Workers' Compensation Act (sect.69-88)

69 In this Section and Section 70, "consumer price index" means the "all-items" Consumer Price Index for the Province as published monthly by Statistics Canada except where

(a) no figure is published for a particular month; or

(b) after the coming into force of this Section, Statistics Canada uses a new method to determine the consumer price index for the Province for a particular month and the new method results in a change of more than one percentage point when compared with the former method,

in which cases the Board shall determine an amount that, in its opinion, represents the annual rate of increase in consumer prices for the Province.

70 (1) Commencing January 1, 2000, the Board shall, as of the first day of January in each year, determine an indexing factor based on one half of the percentage change in the consumer price index for the preceding year.

(2) As of the first day of January in each year, commencing January 1, 2000, the Board shall adjust the amount of compensation payable as

(a) permanent-impairment benefits;

(b) extended earnings-replacement benefits;

(c) survivor pensions;

(d) dependent-child benefits; and

(e) permanent pensions payable pursuant to a predecessor Act,

by applying the indexing factor determined pursuant to subsection (1) to the amount of compensation payable for the preceding year.

(3) Nothing in this Section entitles a person to claim additional compensation for

(a) any period before the effective date of an increase in compensation pursuant to subsection (2); or

(b) any award commuted or paid as a lump sum before the effective date of the increase.

(4) Where a worker has been receiving a temporary earnings-replacement benefit for more than twelve continuous months, the Board shall, as of the next following January 1st, adjust the compensation payable to the worker at the rate and according to the procedure provided in subsection (2).

Review of Compensation

71 (1) The Board may review and adjust its determination of the amount of compensation payable as a permanent-impairment benefit where there is, in the Board's opinion, a change in the worker's condition that

(a) was not taken into account at the most recent determination of the worker's permanent-impairment rating by the Board; and

(b) repealed 1999, c. 1, s. 8.

(2) The Board shall not review or adjust a permanent-impairment benefit pursuant to subsection (1) until sixteen months have elapsed from the time of the Board's most recent determination of the worker's permanent-impairment rating.

72 The Board may review and adjust its determination of the amount of compensation payable to a worker as a temporary earnings-replacement benefit at any time.

73 (1) Subject to subsection (2), the Board may review and adjust its determination of the amount of compensation payable to a worker as an extended earnings-replacement benefit

(a) once, commencing in the thirty-sixth month after the date of the initial award of the benefit;

(b) once, commencing in the twenty-fourth month after a review pursuant to clause (a) is completed, if at the time the review pursuant to clause (a) is completed the Board is of the opinion that a further review is necessary;

(c) after a review of the permanent-impairment rating of the worker pursuant to subsection 71(1) results in an adjustment of the permanent-impairment rating of at least ten percentage points according to the schedule established pursuant to Section 34; and

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

(2) The Board shall not vary the amount of compensation payable as an extended earnings-replacement benefit unless the amount of the variation would be equal to at least ten per cent of the amount of compensation being paid at the time of review.

(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.

(3) An award of an extended earnings-replacement benefit is final, subject to subsection (1), and shall not be further reviewed or adjusted. 1999, c. 1, s. 9.

Effect of certain losses of earnings

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

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. 1999, c. 1, s. 10.

Payment of Compensation

74 (1) Payments of compensation shall be made in the manner and form as may appear to the Board to be most convenient.

(2) Subject to subsection (3), the Board may, where in the opinion of the Board it is to the advantage of the worker to do so,

(a) commute any compensation payable as periodic payments to a lump sum; and

(b) pay any compensation payable as a lump sum in periodic payments.

(3) Without restricting the generality of subsections (1) and (2), where

(a) a worker's permanent-impairment rating according to the rating schedule prescribed pursuant to Section 34 does not exceed thirty per cent; or

(b) no extended earnings-replacement benefit is payable to a worker after a review pursuant to clause 73(1)(a),

the Board may pay to the worker a lump sum in lieu of the worker's permanent-impairment benefit.

75 (1) Subject to subsection (2), where a temporary earnings-replacement benefit is payable, it shall be computed in accordance with Section 37.

(2) Where a temporary earnings-replacement benefit is payable as the result of a recurrence of an injury, compensation shall be computed and be payable from the day on which the loss of earnings resulting from the recurrence commences unless one year has elapsed since the worker's temporary earnings-replacement benefit for the injury ended, in which case, subsection (1) applies.

(3) Where an extended earnings-replacement benefit is payable, it shall be computed and be payable from the later of

(a) the date on which the Board determines the worker has a permanent impairment pursuant to Section 34; or

(b) the date on which the worker completes a rehabilitation program, where the worker is engaged in a rehabilitation program on or after the date on which the Board determines the worker has a permanent impairment pursuant to Section 34.

(4) Where compensation is payable for permanent impairment, it shall be computed and be payable from the date on which the Board determines the worker has a permanent impairment pursuant to Section 34.

76 (1) In fixing the amount of any compensation, the Board shall have regard to any payment, allowance or benefit which the worker receives from the worker's employer or any other person in anticipation of compensation being paid pursuant to this Part and may deduct that amount from any compensation payable.

(2) Any sum deducted from payments of compensation pursuant to subsection (1) may be paid to the employer or other person to reimburse the employer or other person for the payment, allowance or benefit.

77 (1) Except with the approval of the Board, no person shall assign, seize, charge, attach or otherwise encumber or transfer any compensation payable pursuant to this Part.

(2) No compensation payable pursuant to this Part shall pass by operation of law, except to a personal representative of the person receiving compensation.

(3) Without limiting the Board's remedies for recovery, any amount owed to the Board pursuant to this Part, including any amount owed as a penalty pursuant to this Part, may be set off by the Board against any compensation that is or may become payable to any person indebted to the Board.

78 (1) Where a worker entitled to compensation pursuant to this Part is confined to a psychiatric institution, prison or other institution, the Board may

(a) suspend;

(b) withhold; or

(c) re-direct to the worker's dependants or to a trustee for the dependants approved by the Board,

the whole or any part of any compensation payable to the worker.

(2) Where a worker entitled to compensation pursuant to this Part

(a) is a minor;

(b) is mentally incompetent; or

(c) is not, in the opinion of the Board, capable of administering the payments of compensation for the worker's own benefit,

the Board may re-direct to the person's dependants or to a trustee approved by the Board, the whole or any part of any compensation payable to the worker.

79 Where any worker

(a) is entitled to compensation pursuant to this Part; and

(b) dies before any compensation accrued payable at the time of the worker's death has been paid,

the Board may pay the compensation to any dependant of the worker or to any person who cared for the worker prior to the death of the worker.

80 The Board may withhold compensation payable to a parent with respect to the death of any child under the age of fourteen years where the employment of the child was in violation of any enactment.

81 The Board may deny a claim for compensation or reduce the amount of compensation payable to a worker where

(a) the worker previously made a claim for an injury of the same nature as the injury in respect of which the claim is made;

(b) the worker has a medical condition that, in the opinion of the Board, requires the worker to be removed temporarily or permanently from working at a particular type of employment because the medical condition could result in an injury of the same nature as the injury in respect of which the claim is made;

(c) the worker's claim is made after the Board requested the worker to discontinue working at the particular type of employment in order to avoid injuries of the same nature as the injury in respect of which the claim is made;

(d) the Board has offered to provide the worker with the rehabilitation assistance the Board considers necessary to enable the worker to become employable in another class of employment; and

(e) the worker continues or returns to employment at the particular type of employment without the approval of the Board.

Duties of Workers

82 Where a worker is eligible to apply for compensation pursuant to this Part, the worker shall forthwith file with the Board

(a) a claim for compensation;

(b) the attending physician's report; and

(c) any further evidence of the claim as may be required from time to time by the Board.

83 (1) In the case of an injury that is not an occupational disease, the Board shall not pay compensation except where

(a) the worker has given the employer notice of the accident as soon as practicable after the happening of the accident and before the worker has voluntarily left the employment where the worker was injured; and

(b) the worker's claim for compensation is made within twelve months of the happening of the accident.

(2) In the case of an occupational disease, the Board shall not pay compensation except where

(a) the worker has given the employer notice of the injury as soon as practicable after the worker learns that the worker suffers from an occupational disease; and

(b) the worker's claim for compensation is made within twelve months after the worker learns that the worker suffers from the occupational disease for which the worker is claiming compensation.

(3) The notice required pursuant to clause (1)(a) shall

(a) give the name and address of the worker; and

(b) state the cause of the accident and the place the accident happened.

(4) The notice required pursuant to clause (2)(a) shall contain the particulars set out in subsection (3) and is to be given to the employer who last employed the worker in the employment causing the disease.

(5) Failure to give notice pursuant to this Section bars the right to compensation unless, upon the application of the worker, the Board determines that

(a) any right of the worker's employer pursuant to this Part; and

(b) the subrogated interest of the Board,

has not been prejudiced by the failure, in which case the Board may extend the time for filing a claim.

(6) Subsection (5) does not apply where five years or more have elapsed from

(a) the happening of the accident; or

(b) the date when the worker learns that the worker suffers from an occupational disease,

as the case may be.

84 (1) Every worker shall

(a) take all reasonable steps to reduce or eliminate any permanent impairment and loss of earnings resulting from an injury;

(b) seek out and co-operate in any medical aid or treatment that, in the opinion of the Board, promotes the worker's recovery;

(c) take all reasonable steps to provide to the Board full and accurate information on any matter relevant to a claim for compensation; and

(d) notify the Board immediately of any change in circumstances that affects or may affect the worker's initial or continuing entitlement to compensation.

(2) The Board may suspend, reduce or terminate any compensation otherwise payable to a worker pursuant to this Part where the worker fails to comply with subsection (1).

85 (1) Subject to subsections (2) and (3), any worker who claims compensation pursuant to this Part shall submit to a medical examination if requested to do so by

(a) the worker's employer;

(b) the Board;

(d) the Medical Review Commission pursuant to Section 205.

(2) Where a worker objects to a request pursuant to clause (1)(a), the Board may determine if the request is reasonable.

(3) Where the Board determines, pursuant to subsection (2), that the request is not reasonable, the worker is not required to submit to the medical examination.

(4) The Board may suspend, reduce or terminate any compensation otherwise payable to a worker pursuant to this Part where the worker fails to comply with subsection (1).

Duties of Employer

86 (1) Where an accident occurs in such circumstances as may entitle a worker to compensation, the worker's employer shall notify the Board, within five business days of becoming aware of the occurrence of the accident, or any other period as the Governor in Council may prescribe by regulation, of

(a) the occurrence and nature of the accident;

(b) the time the accident occurred;

(c) the name and address of the worker;

(d) the place the accident happened;

(e) the name and address of the physician or surgeon, if any, by whom the worker was or is attended for any injury;

(f) the name and address of the hospital or other health care institution, if any, where the worker was or is attended for any injury; and

(g) any other information required by the Board.

(2) The employer shall make any further report regarding the injured worker required by the Board.

87 (1) No worker shall agree to waive any compensation the worker may become entitled to pursuant to this Part.

(2) Any waiver made contrary to subsection (1) is void.

88 No employer shall, directly or indirectly,

(a) deduct from the earnings or employment benefits of any of the employer's workers any sum that the employer is or may become liable to pay into the Accident Fund;

(b) require or permit any of the employer's workers to contribute in any manner towards indemnifying the employer against any liability imposed on the employer pursuant to this Part;

(c) collect, receive or retain from any worker any contributions towards the expense of medical aid;

(d) deduct from any accumulated sick leave of an injured worker any amount respecting a period of time during which the worker is receiving an earnings-replacement benefit as a result of an injury;

(e) influence or attempt to influence a worker not to claim or receive compensation pursuant to this Part; or

(f) discipline or discriminate against a worker who reports an accident or makes a claim for or receives compensation pursuant to this Act.