10 (1) Where, in an industry to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation to the worker as provided by this Part.

(2) The compensation payable pursuant to subsection (1) shall be paid out of the Accident Fund.

(3) Where a personal injury is attributable wholly or primarily to the serious and wilful misconduct of the worker, the Board shall not pay compensation to the worker unless the personal injury

(a) results in death or serious and permanent impairment; or

(b) is likely, in the opinion of the Board, to result in serious and permanent impairment.

(4) Where the accident arose out of employment, unless the contrary is shown, it shall be presumed that it occurred in the course of employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment.

(5) Where a personal injury by accident referred to in subsection (1) results in loss of earnings or permanent impairment

(a) due in part to the injury and in part to causes other than the injury; or

(b) due to an aggravation, activation or acceleration of a disease or disability existing prior to the injury,

(6) The Board may, by regulation, exclude any type or class of personal injury or occupational disease from the operation of this Part.

(7) The Board may, by regulation, include any type or class of personal injury or occupational disease on terms or conditions, including rates, types and durations of compensation other than those specified in this Part, that the Board may prescribe.

Interpretation

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. 1999, c. 1, s. 1.

Exclusions

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. 1999, c. 1, s. 1.

Interpretation of Sections 10D and 10E

10C In Sections 10D and 10E, "former Act" means Chapter 508 of the Revised Statutes. 1999, c. 1, s. 1.

Substituted benefit

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. 1999, c. 1, s. 1.

Permanent-impairment benefit

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. 1999, c. 1, s. 1.

Finality of decision

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. 1999, c. 1, s. 1.

Entitlement to medical aid

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. 1999, c. 1, s. 1.

Regulations

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. 1999, c. 1, s. 1.

Effective date of benefits

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. 1999, c. 1, s. 1.

11 Any worker found dead in the underground workings of a coal mine is presumed to have died as a result of personal injury by accident arising out of and in the course of the worker's employment, unless there is evidence sufficient to rebut the presumption.

12 (1) Where an occupational disease is due to the nature of any employment to which this Part applies in which a worker was engaged, whether under one or more employments, and

(a) the occupational disease results in loss of earnings or permanent impairment; or

(b) the worker's death is caused by the occupational disease,

the worker is entitled to compensation as if the occupational disease was a personal injury by accident.

(2) Where a worker suffers from an occupational disease, the date of the worker's injury, for the purpose of this Act, is the earliest of

(a) the date on which the occupational disease results in loss of earnings;

(b) the date on which the Board determines the worker has a permanent impairment caused by the occupational disease; or

(c) the date on which the worker¼s death is caused by the occupational disease.

(3) Where any worker

(a) was employed at or immediately before the date of injury in any process, trade or occupation prescribed by the Board by regulation; and

(b) the disease contracted by the worker is set opposite to the description of the process, trade or occupation in the regulations,

the disease contracted by the worker is presumed, unless the contrary is shown, to have been due to the worker's employment in that process, trade or occupation.

(4) Nothing in this Section affects the right of a worker to compensation in respect of a disease to which this Section does not apply, if the disease is the result of any injury in respect of which the worker is entitled to compensation pursuant to this Part.

(5) Notwithstanding subsection (1), no compensation is payable to a worker who suffers from an occupational disease where, at the time of entering into employment, the worker has made a wilful and false representation that the worker did not previously suffer from the occupational disease for which the worker is claiming compensation.

13 (1) Where

(a) the occupational disease from which the worker suffers is silicosis or pneumonoconiosis; and

(b) the worker was exposed to silica dust or coal dust outside the Province,

compensation is payable to the worker if the provisions of subsection 12(1) are satisfied and

(c) the worker was a resident of the Province during the three years immediately preceding the date of the injury determined pursuant to subsection 12(2); and

(d) at least fifty per cent of the worker's exposure to silica dust or coal dust was in the worker's employment in an industry to which this Part applies.

(2) Where compensation is payable pursuant to subsection (1), the worker is eligible for compensation proportionate to the period of the worker's total exposure to silica dust or coal dust that occurred within the Province.

(3) Where

(a) compensation is payable pursuant to subsection (1); and

(b) compensation is also payable to the worker in a jurisdiction outside the Province as a result of the worker's exposure to silica dust or coal dust,

the Board may reduce any compensation payable pursuant to this Part by the amount payable pursuant to the legislation of the other jurisdiction.

14 (1) No compensation is payable pursuant to Section 13 unless the claim for compensation is filed with the Board

(a) within five years after the worker ceased to be regularly employed in an industry where the worker was exposed to silica dust or coal dust; and

(b) within one year after the worker or worker's dependant learns that the injury or death resulted from silicosis or pneumonoconiosis.

(2) Notwithstanding subsection (1), the Board may pay a claim for uncomplicated silicosis where

(a) the worker is a resident of the Province at the time the claim is made; and

(b) the worker has not been exposed to silica dust elsewhere than in the Province.

(3) The Board shall not pay compensation pursuant to subsection (2) for any period of time prior to the date the worker's claim is filed with the Board.

(4) Notwithstanding subsections (1) and (2), the Board in its discretion, upon written application, may at any time reconsider or receive a claim for compensation based upon the injury or death of a worker resulting from silicosis or pneumonoconiosis and consider the claim on its merits and may pay compensation, but no compensation shall be paid for any period of time prior to the date the application, pursuant to this subsection, is filed with the Board.

15 (1) Where the occupational disease from which the worker suffers was caused by exposure to radiation, the worker is eligible for compensation proportionate to the amount of the worker's total exposure to radiation that occurred within the Province.

(2) Every employer, who makes use of X-rays, isotopes or any other form of radiation likely to prove a hazard to a worker exposed to it, shall make, retain and furnish to the Board a record of the exposure on a form and in a manner prescribed or approved by the Board.

16 Sections 13, 14 and 15 are subject to any agreement entered into pursuant to Section 166 with respect to the sharing of costs between the Board and a workers' compensation board or similar authority in any jurisdiction where the worker was exposed to silica dust, coal dust or radiation.

17 The Board or an employer, with the approval of the Board, may, from time to time, in writing, require any worker employed by the employer to undergo a medical examination for the purpose of determining whether or to what extent the worker is affected by an occupational disease.

18 Where an occupational disease is contracted gradually, the Board may apportion the cost of compensation and other expenditures made by the Board among the employers who have employed the worker in employment to which the occupational disease is due.

19 Subject to Sections 20 to 27 and Section 166, no compensation is payable to a worker pursuant to this Part unless

(a) the place where the worker usually works for the employer is in the Province; and

(b) the accident occurs in the Province.

20 (1) Where

(a) a worker's residence is within the Province;

(b) the place where the worker usually works for the employer is within the Province;

(c) the place of business or chief place of business of the employer is within the Province;

(d) an accident occurs while a worker is employed outside the Province; and

(e) at the time of the accident the worker had been employed outside the Province for less than six months,

the worker may claim compensation pursuant to this Part as if the accident had occurred in the Province.

(2) Where

(a) a worker's residence is within the Province;

(b) the place where the worker usually works for the employer is within the Province;

(c) the place of business or chief place of business of the employer is within the Province; and

(d) the employment of the worker outside the Province lasts or is likely to last for six or more months,

the worker's employer may apply to the Board to be assessed on the earnings of the worker.

(3) Where

(a) an application made pursuant to subsection (2) is approved by the Board; and

(b) an accident occurs while the worker is employed outside the Province,

the worker may claim compensation pursuant to this Part as if the accident had occurred in the Province.

21 (1) Where

(a) the residence of a worker is outside the Province;

(b) the place where the worker usually works for the employer is outside the Province; and

(c) the worker's employment within the Province lasts or is likely to last for more than five days,

the worker's employer shall apply to the Board to be assessed on the earnings of the worker and the worker is a worker for the purpose of subsection 3(1).

(2) repealed 1999, c. 1, s. 2.

1994-95, c. 10, s. 21; 1999, c. 1, s. 2.

22 Where

(a) the residence of a worker is outside the Province;

(b) the place where the worker usually works for the employer is within the Province;

(c) the place of business or chief place of business of the employer is within the Province;

(d) an accident occurs while the worker is outside the Province; and

(e) at the time of the accident the worker was outside the Province merely for some temporary purpose connected with the worker's employment within the Province,

the worker may claim compensation pursuant to this Part as if the accident had occurred in the Province.

23 Where

(a) an accident occurs while a worker is outside the Province;

(b) the place of business or chief place of business of the employer is outside the Province; and

(c) the worker is entitled to compensation pursuant to the law of the place where the accident occurred,

the worker may not claim compensation pursuant to this Part, whether the worker's residence is within or outside the Province, unless

(d) the place where the worker usually works for the employer is within the Province; and

(e) at the time of the accident the worker was outside the Province merely for some temporary purpose connected with the worker's employment within the Province.

24 Where

(a) an accident occurs outside the Province in connection with the operation of

(i) a ship, boat or other vessel, or

(ii) an aircraft, train, truck, bus or other vehicle used to transport goods or passengers;

(b) the worker's residence is within the Province; and

(c) the work or service performed by the worker is required to be performed both within and outside the Province,

the worker may claim compensation pursuant to this Part as if the accident had occurred in the Province.

25 Where a worker is employed outside the Province and the circumstances of

(a) the place of business or chief place of business of the worker's employer;

(b) the residence of the worker; and

(c) the worker's usual place of employment,

are such that, if an accident occurred while the worker was outside the Province, the worker could claim compensation as if the accident had occurred in the Province, the worker's employer shall declare and be assessed on the earnings of the worker in the same way and in the same amounts as though the worker was employed within the Province.

26 (1) Where

(a) compensation is payable for an injury that occurred outside the Province; and

(b) the worker's employer has not reported the full earnings of the worker to whom the injury occurred,

the employer is liable, unless relieved by the Board, for the full amount of compensation and other expenditures made by the Board.

(2) The Board may collect the amount for which the employer is liable pursuant to subsection (1) in the same manner as the collection of an assessment.

27 (1) Where a worker is entitled to compensation pursuant to

(a) the laws of the jurisdiction where the accident occurred; and

(b) this Part,

the worker shall decide to be compensated according to either the laws of the jurisdiction where the accident occurred, or this Part.

(2) Notice in writing of a decision made pursuant to subsection (1) shall be given to the Board within six months of the occurrence of the accident.

(3) Where, pursuant to subsection (1), a worker

(a) decides to claim compensation in the jurisdiction where the accident occurred; or

(b) fails to make an election,

the worker may not claim compensation pursuant to this Part.

28 (1) The rights provided by this Part are in lieu of all rights and rights of action to which a worker, a worker's dependant or a worker's employer are or may be entitled against

(a) the worker's employer or that employer's servants or agents; and

(b) any other employer subject to this Part, or any of that employer's servants or agents,

as a result of any personal injury by accident

(c) in respect of which compensation is payable pursuant to this Part; or

(d) arising out of and in the course of the worker's employment in an industry to which this Part applies.

(2) Clause (1)(b) does not apply where the injury results from the use or operation of a motor vehicle registered or required to be registered pursuant to the Motor Vehicle Act.

29 (1) Any party to an action may apply to the Chief Appeal Commissioner of the Appeals Tribunal for determination of whether the right of action is barred by this Part.

(2) An application made pursuant to subsection (1) shall be determined by the Appeals Tribunal constituted according to Section 238.

(3) The Appeals Tribunal has exclusive jurisdiction to make a determination of whether the right of action is removed by this Part.

(4) The decision of the Appeals Tribunal pursuant to this Section is final and conclusive and not open to appeal, challenge or review in any court, and if the Appeals Tribunal determines that the right of action is barred by this Part, the action is forever stayed.

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. 1999, c. 1, s. 3.

Application of money recovered

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. 1999, c. 1, s. 3.

Note: Sections 30 and 31 were enacted by 1999, c. 1, subsection 3(1). Subsection (2) provides that Sections 30 and 31 apply 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).

32 Where a worker or worker's dependant entitled to compensation pursuant to this Part has a right of action in a jurisdiction other than the Province in connection with the loss of earnings or permanent impairment for which compensation is payable,

(a) the Board may request the worker or worker's dependant to take an action in that other jurisdiction; and

(b) the worker or worker's dependant shall assign the right to damages recoverable, and all damages that the worker or worker's dependant recovers, under that action to the Board,

and the Board may withhold payment of compensation to the worker or worker's dependant until the worker or worker's dependant takes the action or makes the assignment.

33 (1) No party in any action may bring any action or proceeding for contribution or indemnity against any employer or worker against whom the plaintiff in the action is barred from taking an action pursuant to this Part.

(2) Where the defendant in the action is barred from taking third party proceedings against an employer or worker pursuant to subsection (1) and the employer or worker contributed to the damage or loss of the plaintiff in the action, the court shall hold the defendant liable only for that portion of the damage or loss caused by the defendant's own fault or negligence.

34 (1) Where a permanent impairment results from an injury, the Board shall pay the worker a permanent-impairment benefit.

(2) The existence and degree of a worker's permanent impairment shall be

(a) determined by the Board; and

(b) expressed as a percentage of total impairment.

(3) The Board

(a) shall establish a permanent_impairment rating schedule to be applied in calculating the award for a permanent impairment resulting from an injury; and

(b) may prescribe the rating schedule referred to in clause (a) as a regulation.

(4) Subject to subsection (5), the Board shall determine the amount of a worker's permanent-impairment benefit by multiplying

(a) thirty per cent of eighty_five per cent of the worker's net average earnings calculated in accordance with Sections 37 to 46; by

(b) the percentage of permanent impairment suffered by the worker, calculated in accordance with the rating schedule established pursuant to subsection (3).

(5) Subject to Section 71, the permanent_impairment benefit established by subsection (4) is payable for the lifetime of the worker.

(6) This Section does not apply in respect of a worker who dies as a result of an injury before a determination of the degree of permanent impairment is made.

35 Any coal miner who

(a) has worked at the face of a mine or in similar conditions twenty years or more; and

(b) suffers from a permanent impairment that is a loss of lung function,

shall be compensated according to the permanent impairment as calculated pursuant to Section 34.

36 Where

(a) any worker has a permanent impairment rated at one hundred per cent on the permanent-impairment rating schedule established pursuant to Section 34; and

(b) the worker dies,

the worker's death is presumed to be the result of the injury, unless there is evidence sufficient to rebut the presumption.