Acts and Regulations

2018, c.18 - An Act Respecting Addressing Recommendations in the Report of the Task Force on WorkSafeNB

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2018, c.18
An Act Respecting Addressing Recommendations in the
Report of the Task Force on WorkSafeNB
Assented to December 12, 2018
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
Firefighters’ Compensation Act
1(1)Subsection 14(1) of the Firefighters’ Compensation Act, chapter F-12.5 of the Acts of New Brunswick, 2009, is repealed and the following is substituted:
14(1)The Commission shall pay compensation to a firefighter or former firefighter until the earliest of the following events:
(a) the loss of earnings resulting from the disablement ceases;
(b) the firefighter or former firefighter attains the age of 65 years;
(c) the occurrence of a personal intervening condition not related to the disablement that has become the dominant cause of the firefighter’s or former firefighter’s inability to return to work or participate in rehabilitation; or
(d) the occurrence of any circumstance not related to the disablement that has become the dominant cause of the firefighter’s or former firefighter’s inability to return to work or participate in rehabilitation.
1(2)Section 18 of the Act is repealed and the following is substituted:
18The Commission may in its discretion diminish the compensation to which a firefighter or former firefighter is entitled or suspend payment of the compensation in any of the following circumstances:
(a) the firefighter or former firefighter does not attend or participate in an examination when required to do so by the Commission or obstructs the examination;
(b) the firefighter or former firefighter does not attend or participate in medical treatment or a rehabilitation program when the Commission considers it necessary for the firefighter’s or former firefighter’s treatment or rehabilitation; or
(c) the firefighter or former firefighter persists in dangerous and unsanitary practices imperilling or impeding the rehabilitation of the firefighter or former firefighter.
Workers’ Compensation Act
2(1)Section 7 of the Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended
(a) by adding before subsection (1) the following:
Definitions
7(0.1)The following definitions apply in this section.
“aggravation” , with respect to an injury by accident, means a permanent clinical effect of the injury on a pre-existing disease or condition.(aggravation)
“exacerbation” , with respect to an injury by accident, means a temporary clinical effect of the injury on a pre-existing disease or condition.(exacerbation)
(b) by repealing the heading “Aggravation of disease by injury” preceding subsection (5) and substituting “Aggravation or exacerbation of pre-existing disease or condition”;
(c) by repealing subsection (5) and substituting the following:
7(5)When a personal injury by accident arising out of and in the course of employment exacerbates or aggravates a pre-existing disease or condition, compensation that the Commission determines is reasonably attributable to the injury caused by the accident shall be payable, and not for the natural progression of the pre-existing disease or condition.
(d) by repealing the heading “Aggravation of disease by injury” preceding subsection (6) and substituting “Compensation borne by fund”;
(e) by repealing subsection (6) and substituting the following:
7(6)The compensation allowed under subsection (5) shall be borne by the fund referred to in section 66 for that portion of the compensation, as determined by the Commission, that relates to the aggravation of the pre-existing disease or condition.
2(2)Section 34 of the Act is amended by adding after subsection (2) the following:
Exclusive jurisdiction of Commission
34(2.1)Without limiting the generality of subsection (1), the Commission has exclusive jurisdiction to establish policies consistent with this Act, the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, the Firefighters’ Compensation Act and the Occupational Health and Safety Act for the purpose of determining entitlement to benefits under those Acts.
2(3)Section 38.11 of the Act is amended
(a) by adding after subsection (3) the following:
38.11(3.1)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (3) shall be read as a reference to “two working days”.
38.11(3.2)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (3) shall be read as a reference to “one working day”.
(b) by adding after subsection (9) the following:
38.11(9.1)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (9) shall be read as a reference to “two working days”.
38.11(9.2)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (9) shall be read as a reference to “one working day”.
(c) by repealing subsection (14) and substituting the following:
38.11(14)Compensation under this section is payable until the earliest of the following events:
(a) the loss of earnings resulting from the injury by accident ceases;
(b) the worker attains the age of 65 years;
(c) the occurrence of a personal intervening condition not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation; or
(d) the occurrence of any circumstance not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation.
2(4)Section 38.2 of the Act is amended
(a) by adding after subsection (2.2) the following:
38.2(2.21)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (2.2) shall be read as a reference to “two working days”.
38.2(2.22)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (2.2) shall be read as a reference to “one working day”.
(b) by adding after subsection (2.5) the following:
38.2(2.51)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (2.5) shall be read as a reference to “two working days”.
38.2(2.52)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (2.5) shall be read as a reference to “one working day”.
(c) by repealing subsection (5) and substituting the following:
38.2(5)Compensation under this section is payable until the earliest of the following events:
(a) the loss of earnings resulting from the injury by accident ceases;
(b) the worker attains the age of 65 years;
(c) the occurrence of a personal intervening condition not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation; or
(d) the occurrence of any circumstance not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation.
2(5)Section 41 of the Act is amended
(a) by repealing subsection (1) and substituting the following:
41(1)A worker entitled to compensation under this Part, or who would have been entitled to compensation had the worker been disabled for one day, shall be entitled, subject to subsection (3), to medical aid as a result of the accident.
(b) by repealing subsection (3) and substituting the following:
41(3)All questions as to the necessity, character and sufficiency of any medical aid under subsection (1) shall be determined by the Commission in its discretion.
(c) by repealing the heading “Refusal to submit to medical referee” preceding subsection (15) and substituting “When Commission may diminish or suspend compensation”;
(d) by repealing subsection (15) and substituting the following:
41(15)The Commission may in its discretion diminish the compensation to which a worker is entitled or suspend payment of the compensation in any of the following circumstances:
(a) the worker does not attend or participate in an examination when required to do so by the Commission under subsection (12) or obstructs the examination;
(b) the worker does not attend or participate in medical treatment or a rehabilitation program when the Commission considers it necessary for the worker’s treatment or rehabilitation; or
(c) the worker persists in dangerous and unsanitary practices imperilling or impeding the rehabilitation of the worker.
(e) by repealing the heading “Unsanitary practices” preceding subsection (16);
(f) by repealing subsection (16).
2(6)Subsection 54(1.1) of the Act is repealed and the following is substituted:
54(1.1)Despite subsection (1), in the event the Commission incurs a deficit in any fiscal year, the Commission shall take the necessary steps following the occurrence of the deficit to assess, levy and collect sufficient funds to fund the deficit within the period of time determined to be reasonable and prudent by the Commission in the circumstances, to a maximum of 15 years.
Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act
3Section 21 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, chapter W-14 of the Acts of New Brunswick, 1994, is amended
(a) by repealing subsection (3) and substituting the following:
21(3)Despite any other provision of this Act, the Workers’ Compensation Act and the Occupational Health and Safety Act, but subject to subsections 21(9) and (9.1) of this Act, the Appeals Tribunal shall have all of the authority conferred on the Commission under this Act, the Workers’ Compensation Act and the Occupational Health and Safety Act to examine into, hear and determine all matters affecting an employer, a worker or a dependent that arise in any appeal to it under subsection (1).
(b) by repealing subsection (3.1) and substituting the following:
21(3.1)Despite any other provision of this Act or the Firefighters’ Compensation Act, but subject to subsections 21(9) and (9.1) of this Act, the Appeals Tribunal shall have all of the authority conferred on the Commission under this Act and the Firefighters’ Compensation Act to examine into, hear and determine all matters affecting a firefighter or former firefighter or a dependant or a local government that arise in any appeal to it under subsection (1).
(c) by repealing subsection (8.2) and substituting the following:
21(8.2)Subject to subsections (9.8) and (9.9), the Appeals Tribunal may receive and accept information that it considers relevant, whether or not the information would be admissible in a court of law.
(d) by repealing subsection (9) and substituting the following:
21(9)In an appeal, the Appeals Tribunal shall
(a) make its decision on a case-by-case basis based on the real merits and justice of the particular case,
(b) apply a policy approved by the Commission that is applicable in the case, and
(c) not be bound to follow precedent.
(e) by adding after subsection (9) the following:
21(9.1)Until a different policy is approved by the Commission or a policy is amended by the Commission, every policy approved by the Commission under this Act is binding on the board of directors, every officer and employee of the Commission and on the Appeals Tribunal.
21(9.2)If, in an appeal, the Appeals Tribunal considers that a policy approved by the Commission is patently unreasonable, the Appeals Tribunal shall refer the policy, with written reasons, to the board of directors for a determination, and the appeal proceedings shall be suspended until the board of directors makes the determination.
21(9.3)As soon as possible after a policy is referred to it under subsection (9.2), the board of directors shall determine whether the policy is patently unreasonable.
21(9.4)If the board of directors determines that a policy referred to it under subsection (9.2) is not patently unreasonable, the board of directors shall provide written reasons to the Appeals Tribunal for its decision and refer the matter back to the Appeals Tribunal, and the Appeals Tribunal is bound by that determination.
21(9.5)If the board of directors determines that a policy referred to it under subsection (9.2) is patently unreasonable, the board of directors shall inform the Appeals Tribunal and shall review the policy and amend it accordingly.
21(9.6)After the board of directors completes a review under subsection (9.5), the board of directors shall provide the parties to the appeal and the Appeals Tribunal with written reasons for its decision and the amended policy and refer the matter back to the Appeals Tribunal, and the Appeals Tribunal is bound by that determination.
21(9.7)If an appeal is suspended under subsection (9.2) and there is no reasonable alternative to remedy the worker’s situation, the Appeals Tribunal may make any interim order
(a) to prevent the development of a permanent physical impairment or the increase of a permanent physical impairment,
(b) to aid the worker in recovering from the worker’s injury by accident, or
(c) to prevent an increase in the worker’s loss of earnings that can be directly attributed to his or her injury by accident.
21(9.8)If, in an appeal, new evidence becomes available or has been discovered that is substantial and material to the decision, order or ruling under consideration, before considering the new evidence, the Appeals Tribunal shall suspend the appeal and notify the Commission of the new evidence.
21(9.9)The Commission shall have 14 days after being notified of new evidence under subsection (9.8) to respond to the new evidence, following which the Appeals Tribunal may consider the new evidence.
(f) by repealing subsection (10) and substituting the following:
21(10)The Appeals Tribunal shall issue written reasons, signed by a member of the Appeals Tribunal hearing the appeal, for any decision, determination, direction, declaration, order, interim order or ruling of the Appeals Tribunal,
(a) if the appeal proceeds by oral hearing, within 90 days following the last hearing day, and
(b) if the appeal proceeds by written submission, within 90 days following the filing of all required documents.
(g) by repealing subsection (12.2).
CONSEQUENTIAL AND TRANSITIONAL PROVISIONS
Workers’ Compensation Act
4(1)On July 1, 2021, section 38.11 of the Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended
(a) by repealing subsection (3);
(b) by repealing subsection (4);
(c) by repealing subsection (5);
(d) by repealing subsection (6);
(e) by repealing subsection (7);
(f) by repealing subsection (8);
(g) by repealing subsection (8.1);
(h) by repealing subsection (9) and substituting the following:
38.11(9)Despite subsection (2), when a worker has not received remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source in respect of an injury by accident or recurrence of an injury by accident and the worker commences to receive compensation under subsection (2), there shall be payable to the worker only that portion of compensation which, when combined with the amount of any remuneration received by the worker from the employer or any income replacement or supplement benefit received by the worker from the employer or from an employment-related source, does not exceed eighty-five per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid.
(i) by repealing subsection (10);
(j) by repealing subsection (11).
4(2)On July 1, 2021, section 38.2 of the Act is amended
(a) by repealing subsection (2.2);
(b) by repealing subsection (2.3);
(c) by repealing subsection (2.4);
(d) by repealing subsection (2.5) and substituting the following:
38.2(2.5)Despite subsection (2.1), when a worker has not received remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source in respect of an injury by accident or recurrence of an injury by accident and the worker commences to receive compensation under subsection (2.1), there shall be payable to the worker only that portion of compensation which, when combined with the amount of any remuneration received by the worker from the employer or any income replacement or supplement benefit received by the worker from the employer or from an employment-related source, does not exceed
(a) in the first thirty-nine weeks from the day of the injury by accident or recurrence of the injury by accident, eighty per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid, and
(b) thereafter, eighty-five per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid.
(e) by repealing subsection (2.7);
(f) by repealing subsection (2.8).
Transitional provision
5If, immediately before the commencement of this section, a decision was under appeal before the Appeals Tribunal and the hearing has commenced, the Appeals Tribunal shall complete the hearing in accordance with the law as it existed immediately before the commencement of this section.