BILL NO. 90

(as amended)

1st Session, 57th General Assembly
Nova Scotia
47-48 Elizabeth II, 1998-99

Government Bill

Workers' Compensation Act
(amended)

CHAPTER 1 OF THE ACTS OF 1999

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 (WITH COMMITTEE AMENDMENTS)

Royal Assent: April 16, 1999

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 In this Act, "chronic pain" means pain

(a) continuing beyond the normal recovery time for the type of personal injury that precipitated, triggered or otherwise predated the pain; or

(b) disproportionate to the type of personal injury that precipitated, triggered or otherwise predated the pain,

and includes chronic pain syndrome, fibromyalgia, myofascial pain syndrome, and all other like or related conditions, but does not include pain supported by significant, objective, physical findings at the site of the injury which indicate that the injury has not healed.

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

(a) except for the purpose of Section 28, a personal injury by accident that occurred on or after March 23, 1990, and 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 Section 10E 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 and, for greater certainty, those regulations are deemed to have been validly made pursuant to this Act and to have been in full force and effect on and after February 1, 1996.

10C In Sections 10D and 10E, "former Act" means Chapter 508 of the Revised Statutes.

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

(a) was injured before March 23, 1990;

(b) was granted a permanent partial disability or a permanent total disability benefit under Section 43 or 45 of the former Act as a result of the injury referred to in clause (a); and

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

the Board shall pay to the worker the benefit the worker was receiving pursuant to the Amended Interim Earnings Loss Policy adopted by the Board on November 24, 1993, pursuant to the former Act and, for greater certainty, this benefit is in substitution for any permanent partial disability or permanent total disability the worker was receiving with respect to the claim on which the amended interim earnings loss benefit was paid where it is a greater benefit on the coming into force of this Section.

(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) For greater certainty, the benefit referred to in subsection (1) shall be paid to the worker until the worker attains the age of sixty-five years.

(5) For the purpose of this Section, an appeal does not include an appeal seeking medical aid.

10E Where a worker

(a) was injured on or after March 23, 1990, and before February 1, 1996;

(b) has chronic pain that commenced following the injury referred to in clause (a); and

(c) as of November 25, 1998, was in receipt of temporary earnings-replacement benefits; 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-impairment benefit based on 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 any appeal referred to in clause (d) is null and void regardless of the issue or issues on appeal.

10F A decision of the Appeals Tribunal on a matter referred to in Section 10E is not subject to appeal, review or challenge in any court.

10G A worker who is entitled to receive a benefit pursuant to Section 10E may also be entitled to receive medical aid and Sections 102 to 111 apply mutatis mutandis.

10H (1) The Governor in Council may make regulations to implement the benefits referred to in Sections 10D 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 10D and 10E shall be paid effective January 1, 1999.

(2) For greater certainty, a worker referred to in Sections 10D or 10E 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 "five days";

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

(c) adding "and the worker is a worker for the purpose of subsection 3(1)" immediately after "worker" in the last line.

(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 in such circumstances as to entitle the worker or the worker's dependants to an action against some person other than a person against whom all rights of action are barred pursuant to Section 28, the worker or the worker's dependants, if entitled to compensation under this Part, may claim such compensation, or may bring such action, provided a written notice of election to bring such action is made to the Board.

(2) A written election shall be received by the Board within one hundred and eighty days of the date of the accident and, notwithstanding any enactment, the time for filing a written election shall not be extended.

(3) Where any compensation is paid prior to the date of election, the Board is subrogated to the position of the worker or the worker's dependants to the extent of such payment and shall be paid in priority from any amount the worker or dependant receives from any action pursuant to subsection (1).

(4) Where no written election is received by the Board within one hundred and eighty days, 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.

(5) Where the Board is subrogated to a cause of action pursuant to subsection (4), 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;

(b) by the Board in its own name; or

(c) where the Board does not exercise its rights pursuant to clause (a) or (b), by the worker, the worker's personal representative or a dependant of the worker, with the prior consent of the Board.

(6) Where a cause of action is pursued by a worker under subsection (1) or clause (5)(c) 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, provided that the prior written approval of the Board to such settlement has been given.

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

(8) Where a worker has received compensation prior to the election referred to in subsection (1), any settlement of any right of action by the worker or the worker's dependants shall be of no effect unless made with the prior written approval of the Board.

(9) 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 (4).

(10) 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 (4).

(11) A worker shall co-operate with the Board in respect of a cause of action referred to in subsection (4) 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.

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

31 (1) Money recovered in an action or settlement of the action pursuant to Section 30 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 payable 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 in full settlement of the cause of action, the Board has the authority to release the person paying the money, or the person on whose behalf the money is paid, from all liability in the cause of action including any rights of the worker or the worker's dependants.

(2) Subsection (1) applies to causes of action arising on or after October 1, 1998, and, notwithstanding subsection (1), for causes of action arising on or after October 1, 1998, and before the coming into force of subsection (1), the one hundred and eighty day period referred to in subsection (1) commences on the coming into force of subsection (1).

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 The heading immediately preceding Section 49 and Section 49 of Chapter 10 are repealed.

6 (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.

7 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

(a) before January 1, 1999, for a dependent spouse whose survivor benefits under the former Act were discontinued before April 17, 1985; or

(b) before the later of April 17, 1985, and the date the survivor benefits were discontinued under the former Act for a dependent spouse whose survivor benefits under the former Act were discontinued on or after April 17, 1985, and 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.

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

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

9 (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.

10 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.

11 Section 115 of Chapter 10 is amended by adding immediately after subsection (6) the following subsection:

(7) Notwithstanding anything contained in this Section, the amount paid out of the Accident Fund each year with respect to the costs of administering the Occupational Health and Safety Act shall be that proportion of the total costs of administering that Act that the number of employees employed by employers assessed pursuant to this Act bears to the total number of employees in the Province covered by the Occupational Health and Safety Act.

12 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 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.

13 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.

14 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.

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

16 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.

17 Subsection 161(1) of Chapter 10 is amended by striking out "of the end of the Board's third complete fiscal year after the coming into force of this Act" in the second and third lines and substituting "from the beginning of the year 2001".

18 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.

19 (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".

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

21 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.

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

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

(a) repealing clause (a); and

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

24 Chapter 10 is further amended by adding immediately after Section 194 the following Section:

194A The Board may enter into any agreement with the Government of Canada or its agencies that, in the opinion of the Board, is necessary to carry out effectively the intent and purpose of this Act.

25 Section 196 of Chapter 10 is repealed.

26 (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.

27 Clause 227(4)(a) of Chapter 10 is repealed and the following clause substituted:

(a) was injured before March 23, 1990, and is receiving or is entitled to receive periodic compensation for either permanent partial disability or permanent total disability or is entitled to receive the amended interim earnings loss benefit pursuant to Section 10D as a result of the injury;

28 (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.

29 Chapter 10 is further amended by adding immediately after Section 238 the following Section:

238A The Minister of Justice is responsible for the supervision and management of this Part.

30 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.

31 Section 246 of Chapter 10 is amended by adding immediately after subsection (2) the following subsection:

(3) Subject to Section 247 and 251, the Appeals Tribunal shall decide an appeal within sixty days of the completion of the oral hearing or, where no oral hearing is held, the date on which all submissions, in accordance with subsection 246(1), have been received by the Appeals Tribunal.

32 (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.

33 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.

34 Chapter 10 is further amended by adding immediately after Section 252 the following Section:

252A The Appeals Tribunal shall issue a decision clearly stating the determination of the Appeals Tribunal on the appeal and shall state the reasons for the decision as briefly as possible without undue elaboration.

35 (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.

(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.

36 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".

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

38 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.

39 Clause 263(b) of Chapter 10 is repealed and the following clause substituted:

(b) shall establish other offices in other parts of the Province where the number of appeals before the Board or the Appeals Tribunal by workers who reside in a part of the Province warrant the establishment of another office.

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

41 (1) Sections 1, 4, 6, 7 and 10 come into force on such day as the Governor in Council orders and declares by proclamation.

(2) Sections 29, 37 and 38 come into force six months after this Act receives Royal Assent or such earlier day as the Governor in Council orders and declares by proclamation.