10(1)Subject to section 11, where an accident occurs to a worker in the course of his employment in such circumstances as to entitle him or his dependents to an action against some person other than his employer, the worker or his dependents, if entitled to compensation under this Part, may either claim compensation or bring the action.
Settlement by worker deemed action
10(2)Where an accident occurs to a worker in the course of his employment in such circumstances as to entitle him or his dependents to an action against some person other than his employer and the worker or his dependents collect any amount from the person against whom the action may be brought before the action is brought, they shall be deemed for the purposes of this section to have brought an action.
10(3)The election referred to in subsection (1) shall be made and notice of it given to the Commission within three months of the accident or such longer period as the Commission may allow.
Inability of worker to make election
10(4)Where the Commission is satisfied that due to his physical or mental disability, a worker is unable to make an election under subsection (1), and undue hardship will result, it may pay the compensation provided under this Part until he is able to make that election.
Inability of worker to make election
10(5)Where the Commission pays compensation under subsection (4) and when he is able to make an election under subsection (1), the worker elects not to claim compensation, the Commission shall pay no further compensation and the compensation paid prior to the election shall be a first charge against any sum recovered.
Election on behalf of minor
10(6)A parent, guardian or a person who has had placed under his care a deceased worker’s child who is a minor may file an application for compensation for that child and that application is a valid election on behalf of that child.
Election by dependent spouse
(a)
is mentally incapable of making an election under subsection (1) and no committee has been appointed, or
(b)
is unconscious as a result of his injury,
his dependent spouse may make that election, but if no election is made within three months after the day of the injury, the Commission shall make the election on behalf of the injured worker.
Lesser recovery by action or settlement
10(8)Where a worker or his dependents bring an action and less is recovered and collected under the judgment in the action or by settlement than the amount of the compensation to which the worker or his dependents would be entitled under this Part, the worker or his dependents shall be entitled to compensation under this Part to the extent of the amount of that difference.
Lesser recovery by action or settlement
10(9)Subsection (8) applies only to a settlement that has been approved by the Commission in writing before it is made.
Subrogation of Commission
10(10)Where a worker or his dependents, or any of them have claimed compensation under this Part, the Commission shall be subrogated to all rights of that worker or dependents in respect of the injuries to the worker as against the person against whom the action lies, and may maintain an action in the name of the worker or his dependents or in the name of the Commission; and where more is recovered and collected than the amount of the compensation to which the worker or his dependents would be entitled under this Part, the amount of the excess, less costs and administration charges, shall be paid to the worker or his dependents, and that amount shall be deducted from the amount of any future compensation or other benefits to which he or they may become entitled in respect of the accident.
Right of action of Commission
10(11)The Commission has the exclusive right to determine whether it shall maintain an action, abandon it or compromise the right of action, and the decision of the Commission is final.
Negligence of employer or fellow worker
10(12)Where an action is brought by a worker, his dependents or by the Commission, and one or more of the persons found to be at fault or negligent is the employer of the worker, or any other employer within the scope of this Part, or any worker of that employer in the course of his employment at the time of the happening of the accident, and subsection 11(1) or section 12 applies, no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of that employer or worker, but the portion of the loss or damage caused by that fault or negligence shall be determined although that employer or worker is not a party to the action.
10(13)Where an action is brought by a worker, his dependents or the Commission, an award for damages shall include
(a)
medical aid provided under this Part, and
(b)
wages and salary paid by an employer during the period of disability for which regard has been had by the Commission, or would have been had if the worker had elected to claim compensation, in fixing the amount of a periodical payment of compensation or in determining to whom such payment is to be made.
10(14)Repealed: 2001, c.36, s.5 R.S., c.255, s.9; 1961-62, c.72, s.6; 1973, c.65, s.1; 1978, c.61, s.2; 1981, c.80, s.3; 1986, c.4, s.57; 1994, c.70, s.12; 2001, c.36, s.5