Acts and Regulations

2019, c.39 - An Act to Amend the Workers’ Compensation Act

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2019, c.39
An Act to Amend
the Workers’ Compensation Act
Assented to December 20, 2019
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
1Section 1 of the Workers’ Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended in the definition “medical aid” by striking out “injury” and substituting “injury by accident”.
2The Act is amended by adding after section 14 the following: 
Penalty for unlawful deductions
14.1An employer who contravenes section 14
(a) is liable to an administrative penalty imposed under section 82.1, and
(b) shall pay the worker any sum which has been deducted from the worker’s wages in contravention of that section or which the worker was required or permitted to pay in contravention of that section.
3Section 31 of the Act is amended by adding after subsection (2) the following: 
31(3)The Commission has jurisdiction to inquire into, hear and determine all matters and questions of fact and law necessary to determine whether an employer has fulfilled its obligations to a worker under section 42.4.
4Section 34 of the Act is amended
(a) in subsection (1) by striking out “Except as provided in sections 42.1 and 42.2” and substituting “Except as provided in section 42.3”;
(b) in subsection (2) by adding after paragraph (h) the following: 
(h.1) whether an employer has fulfilled its obligations to a worker under section 42.4;
5Subsection 38.11(16) of the Act is amended by striking out “shall provide necessary medical aid to the worker under section 41” and substituting “may provide necessary medical aid to the worker under section 41”.
6Subsection 38.2(7) of the Act is amended by striking out “shall provide necessary medical aid to the worker under section 41” and substituting “may provide necessary medical aid to the worker under section 41”.
7Section 41 of the Act is amended
(a) by striking out the heading “Right of worker to medical aid” preceding subsection (1) and substituting the following: 
Medical aid
(b) by repealing subsection (1) and substituting the following: 
41(1)The Commission may provide any medical aid that the Commission considers necessary as a result of a worker’s injury by accident to a worker entitled to compensation under this Part, or a worker who would have been entitled to compensation had the worker been disabled for one day.
(c) by striking out the heading “By whom medical aid furnished” preceding subsection (2);
(d) by repealing subsection (2) and substituting the following: 
41(2)The medical aid referred to in subsection (1) shall be
(a) furnished or arranged for by the Commission as it may direct or approve,
(b) subject to the supervision and control of the Commission, and
(c) paid for out of the Accident Fund.
(e) by adding after subsection (2) the following: 
41(2.1)The Commission shall include the costs of providing medical aid in the assessments levied on the employers.
(f) by striking out the heading “Necessity, character and sufficiency of medical aid” preceding subsection (3);
(g) by striking out the heading “Fees respecting medical aid” preceding subsection (4);
(h) by striking out the heading “Offence respecting contribution by worker to medical aid” preceding subsection (5);
(i) in subsection (5) by striking out “medical and dental aid and every person contravening this provision is, for every contravention liable to a penalty not exceeding fifty dollars” and substituting “medical aid and every person contravening this provision is liable to an administrative penalty imposed under section 82.1,”;
(j) by striking out the heading “Provision of medical aid arrangements by employer” preceding subsection (6);
(k) by striking out the heading “Provision of first aid by employer” preceding subsection (7);
(l) by striking out the heading “Transportation to medical aid” preceding subsection (8);
(m) in subsection (8) by striking out “is liable to a penalty not exceeding twenty dollars” and substituting “is liable to an administrative penalty imposed under section 82.1”;
(n) by striking out the heading “Workers’ contribution to medical aid scheme” preceding subsection (9);
(o) by striking out the heading “Furnishing of a medical report” preceding subsection (10);
(p) by striking out the heading “Sick Mariners’ Fund” preceding subsection (11);
(q) by striking out the heading “Duty of worker to take medical examination” preceding subsection (12);
(r) by repealing subsection (12);
(s) by striking out the heading “Reference to medical referee” preceding subsection (13);
(t) by repealing subsection (13);
(u) by striking out the heading “Certificate of medical referee” preceding subsection (14);
(v) by repealing subsection (14);
(w) by striking out the heading “When Commission may diminish or suspend compensation” preceding subsection (15);
(x) by repealing subsection (15).
8The Act is amended by adding after section 41 the following: 
Medical examination
41.1(1)A worker who claims compensation, or to whom compensation is payable under this Act, shall, if requested by the Commission, participate in an examination by a medical practitioner or medical practitioners chosen and paid by the Commission.
41.1(2)A medical practitioner who has examined a worker by direction of the Commission under subsection (1) shall report to the Commission on the condition of the worker and the worker’s fitness for employment, specifying, if necessary, the kind of employment and, if unfit, the cause of such unfitness.
41.1(3)A medical practitioner who has examined a worker under subsection (1) shall provide in each case a copy of the report to the worker’s attending physician.
Circumstances where Commission may diminish or suspend compensation
41.2The 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 41.1(1) 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;
(c) the worker does not cooperate in the worker’s own early and safe return to work by failing to comply with paragraph 42.6(2)(a), (b), (c) or (d); or
(d) the worker persists in dangerous or unsanitary practices imperilling or impeding the rehabilitation of the worker.
9The Act is amended by repealing the heading “Employer’s duty when worker suffers personal injury by accident” preceding section 42.1.
10Section 42.1 of the Act is repealed.
11The Act is amended by repealing the heading “Application of Employment Standards Act respecting section 42.1” preceding section 42.2.
12Section 42.2 of the Act is repealed.
13The Act is amended by adding before section 43 the following: 
No dismissal, suspension, lay off, penalty, discipline or discrimination as a result of injury by accident
42.3(1)No employer shall dismiss, suspend, lay off, penalize, discipline or discriminate against a worker because the worker suffered an injury by accident in respect of which the worker is, in the opinion of the Commission, entitled to make application for compensation under this Part.
42.3(2)An employer is bound by subsection (1) from the date of the worker’s injury by accident until the later of the following: 
(a) the date the Commission renders its decision with respect to the application for compensation; and
(b) for a period of
(i) one year after the date the worker was entitled to compensation under this Part, if the employer employed fewer than 20 workers at the beginning of that period, or
(ii) two years after the date the worker was entitled to compensation under this Part, if the employer employed 20 or more workers at the beginning of that period.
42.3(3)Subsections (1) and (2) shall be deemed to be provisions of Part 3 of the Employment Standards Act and shall be enforced in accordance with that Act as if they were provisions of that Act.
42.3(4)Any person who believes that an employer has violated or failed to comply with subsection (1) may make a complaint in accordance with Part 5 of the Employment Standards Act.
42.3(5)A complaint referred to in subsection (4) shall be disposed of in accordance with the provisions of the Employment Standards Act and, subject to subsection (6), the provisions of that Act apply with the necessary modifications with respect to the complaint.
42.3(6)Sections 4 and 8 of the Employment Standards Act do not apply with respect to a complaint referred to in subsection (4).
42.3(7)Any order issued with respect to a complaint referred to in subsection (4) may be enforced in accordance with the provisions of the Employment Standards Act.
42.3(8)If a complaint referred to in subsection (4) is found to be valid, the rights of the worker under subsection (1) shall not be prejudiced by the expiration of the period of time under subsection (2).
42.3(9)For the purposes of this section,
(a) any worker within the meaning of this Act who would not otherwise be an employee within the meaning of the Employment Standards Act shall be deemed to be an employee within the meaning of that Act, and
(b) any employer within the meaning of this Act who would not otherwise be an employer within the meaning of the Employment Standards Act shall be deemed to be an employer within the meaning of that Act.
Employer’s duty to re-employ injured workers
42.4(1)In this section and in section 42.6, “suitable work” means appropriate work that a worker who suffered an injury by accident is capable of doing, considering the worker’s functional abilities and employment qualifications and that does not endanger the health, safety or well-being of the worker.
42.4(2)An employer shall offer to re-employ a worker
(a) who has been unable to work as a result of suffering an injury by accident in respect of which the worker was entitled to compensation under this Part,
(b) who had been employed by the employer for at least 12 continuous months on the date of the injury by accident, and
(c) who, in the opinion of the Commission, is medically able
(i) to perform the essential duties of the worker’s pre-injury-by-accident employment, or
(ii) to perform suitable work.
42.4(3)An employer shall accommodate the work, the workplace or both for a worker to the extent that the accommodation does not cause the employer undue hardship.
42.4(4)When a worker is medically able to perform the essential duties of the worker’s pre-injury-by-accident employment, the employer shall
(a) offer to re-employ the worker in the position that the worker held on the date of the injury by accident, or
(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker’s employment on the date of the injury by accident.
42.4(5)When a worker is medically able to perform suitable work but is unable to perform the essential duties of the worker’s pre-injury-by-accident employment, the employer shall offer to provide the worker suitable work to the extent that the accommodation does not cause the employer undue hardship.
42.4(6)An employer is obligated under this section  
(a) for a period of one year after the date a worker was entitled to compensation under this Part, if the employer employed fewer than 20 workers at the beginning of that period, or
(b) for a period of two years after the date a worker was entitled to compensation under this Part, if the employer employed 20 or more workers at the beginning of that period.
42.4(7)If an employer re-employs a worker in accordance with this section and then dismisses the worker, the employer is presumed not to have fulfilled the employer’s obligations under this section if the worker is dismissed
(a) within six months after re-employment, if, at the time of re-employment, the worker is no longer receiving compensation under this Part, or
(b) within six months after ceasing to receive compensation, if, at the time of re-employment, the worker is no longer receiving compensation under this Part.
42.4(8)An employer may rebut the presumption in subsection (7) by showing that the dismissal was not related to the worker’s injury by accident.
42.4(9)If an employer satisfies the Commission that the employer’s decision was for a business reason made in good faith and that the decision was not affected by the worker being or having been unable to work as a result of suffering an injury by accident, nothing in this section prevents an employer from deciding to
(a) refuse to offer to re-employ a worker,
(b) refuse to continue to employ a worker,
(c) dismiss, lay off or suspend a worker, or
(d) alter the status of or transfer a worker.
42.4(10)If this section conflicts with a provision of a collective agreement that is binding on the employer and if the employer’s obligations under this section afford the worker greater re-employment terms than does the collective agreement, this section prevails.
Enforcement of obligations under section 42.4
42.5(1)On the request of an employer or a worker or on its own initiative, the Commission shall determine whether an employer has fulfilled the employer’s obligations to a worker under section 42.4.
42.5(2)The Commission shall make a determination under subsection (1) within 60 days after receiving a request or within a longer period allowed by the Commission.
42.5(3)The Commission is not required to make a determination under subsection (1) at the request of a worker who has been re-employed if
(a) the re-employed worker is dismissed within six months, and
(b) the worker’s request is provided to the Commission more than three months after the date of dismissal.
42.5(4)If the Commission determines that an employer has not complied with its obligations under section 42.4, the employer is liable to an administrative penalty imposed under section 82.1.
42.5(5)If a worker is in receipt of compensation or benefits payable by the Commission under section 38.11 or 38.2, neither shall be reduced or suspended while the Commission is making a determination under this section.
42.5(6)For greater certainty, a dispute concerning the fulfilment of an employer’s obligations under section 42.4 does not constitute an event for the purposes of subsection 38.11(14) or 38.2(5).
Early and safe return to work
42.6(1)The employer of an injured worker shall cooperate in the early and safe return to work of the worker by
(a) contacting the worker and the Commission as soon as the circumstances permit after the injury by accident occurs and maintaining communication throughout the period of the worker’s recovery and impairment,
(b) offering to provide the worker suitable work in accordance with its obligations under section 42.4,
(c) cooperating with the Commission in any Commission-sanctioned program for returning to work that the Commission considers necessary to promote the worker’s rehabilitation, and
(d) giving the Commission any information requested concerning the worker’s return to work.
42.6(2)An injured worker shall cooperate in the worker’s own early and safe return to work by
(a) contacting the employer and the Commission as soon as the circumstances permit after the injury by accident occurs and maintaining communication throughout the period of the worker’s recovery and impairment,
(b) cooperating with the employer when the employer is attempting to provide suitable work in accordance with paragraph (1)(b),
(c) cooperating with the Commission in any Commission-sanctioned program for returning to work that the Commission considers necessary to promote the worker’s rehabilitation, and
(d) giving the Commission any information requested concerning the worker’s return to work.
42.6(3)The Commission may diminish the compensation that an injured worker is entitled to or suspend payment of the compensation under section 41.2 if the worker fails to comply with paragraph (2)(a), (b), (c) or (d).
14Section 44 of the Act is amended
(a) by adding after subsection (4.1) the following: 
44(4.2)An employer who fails to provide the notice under subsection (4) within the time limit in subsection (4.1) is liable to an administrative penalty imposed under section 82.1.
(b) by adding after subsection (5) the following: 
44(5.01)An employer who fails to make a report required by the Commission under subsection (5) is liable to an administrative penalty imposed under section 82.1.
15Section 53 of the Act is amended
(a) in subsection (5) by striking out “shall incur a penalty not exceeding five hundred dollars” and substituting “is liable to an administrative penalty imposed under section 82.1”;
(b) in subsection (10) by striking out “liable to a penalty not exceeding five hundred dollars” and substituting “liable to an administrative penalty imposed under section 82.1”.
16Subsection 53.1(3) of the Act is amended by striking out “liable to a penalty not exceeding five hundred dollars” and substituting “liable to an administrative penalty imposed under section 82.1”.
17The Act is amended by adding after section 77 the following: 
Obstruction of Commission or authorized person – examination
77.1(1)No person shall obstruct or interfere with a member or officer of the Commission or person authorized by the Commission who is carrying out or attempting to carry out an examination or inquiry under section 77.
77.1(2)A person who contravenes subsection (1) is liable to an administrative penalty imposed under section 82.1.
18The Act is amended by adding after section 78 the following: 
Obstruction of Commission or authorized person – inspection
78.1(1)No person shall obstruct or interfere with a member or officer of the Commission or person authorized by the Commission who is carrying out or attempting to carry out an inspection under section 78.
78.1(2)A person who contravenes subsection (1) is liable to an administrative penalty imposed under section 82.1.
19Section 81 of the Act is amended
(a) by repealing paragraph (a);
(b) by adding before paragraph (f) the following: 
(e.3) prescribing information for the purposes of paragraph 82.1(5)(e);
20The heading “PENALTIES” preceding section 82 of the Act is repealed and the following is substituted: 
ADMINISTRATIVE PENALTIES
21The Act is amended by repealing the heading “Penalties” preceding section 82.
22Section 82 of the Act is repealed.
23The Act is amended by adding before the heading “WORKER’S AND EMPLOYER’S ADVOCATES” the following: 
Administrative penalties
82.1(1)The Commission may impose an administrative penalty in respect of a contravention of the following provisions: 
(a) section 14;
(b) subsection 41(5);
(c) subsection 41(8);
(d) section 42.4;
(e) subsection 44(4);
(f) subsection 44(4.1);
(g) subsection 44(5);
(h) subsection 53(1);
(i) subsection 53(2);
(j) subsection 53(3);
(k) subsection 53(9);
(l) subsection 53.1(1);
(m) subsection 53.1(2);
(n) subsection 77.1(1);
(o) subsection 78.1(1).
82.1(2)Subject to subsection (3), an administrative penalty payable for a contravention of a provision set out in subsection (1) may be in an amount
(a) up to $500 for a first contravention,
(b) up to $2,000 for a second contravention, and
(c) up to $10,000 for a third or subsequent contravention.
82.1(3)An administrative penalty payable for a contravention of section 42.4 may be in an amount up to the worker’s average net earnings for the 12-month period immediately before the injury by accident.
82.1(4)In subsection (3), “average net earnings” means the average earnings of the worker less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings.
82.1(5)The Commission shall impose an administrative penalty by issuing a notice of administrative penalty that includes the following information: 
(a) a description of the alleged contravention;
(b) the amount of the administrative penalty and the consequences for failing to respond to the notice;
(c) when and how to pay the administrative penalty;
(d) a statement that the person may
(i) request a review by the Commission of the administrative penalty by sending a request for review in accordance with section 19.11 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act within 14 days after being served the notice, and
(ii) appeal the decision made by the Commission in a review referred to in subparagraph (i) under section 21 of the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act within seven days after being provided written reasons for the decision;
(e) any other information prescribed by regulation.
82.1(6)A notice of administrative penalty shall not be issued more than one year after the Commission first had knowledge of the contravention.
82.1(7)The Commission shall serve a notice of administrative penalty on the person to whom it is directed
(a) in the manner in which personal service may be made under the Rules of Court, or
(b) by registered mail to the person’s latest known address.
82.1(8)An administrative penalty is payable to the Commission and shall form part of the Accident Fund.
82.1(9)An administrative penalty is an amount owing under this Act and becomes a debt due to the Commission.
82.1(10)The Commission may issue a certificate stating the amount of a debt due and the name of the debtor.
82.1(11)A certificate issued under subsection (10) may be filed in The Court of Queen’s Bench of New Brunswick and entered and recorded in the Court and when entered and recorded may be enforced as a judgment obtained in the Court by the Commission against the person named in the certificate for a debt of the amount specified in the certificate.
82.1(12)All reasonable costs and charges resulting from the filing, entering and recording of a certificate under subsection (11) may be recovered as if the amount had been included in the certificate.
CONSEQUENTIAL AMENDMENTS
AND COMMENCEMENT
Employment Standards Act
24Subsection 44.021(4) of the Employment Standards Act, chapter E-7.2 of the Acts of New Brunswick, 1982, is amended by striking out “under section 42.1” and substituting “under section 42.3 or 42.4”.
Regulations under the Workers’ Compensation Act
25(1)New Brunswick Regulation 84-66 under the Workers’ Compensation Act is amended
(a) by repealing section 5;
(b) by repealing section 6;
(c) by repealing section 7;
(d) by repealing section 8;
(e) by repealing section 9;
(f) by repealing section 10;
(g) by repealing section 11.
25(2)New Brunswick Regulation 82-13 under the Workers’ Compensation Act is amended in Form 1 by striking out “liable to a fine not exceeding twenty dollars per day for each day of such default, and is further”.
Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act
26(1)Subsections (2) and (3) shall be deemed to have come into force immediately after subsections 6(3) and (4) of An Act Respecting Addressing Recommendations in the Report of the Task Force on WorkSafeNB, chapter 16 of the Acts of New Brunswick, 2019, come into force.
26(2)On the commencement of this subsection, section 19.11 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 by adding after subsection (2) the following: 
19.11(2.1)A request for review of an administrative penalty imposed under section 82.1 of the Workers’ Compensation Act shall be made within 14 days after the notice of administrative penalty has been served.
26(3)On the commencement of this subsection, section 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) in subsection (1)
(i) in the portion preceding paragraph (a) by striking out “subsections (1.1), (1.11) and (2)” and substituting “subsections (1.1), (1.011), (1.11) and (2)”;
(ii) in paragraph (b) by adding “including a decision, order or ruling imposing or otherwise dealing with an administrative penalty imposed under section 82.1 of that Act,” after “or a dependent,”;
(b) by adding after subsection (1.1) the following: 
21(1.011)Despite subsection (1.1), an appeal under paragraph (1)(b) of a decision, order or ruling imposing or otherwise dealing with an administrative penalty imposed under section 82.1 of the Workers’ Compensation Act shall be made no later than seven days after the decision, ruling or order.
(c) by repealing subsection (1.11) and substituting the following: 
21(1.11)If a request for review is made under section 19.11,
(a) the one-year period referred to in subsection (1.1) commences on the date the person who requested the review is provided written reasons for the decision;
(b) the seven-day period referred to in subsection (1.011) commences on the date the person who requested the review is provided written reasons for the decision.
Commencement
27This Act comes into force on January 1, 2020.