line and substituting "shall".


(2) Subsection 245(4) of Chapter 10 is repealed.


14 Subsection 246(1) of Chapter 10 is amended by adding "in so far as the policies of the Board are consistent with this Act or the regulations," immediately after "Board" in the third line.


15 Sections 247 to 251 of Chapter 10 are repealed.


16 Subsection 252(1) of Chapter 10 is amended by adding "and it may make any decision within the powers of the Board" immediately after "officer" in the second line.


17 (1) Subsections 256(1) to (4) of Chapter 10 are repealed and the following subsection substituted:


(1) Any participant in a final order, ruling or decision of the Appeals Tribunal may appeal, without leave within sixty days of the final order, ruling or decision, to the Nova Scotia Court of Appeal on any question as to the jurisdiction of the Appeals Tribunal and on any other question of law or fact.


(2) Subsection 256(5) of Chapter 10 is amended by striking out "Where leave to appeal has been granted, the participant to whom the leave has been granted" in the first and second lines and substituting "Where an appeal has been made, the participant doing so".


(3) Clause 256(6)(c) of Chapter 10 is amended by striking out "granting leave to appeal" in the first and second lines.


(4) Section 256 of Chapter 10 is further amended by adding immediately after subsection (6) the following subsection:


(7) No costs shall be awarded on an appeal.



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