PART III

Workers' Advisers

259 In this Part,

(a) "adviser" means a lawyer or a person who by formal education or professional experience is qualified to prepare and present claims for compensation pursuant to this Part and to advise on routine matters of evidence and law;

(b) "Chief Worker Adviser" means the officer appointed pursuant to this Part to administer the Workers' Advisers Program;

(c) "lawyer" means a person who is authorized to practise law in the Province;

(d) "Program" means the Workers' Advisers Program established by this Part;

(e) "worker" includes a dependant of a worker.

260 There is hereby established the Workers' Advisers Program.

261 The purpose of the Program is to

(a) provide assistance, advice and representation in accordance with prescribed eligibility criteria to workers seeking compensation pursuant to Part I; and

(b) discharge any other function

(i) prescribed by the Governor in Council, or

(ii) authorized by the Minister.

262 (1) The Governor in Council shall appoint a person recommended by the Minister to be the Chief Worker Adviser.

(2) The person appointed pursuant to subsection (1) shall be a practising member of the Nova Scotia Barristers' Society or, if not a practising member of the Society, shall become a practising member of the Society within one year of appointment.

(3) The Chief Worker Adviser appointed pursuant to subsection (1) is responsible for

(a) administering the budget and work of the Program;

(b) recruiting and hiring advisers, in accordance with the Civil Service Act;

(c) subject to the regulations, fixing the respective duties of lawyers and advisers engaged pursuant to clause (b);

(d) in accordance with the Civil Service Act, recruiting and hiring staff, other than advisers, necessary for the operation of the Program and fixing their duties and remuneration;

(e) the development and implementation of policies for the administration of the work of the Program and the allocation of its resources.

263 The Chief Worker Adviser

(a) shall establish a head office for the Program in the City of Halifax; and

(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. 1994-95, c. 10, s. 263; 1999, c. 1, s. 39.

264 The Chief Worker Adviser shall supervise and direct the advisers and other staff of the Program.

265 The persons hired by the Chief Worker Adviser pursuant to Section 262 are, with the exception of temporary employees, members of the public service and the Public Service Superannuation Act applies to those persons.

266 (1) The Chief Worker Adviser may engage any member of the Nova Scotia Barristers' Society to act as a temporary adviser

(a) for a particular worker ; or

(b) for a defined category of workers or for workers in a particular geographic area.

(2) No person engaged pursuant to this Section is, by reason of this Section only, a member of the public service entitled to public service benefits pursuant to the Public Service Superannuation Act, or any other Act.

267 (1) Notwithstanding the Barristers and Solicitors Act, persons who are engaged as advisers pursuant to this Part or persons who are engaged as worker advisers by an organization designated by the Minister, may

(a) appear before the Board or the Appeals Tribunal on behalf of workers; and

(b) advise workers on their entitlement to compensation.

(2) Nothing in this Section authorizes advisers who are not lawyers to appear as counsel in any court.

268 The Chief Worker Adviser shall make an annual report on the finances and operation of the Program to the Minister.

269 (1) The budget of the Program shall be appropriated from the Consolidated Fund of the Province.

(2) The cost of medical opinions and consultations shall be paid from the budget of the Program according to the schedule of fees provided for in an agreement between the Board and the Medical Society of Nova Scotia.

270 (1) Nothing in this Part gives any person the right to legal advice or representation under the Program.

(2) No person shall be provided with advice or representation in connection with a claim for compensation pursuant to Part I at the expense of the Program

(a) until a claim has been denied; or

(b) repealed 1999, c. 1, s. 40.
1994-95, c. 10, s. 270; 1999, c. 1, s. 40.

271 (1) Nothing in this Part

(a) limits the right of any person to retain counsel of the person's choice and at the person's expense in respect of a matter arising under Part I or Part II; or

(b) prohibits any person or organization not funded through the Program from advising or representing workers in respect of claims for compensation or appeals pursuant to Part I or Part II.

(2) For greater certainty,

(a) the sole client of every adviser, and of the Program, in respect of each matter on which assistance, advice and representation is given, is the worker or workers concerned; and

(b) assistance, advice and representation given to any worker or workers by advisers engaged pursuant to Section 262 is the sole responsibility of those advisers and of the Chief Worker Adviser.

272 The Minister may, on such terms and conditions as the Minister deems appropriate or the Governor in Council prescribes,

(a) designate any trade union, association of trade unions or other worker association as an organization authorized to provide advice, assistance and representation to workers as part of the Program under the general supervision and direction of the Chief Worker Adviser; and

(b) provide funding to any organization designated pursuant to clause (a) from the budget of the Program.

273 (1) Every worker counsellor appointed pursuant to the former Workers' Compensation Act as of the date of its repeal is, subject to this Section, a temporary adviser for the purpose of this Part.

(2) The designation of a worker's counsellor made pursuant to subsection (1) ceases to operate two years after the coming into force of this Part.

(3) Nothing in this Section requires a worker's counsellor appointed pursuant to the former Workers' Compensation Act to act as a temporary adviser pursuant to this Part.

274 (1) The Governor in Council may make regulations

(a) prescribing the matters that may be assigned to advisers who are not lawyers;

(b) defining any term used but not defined in this Part;

(c) prescribing the terms and conditions under which funding may be provided to worker organizations, including the form of any agreement;

(d) defining the criteria to be applied in determining eligibility for assistance, advice and representation pursuant to the Program;

(e) prescribing the procedure to be followed in applying for assistance under the Program, including the forms to be used and the information to be provided; and

(f) providing or dealing with any other matter necessary for the effective operation of the Program and the achievement of the purposes of this Part.

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

PART IV

GENERAL

275 (1) Chapter 508 of the Revised Statutes, 1989, the Workers' Compensation Act, is amended by adding immediately after Section 9 the following Section:

9A (1) Notwithstanding anything contained in this Act, the Board shall not pay compensation pursuant to Section 9 until the worker who is injured has not received any remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source after the injury that is equivalent to two-fifths of the worker's net average weekly compensation.

(2) The Board shall not pay compensation to a worker in respect of the period of time referred to in subsection (1) except as provided for in subsection (3).

(3) Where a loss of earnings results from an injury for more than five weeks, the Board shall pay to the worker the amount deducted pursuant to subsection (1).

(4) Nothing in subsection (1) prohibits a worker from receiving remuneration from an employer pursuant to a collective agreement or employment contract in force on the coming into force of this Section equivalent to two-fifths of the worker's net average weekly compensation.

(5) Notwithstanding subsection (4),

(a) when a collective agreement referred to in subsection (4) expires, subsection (1) applies to any new collective agreement; and

(b) subsection (1) applies to an employment contract referred to in subsection (4), when the employment contract expires or three years after the coming into force of this Section, whichever is earlier.

(2) Section 37 of Chapter 508 is amended by adding "net" immediately after "worker's" in the third line.

(3) Section 38 of Chapter 508 is amended by adding "net" immediately before "average" in the third and in the fifth lines.

(4) Chapter 508 is further amended by adding immediately after Section 38 the following Section:

38A (1) For the purpose of Sections 37 and 38, the net average weekly earnings of the worker are the worker's gross average earnings, less the probable deductions for

(a) income tax payable by the worker;

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

(c) unemployment-insurance premiums payable by the worker; and

(d) any other type of deduction the Board may establish by regulation.

(2) The income tax payable pursuant to clause (1)(a) may be calculated by using

(a) the worker's income from employment and, where unemployment-insurance benefits have been included in average earnings, the worker's income from unemployment-insurance benefits as income; and

(b) the worker's basic personal tax credits or exemptions and tax credits or exemptions for a person who is a dependant of the worker pursuant to the Income Tax Act (Canada) as deductions.

(3) The Board may establish a schedule or procedure for determining the probable deductions required by subsection (1).

(4) In establishing a schedule or procedure pursuant to subsection (3) and in calculating probable deductions pursuant to subsection (1), it is not necessary that the Board consider a worker's actual circumstances or deductions.

38B (1) Where the worker was injured before the coming into force of the amendments to Section 37 and 38 and the coming into force of Section 38A, as contained in the Workers' Compensation Act, the Board shall recalculate the amount of compensation payable to the worker in accordance with the amended Sections 37 and 38 and Section 38A.

(2) The Board shall commence payment of the amount recalculated pursuant to subsection (1) six months after the coming into force of the amendments referred to in subsection (1).

(5) The amendments to Chapter 508 contained in subsections (1) to (4) apply where the worker was injured on or after the coming into force of subsections (1) to (4).

(6) Section 46 of Chapter 508 is repealed.

(7) Subsection 62(1) of Chapter 508 is amended by

(a) striking out "increase" in the third line and substituting "vary"; and

(b) striking out "in excess of" in the fifth line and substituting "from".

(8) Subsection 62(3) of Chapter 508 is amended by striking out "increase" in the second and in the third lines and substituting in each case "vary".

(9) Section 149 of Chapter 508 is repealed and the following Section substituted:

149 (1) The Board may

(a) invest any funds arising under any provisions of this Act or under the Board's control according to investment and lending policies, standards and procedures that a reasonable and prudent person would apply in respect of a portfolio of investments to avoid undue risk of loss and obtain a reasonable return; and

(b) borrow from any chartered bank, by way of overdraft or otherwise, any sums the Board considers necessary to properly carry out the provisions of this Act.

(2) The funds, investments and income of the Board are free from every form of taxation.

(10) Sections 169 to 186 of Chapter 508, including any amendment pursuant to subsection (11), are repealed and the following Section substituted:

169 (1) The Governor in Council may make regulations respecting appeals pursuant to this Act.

(2) Notwithstanding the repeal of Sections 169 to 186, a regulation made pursuant to subsection (1) may include a provision continuing the former Appeal Board for the purpose of deciding appeals which have been heard but not decided by the Appeal Board on the coming into force of this Section.

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

(11) Chapter 508 is further amended by adding immediately after Section 185 the following Sections:

185A (1) The Governor in Council may appoint an auditor for the purpose of this Section.

(2) At least one auditor appointed pursuant to subsection (1) shall be legally trained.

(3) The remuneration of the auditor shall be fixed by the Governor in Council and paid out of the Accident Fund.

(4) Subject to the regulations, the auditor shall review all matters pending before the Appeal Board.

185B (1) Notwithstanding anything contained in this Part, the Chairman or a vice-chairman sitting alone constitutes a quorum of the Appeal Board.

(2) Notwithstanding anything contained in this Part, an oral hearing is required only where it is requested by the worker.

(3) Notwithstanding Section 169, the Governor in Council may

(a) appoint more than nine members to the Appeal Board; and

(b) designate any member of the Appeal Board to be a vice-chairman.

276 Chapter 508 of the Revised Statutes, 1989, the Workers' Compensation Act, is repealed.

277 This Act, except subsections 275(6) and (9), comes into force on and not before such day as the Governor in Council orders and declares by proclamation.