Workers' Compensation Act (amended)

BILL NO. 90

1st Session, 57th General Assembly
Nova Scotia
47 Elizabeth II, 1998



Government Bill



Workers' Compensation Act
(amended)

WITH CHANGES RECOMMENDED BY THE LAW AMENDMENTS COMMITTEE TO THE COMMITTEE OF THE WHOLE HOUSE ON BILLS

[… = text deleted]



The Honourable Russell MacKinnon
Minister of Labour



First Reading: November 26, 1998

Second Reading: December 1, 1998

Law Amendments Committee: March 25, 1999

Third Reading: April 13, 1999

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 Chapter 10 of the Acts of 1994-95, the Workers' Compensation Act, is amended by adding immediately after Section 10 the following Sections:

10A Notwithstanding this Act, Chapter 508 of the Revised Statutes, 1989, or any of its predecessors, the Interpretation Act or any other enactment,

(a) a personal injury by accident that occurred before February 1, 1996, is deemed never to have included chronic pain;

(b) a personal injury by accident that occurred before February 1, 1996, is deemed never to have created a vested right to receive compensation for chronic pain;

(c) no compensation is payable to a worker in connection with chronic pain, except as provided in this Section or in Sections 10D, 10F or 10G or, in the case of a worker injured on or after February 1, 1996, as provided in the Functional Restoration (Multi-Faceted Pain Services) Program Regulations contained in Order in Council 96-207 made on March 26, 1996, as amended from time to time.

10B In Sections 10C to 10G, "former Act" means Chapter 508 of the Revised Statutes.

10C (1) Subject to subsection (2), where a worker

(a) was injured before March 23, 1990;

(b) qualified for or was granted or was entitled to receive a permanent partial disability or a permanent total disability benefit under Section 43 or 45 of the former Act; and

(c) was granted an amended interim earnings loss benefit pursuant to the Interim Policy adopted by the Board on November 24, 1993, pursuant to the former Act and the worker's benefit was reduced on the coming into force of this Act,

the Board shall pay to the worker the benefit the worker was receiving or was entitled to receive pursuant to the Interim Policy adopted by the Board on November 24, 1993, pursuant to the former Act.

(2) Where a worker referred to in subsection (1) has an appeal pending before the Workers' Compensation Appeals Tribunal on the coming into force of this Section, the worker is entitled to the benefit referred to in subsection (1) only if the worker abandons the appeal before the Appeals Tribunal.

(3) For greater certainty, where a worker abandons an appeal pursuant to subsection (2), the appeal is null and void and no further appeal may be taken with respect to the matter.

10D (1) Subject to subsection (2), where a worker

(a) was injured between March 29, 1985, and March 23, 1990;

(b) qualified for or was granted or was entitled to receive a permanent partial disability or a permanent total disability benefit under Section 43 or 45 of the former Act;

(c) has chronic pain that is attributable in whole or in part to the injury referred to in clause (a); and

(d) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits or was entitled to receive such; or

(e) as of November 25, 1998, had a claim under appeal

(i) for reconsideration,

(ii) to a hearing officer,

(iii) to the Appeals Tribunal, or

(iv) to the Nova Scotia Court of Appeal,

or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired,

the Board shall increase the permanent medical impairment of the worker by five per cent and the appeal referred to in clause (e) is null and void.

(2) For greater certainty, a worker awarded a permanent medical impairment of zero per cent shall be paid the benefit referred to in subsection (1).

10E (1) Subject to subsection (2), where a worker

(a) was injured between March 29, 1985, and March 23, 1990;

(b) qualified for or was granted or was entitled to receive a permanent partial disability or a permanent total disability benefit under Section 43 or 45 of the former Act;

(c) never returned to full-time employment; and

(d) is receiving a Canada Pension Plan or Quebec Pension Plan disability pension,

the Board shall pay to the worker a lump sum payment of seven thousand five hundred dollars.

(2) Where a worker referred to in subsection (1) has an appeal pending before the Workers' Compensation Appeals Tribunal on the coming into force of this Section, the worker is entitled to the benefit referred to in subsection (1) only if the worker abandons the appeal before the Appeals Tribunal.

(3) For greater certainty, where a worker abandons an appeal pursuant to subsection (2), the appeal is null and void and no further appeal may be taken with respect to the matter.

(4) In this Section, "never returned to full-time employment" means a worker earned less than five thousand dollars in every year since the date of the worker's injury, exclusive of Canada Pension Plan benefits received by the worker, benefits received by the worker pursuant to this Act, any benefits received by the worker pursuant to a severance package and any other amounts prescribed by regulation.

10F Subject to subsection (2), where a worker

(a) was injured between March 23, 1990, and February 1, 1996;

(b) qualified for or was granted or was entitled to receive a permanent partial disability or a permanent total disability benefit under Section 43 or 45 of the former Act;

(c) has chronic pain that is attributable in whole or in part to injury referred to in clause (a);

(d) was granted an amended interim earnings loss benefit pursuant to the Interim Policy adopted by the Board on November 24, 1993, pursuant to the former Act and the worker's benefit was reduced on the coming into force of this Act; and

(e) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits or was entitled to receive such; or

(f) as of November 25, 1998, had a claim under appeal

(i) for reconsideration,

(ii) to a hearing officer,

(iii) to the Appeals Tribunal, or

(iv) to the Nova Scotia Court of Appeal,

or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired,

the Board shall reinstate the worker's previous amended interim earnings loss, without indexing, to be paid until the worker attains the age of sixty-five and the appeal referred to in clause (f) is null and void.

10G Subject to subsection (2), where a worker

(a) was injured between March 23, 1990, and February 1, 1996;

(b) has chronic pain that is attributable in whole or in part to injury referred to in clause (a); and

(c) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits or was entitled to receive such; or

(d) as of November 25, 1998, had a claim under appeal

(i) for reconsideration,

(ii) to a hearing officer,

(iii) to the Appeals Tribunal, or

(iv) to the Nova Scotia Court of Appeal,

or whose appeal period with respect to an appeal referred to in subclauses (i) to (iv) had not expired,

the Board shall pay to the worker a permanent medical impairment award of twenty-five per cent multiplied by fifty per cent, and an extended earnings replacement benefit, if payable pursuant to Sections 37 to 49, multiplied by fifty per cent and the appeal referred to in clause (d) is null and void.

10H (1) The Governor in Council may make regulations to implement the benefits referred to in Sections 10C to 10G.

(2) The exercise by the Governor in Council of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

10I (1) The benefits referred to in Sections 10C to 10G shall be paid effective January 1, 1999.

(2) For greater certainty, a worker referred to in Sections 10C to 10G is not entitled to a benefit pursuant to those Sections for a period of time prior to January 1, 1999.

2 (1) Subsection 21(1) of Chapter 10 is amended by

(a) striking out "six months" in the second and third lines of clause (c) and substituting "one week"; and

(b) striking out "may" in the tenth line and substituting "shall".

(2) Subsection 21(2) of Chapter 10 is repealed.

3 (1) Sections 30 and 31 of Chapter 10 are repealed and the following Sections substituted:

30 (1) Where a worker suffers a personal injury by accident arising out of and in the course of employment and the worker or a dependant of the worker has a cause of action arising in connection with the injury, the worker or the worker's dependants if entitled to compensation under this Part may elect to claim compensation or may elect to bring an action.

(2) A written election shall be received by the Board within ninety days of the date of the accident.

(3) Where no written election is received by the Board within ninety days, and a claim for compensation has been received by the Board, the Board is

(a) subrogated to the position of the worker or dependant for the whole or any outstanding part of the cause of action; and

(b) vested with all the rights of the worker or dependant to the cause of action.

(4) Where the Board is subrogated to a cause of action pursuant to subsection (3), an action may be taken against any person

(a) by the Board in the name of the worker, the worker's personal representative or a dependant of the worker, without the consent of the person in whose name the action was taken; or

(b) by the Board in its own name.

(5) Where a cause of action is pursued by a worker under subsection (1) and less is recovered and collected than the amount of the compensation to which the worker or the worker's dependants would be entitled under this Part, the worker or the worker's dependants are entitled to compensation under this Part to the extent of the amount of such difference.

(6) When the Board is subrogated to a cause of action the Board has full discretion to conduct the litigation as the Board deems appropriate.

(7) The Board may, at any time and on any terms, agree to a settlement in respect of a cause of action it is subrogated to pursuant to subsection (3).

(8) The cost of any medical aid rendered to a worker may be recovered in the action by the Board taking the cause of action referred to in subsection (3).

(9) A worker shall co-operate with the Board in respect of a cause of action referred to in subsection (3) and if, in the opinion of the Board, the worker has failed to co-operate with the Board, the Board may suspend, reduce or terminate compensation being paid to the worker pursuant to this Part.

(10) Where the Board is subrogated to a cause of action pursuant to subsection (3), any settlement of this cause of action by any party or parties, other than the Board, is of no force and effect unless made with the approval of the Board.

31 (1) Money recovered in an action or settlement of the action pursuant to subsection 30(3) shall be paid to the Board.

(2) Where any amount received by the Board is in excess of the cost, as determined by the Board, of the compensation payable to the worker by the Board and other expenditures made by the Board, the Board shall pay the excess amount to the worker, the worker's personal representative or the worker's dependant.

(3) Where the Board accepts an amount pursuant to subsection (1) in full settlement of the cause of action, the Board shall release the person paying the money, or the person on whose behalf the money is paid, from all liability in the cause of action.

(2) Subsection (1) applies to causes of action arising after the coming into force of this Section.

4 (1) Subsection 37(4) of Chapter 10 is repealed and the following subsection substituted:

(4) Notwithstanding subsection (1), the Board shall not pay compensation pursuant to subsection (1) until the worker who is injured is unable to continue to work with the employer for whom the worker was working when the injury occurred for a period of time during which the worker would have received remuneration from that employer equivalent to two fifths of the worker's net average weekly compensation.
(2) Subsections 37(7) and (8) of Chapter 10 are repealed.

5 (1) Section 60 of Chapter 10 is amended by adding immediately after subsection (3) the following subsections:

(3A) Notwithstanding subsection (3), a survivor pension payable pursuant to subsection (1) is payable for life where

(a) the worker was injured before February 1, 1996; and

(b) the worker died as a result of the injury on or after February 1, 1996.

(3B) Where, pursuant to this Section, a survivor pension is payable for life, Section 66 does not apply.

(2) Subsection (1) has effect on and after February 1, 1996.

6 Chapter 10 is amended by adding immediately after Section 60 the following Section:

60A (1) In this Section, "former Act" means Chapter 508 of the Revised Statutes, 1989, as it read from time to time before the coming into force of this Section.

(2) This Section applies to a dependent spouse whose survivor benefits under the former Act were, before October 1, 1992, discontinued on remarriage pursuant to Section 61 of the former Act.

(3) A dependent spouse may apply to the Board to have survivor benefits reinstated pursuant to this Section and the Board may reinstate the benefits.

(4) An application pursuant to subsection (3) shall be made in writing on or before January 1, 2001, and the Board shall not accept an application that is received after that date.

(5) No application may be made pursuant to subsection (3) by the estate of a dependent spouse.

(6) No benefits shall be reinstated pursuant to this Section for a period of time before October 1, 1992.

(7) The Board, with the approval of the Governor in Council, may make regulations

(a) respecting the calculation of benefits pursuant to this Section;

(b) respecting the manner of reinstating benefits pursuant to this Section;

(c) deemed necessary or advisable to carry out effectively the intent and purpose of this Section.

(8) The exercise by the Board of the authority contained in subsection (7) is regulations within the meaning of the Regulations Act.

7 (1) Clause 71(1)(b) of Chapter 10 is repealed.

(2) Subsection (1) has effect on and after February 6, 1995.

8 (1) Clause 73(1)(c) of Chapter 10 is amended by adding "of at least ten percentage points according to the schedule established pursuant to Section 34" immediately after "rating" in the third line.

(2) Section 73 of Chapter 10 is further amended by adding immediately after subsection (2) the following subsection:

(2A) Notwithstanding subsections (1) and (2), where a worker's permanent-impairment benefit is adjusted pursuant to Section 71, the Board may adjust the amount of compensation payable as an extended earnings-replacement benefit pursuant to this Section so that the adjusted permanent-impairment and extended earnings-replacement benefits total eighty-five per cent of the loss of earnings calculated pursuant to Section 38.

9 Chapter 10 is amended by adding immediately after Section 73 the following Section:

73A (1) Notwithstanding Section 73, where a worker who is receiving an extended earnings-replacement benefit suffers a loss of earnings that

(a) is temporary;

(b) results from the injury for which the extended earnings-replacement benefit is being paid; and

(c) was not taken into account in the most recent setting or review of the extended earnings-replacement benefit,

the Board may pay to the worker a temporary earnings-loss supplement.

(2) A temporary earnings-loss supplement shall be calculated in accordance with Sections 37 to 49.

10 Section 125 of Chapter 10 is amended by adding immediately after subsection (2) the following subsections:

(3) Notwithstanding anything contained in this Section, the Board shall, on or before January 1, 2000, implement a procedure for collecting assessments on a periodic basis based on actual rather than estimated payroll for the year.

(4) Notwithstanding subsection (3), an employer may choose to pay the annual assessment once a year, at a time and in the manner determined by the Board, rather than paying on a periodic basis pursuant to subsection (3).

(5) Notwithstanding anything contained in this Section, a notice indicating the rate of assessment for an employer for a year shall be sent to the employer no later than September 1st of the preceding year.

11 Subsection 134(3) of Chapter 10 is repealed and the following subsection substituted:

(3) Employers included in the schedule of self-insured employers are liable individually to pay an amount based on the cost of claims in respect of the workers of the self-insured employer plus the administrative costs incurred by the Board with respect to those claims plus the cost of any statutory obligations that apply to the self-insured employer.

12 Chapter 10 is further amended by adding immediately after Section 134 the following Sections:

134A (1) There is hereby established a Rating Review Commission composed of one person representing the Board and such number of persons, representing equally employer and employee groups, as determined by the Minister.

(2) The members of the Rating Review Commission shall be appointed by the Minister for such terms and on such conditions as determined by the Minister.

(3) The Minister shall designate one of the members of the Rating Review Commission to be the chair of the Commission.

(4) The Governor in Council shall prescribe the remuneration to be paid to members of the Rating Review Commission.

134B The Rating Review Commission shall review the system used to classify employers for assessment purposes and make recommendations to the Board of Directors with respect to the classification system.

13 Subsection 160(1) of Chapter 10 is amended by striking out "June 30th" in the third line and substituting "April 1st".

14 Chapter 10 is further amended by adding immediately after Section 160 the following Section:

160A (1) The Board shall, within ninety days after the end of each quarter, make a report to the Minister respecting its operations and transactions during the period covered by the report.

(2) The quarterly reports referred to in subsection (1) shall contain a statement of the Board's accounts and such other information and particulars as are prescribed by the Minister or the Governor in Council.

(3) The quarterly reports referred to in subsection (1) shall be laid before the House of Assembly

(a) immediately, if the House of Assembly is then sitting; or

(b) within fifteen days of the beginning of the next sitting of the House of Assembly, if the House of Assembly is not sitting.

15 Subsection 161(1) of Chapter 10 is amended by striking out "third" in the second line and substituting "seventh".

16 Section 177 of Chapter 10 is amended by adding "(1)" immediately after the Section number and by adding the following subsection:

(2) Where, at the request of the Board or the Governor in Council, the Auditor General performs an audit with respect to any matter relating to Part I or Part II of this Act, the expenses incurred by the Auditor General in conducting the audit shall be paid out of the Accident Fund.

17 (1) Section 183 of Chapter 10 is amended by adding immediately after subsection (5) the following subsection:

(5A) Notwithstanding subsection (5), a policy adopted by the Board is only binding on the Appeals Tribunal where the policy is consistent with this Part or the regulations.
(2) Section 183 of Chapter 10 is further amended by adding immediately after subsection (6) the following subsection:
(6A) Notwithstanding subsection (6), a policy of the Board of Directors may only be made retroactive where the policy benefits a worker.
(3) Subsection 183(7) of Chapter 10 is amended by striking out "any of them" in the fourth line and substituting "the Chair, an officer or an employee of the Board".

18 Subsection 184(5) of Chapter 10 is repealed.

19 Chapter 10 is further amended by adding immediately after Section 184 the following Section:

184A Notwithstanding the Regulations Act or anything contained in this Part, a regulation made pursuant to this Part may be made retroactive to any date where the regulation benefits a worker.

20 Clause 188(b) of Chapter 10 is repealed.

21 Subsection 193(3) of Chapter 10 is amended by

(a) repealing clause (a); and

(b) striking out "reconsideration or" in the last line.

22 Section 196 of Chapter 10 is repealed.

23 (1) Subsection 197(1) of Chapter 10 is amended by striking out "196" in the third line and substituting "185".

(2) Subsection 197(2) of Chapter 10 is amended by striking out "196" in the last line and substituting "185".

(3) Section 197 of Chapter 10 is further amended by adding immediately after subsection (7) the following subsection:

(8) Subject to subsection (7), a hearing officer shall render a decision on an appeal within sixty days of the completion of the hearing.

24 (1) Clause 204(1)(b) of Chapter 10 is amended by adding "or Chapter 508 of the Revised Statutes, 1989" immediately after "Act".

(2) Subsection 204(4) of Chapter 10 is amended by striking out "for the Board's or the Tribunal's consideration" in the last line and substituting "and the Board or the Appeals Tribunal, as the case may be, are bound to follow the opinion of the panel".

25 (1) Section 228 of Chapter 10 is amended by adding immediately after subsection (4) the following subsection:

(4A) For the purpose of clause (4)(a), the date of recalculation is deemed to be and always to have been February 1, 1996, regardless of when the recalculation is made.
(2) Subsection (1) has effect on and after February 6, 1995.

…

26 (1) Subsection 238(3) of Chapter 10 is amended by adding immediately after clause (a) the following clause:

(aa) one member to serve as Deputy Chief Appeal Commissioner;
(2) Subsection 238(4) of Chapter 10 is amended by adding "and the Deputy Chief Appeal Commissioner" immediately after "Commissioner" in the first line.

(3) Subsection 238(6) of Chapter 10 is amended by adding "and the Deputy Chief Appeal Commissioner" immediately after "Commissioner" in the second line.

27 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, within thirty days of the participant being notified of the decision of the hearing officer, appeal to the Appeals Tribunal.

(2) The Appeals Tribunal shall

(a) notify the Board that an appeal has been filed; and

(b) provide the Board with a list of the issues raised by the appeal.

28 Section 246 of Chapter 10 is amended by adding immediately after subsection (2) the following subsections:
(3) Subject to Section 247 and 251, the Appeals Tribunal shall decide an appeal within sixty days of the commencement of the appeal.

(4) Notwithstanding anything contained in this Act,

(a) a worker may request a stay of the appeal before the Appeals Tribunal for a period of up to one year, or such longer period as agreed to by the worker and the Appeals Tribunal, for the purpose of acquiring additional medical evidence; or

(b) the Board may request a stay of the appeal before the Appeals Tribunal for a period of up to one year for the purpose of acquiring additional medical evidence.

(5) Where the Board requests a stay pursuant to clause 4(b), the Board shall continue to pay to the worker, during the period of the stay, any benefits the worker was receiving at the time of the request for the stay.

29 (1) Subsection 251(1) of Chapter 10 is amended by adding "or the disposition of the appeal" immediately after "evidence" in the last line.

(2) Subsection 251(2) of Chapter 10 is amended by striking out ", if leave to appeal is granted," in the fourth line.

30 … Section 252 of Chapter 10 is … amended by adding immediately after subsection (2) the following subsection:

(3) Notwithstanding subsection (2), the Appeals Tribunal may correct a typographical or clerical error in a decision made by the Appeals Tribunal.

31 (1) Chapter 10 is amended by adding immediately after Section 255 the following Section:

255A (1) Notwithstanding Section 87, the Appeals Tribunal may, with the approval of the Governor in Council, make any regulations required to establish and implement an alternative dispute-resolution procedure to deal with appeals arising out of injuries that occurred before February 1, 1996.

(2) The exercise by the Appeals Tribunal of the authority contained in subsection (1) is regulations within the meaning of the Regulations Act.

(2) Subsection (1) has effect on and after February 6, 1995.

32 Subsection 256(1) of Chapter 10 is amended by striking out "but on no other question of law or fact" in the fourth and fifth lines and substituting "or on any question of law but on no question of fact".

33 Subsection 257(1) of Chapter 10 is amended by adding "within ninety days of the fiscal year end of the Appeals Tribunal" immediately after "Minister" in the second line.

34 Chapter 10 is amended by adding immediately after Section 258 the following heading and Section:

PART IIA

258A (1) In this Section, "outstanding appeal" means an appeal before the Appeals Tribunal that was commenced on or before the coming into force of this Section under the former Act or this Act and for which a final decision has not been rendered by the Appeals Tribunal on the coming into force of this Section.

(2) The Appeals Tribunal shall render a final decision on all outstanding appeals within one year of the coming into force of this Section.

35 Section 260 of Chapter 10 is amended by adding "(1)" immediately after the Section number and by adding the following subsection:

(2) The Program shall be administered by the Nova Scotia Legal Aid Commission established pursuant to the Legal Aid Act.

36 Chapter 10 is further amended by adding immediately after Section 260 the following Section:

260A The Minister of Justice is responsible for the supervision and management of this Part.

37 Subclause 261(b)(ii) of Chapter 10 is amended by adding "of Justice" immediately after "Minister".

38 Subsection 262(1) of Chapter 10 is amended by adding "of Justice" immediately after "Minister" in the second line.

39 Chapter 10 is further amended by adding immediately after Section 263 the following Section:

263A (1) Notwithstanding anything contained in this Part, a worker may hire a lawyer of their choice, to be paid for through the Program, where an adviser is unable to meet the worker in the county in which the worker is resident to discuss and deal with the worker's claim for compensation within seven days of the worker's request for a meeting.

(2) The fees and disbursements paid through the Program pursuant to subsection (1) shall not exceed twelve hundred dollars per claim.

40 Subsection 267(1) of Chapter 10 is amended by adding "of Justice" immediately after "Minister" in the fourth line.

41 Section 268 of Chapter 10 is amended by adding "of Justice" immediately after "Minister" in the third line.

42 Clause 270(2)(b) of Chapter 10 is repealed.

43 Section 272 of Chapter 10 is amended by adding "of Justice" immediately after "Minister" in the first and in the second lines.

44 Sections 1, 4, 5, 6, 9 and 35 to 43 come into force on such day as the Governor in Council orders and declares by proclamation.

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