2013 2016 legislative review of2013 discussion paper 1 post-secondary education, training and labour...

2013 – 2016

Legislative Review of

Workers’ Compensation

2013 Discussion Paper

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Post-Secondary Education, Training and Labour / WorkSafeNB

Introduction

• The concept of modern workers' compensation had its origins in

Germany, Great Britain and the United States during the late

1800's and early 1900's.

• In Canada, workers' compensation had its beginnings in the

Province of Ontario when Chief Justice William Meredith was

appointed to a Royal Commission to study workers' compensation

in 1910.

• The Meredith Report outlined a trade-off in which workers

relinquish their right to sue their employer in exchange for

compensation benefits.

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http://www.awcbc.org/common/assets/english pdf/meredith_report.pdf




Introduction (Con’t)

There are five basic cornerstones to the original workers' compensation laws

which continue as founding principles, they are known as the „Meredith

Principles‟:

1. No-fault compensation

2. Collective liability

3. Security of payment

4. Exclusive jurisdiction

5. Independent board

The first Workmen’s Compensation Act in New Brunswick received Royal

Assent in 1918.

Over the years, the scope and coverage of workers‟ compensation legislation

has expanded to include a greater percentage of the labour force, increased

maximum insurable earnings and percentage of wages paid, and expansion

of services in the field of medical aid, rehabilitation and retraining.

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New Brunswick’s 2013 - 2016 Legislative

Review of the Workers’ Compensation System

WorkSafeNB and the Department of Post-Secondary Education, Training

and Labour have embarked on a comprehensive review of New

Brunswick‟s workers‟ compensation legislation, which will be a multi-stage

approach occurring over the next three years.

The legislation has not undergone a thorough review in more than twenty

(20) years, and the legislation requires modernization and efforts towards

“plain language”.

The objective of the review is:

– to ensure that the workers‟ compensation system addresses the needs

and realities of current and future workplaces; and

– to strike the right balance between adequate compensation for injured

workers and employers‟ fiscal interests.

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New Brunswick’s 2013 - 2016 Legislative

Review of the Workers’ Compensation System

(con’t)

Stage 1 (2013-14) will focus on a review of the following components of two

governing Acts:

Workers Compensation Act (WC Act):

1. The calculation of Benefits under section 38.11(9).

2. The determination of the merits of introducing a dispute

resolution mechanism relating to processes and procedures.

Workplace Health, Safety Compensation Commission Act

(WHSCC Act):

3. The governance structure and mandate related to the

Appeals Tribunal.

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http://laws.gnb.ca/en/ShowPdf/cs/W-14.pdf

1. Calculation of Benefits under section

38.11(9) of the WC Act

Why are we focussing on this area in the existing

Legislation?

The legislative review is focussing on section 38.11(9) of the WC Act because

it has been amended multiple times over the last twenty years, which now

requires an effort towards “plain language”.

The Stage 1 (2013-2014) legislative review seeks to:

• communicate in “plain language” section 38.11(9) to make it easier to

understand;

• receive stakeholder views regarding the treatment of loss of workers‟

compensation earnings benefits and other sources of income: and

modernize the Act.

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38.11(9) of the WC Act (con’t)

Currently, section 38.11(9),of the WC Act reads as follows:

38.11(9)Notwithstanding subsection (2), where 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 the injury or recurrence of the injury for a period of time

after the injury or recurrence of the injury that is equivalent to three working days and where 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.

Workers‟ compensation benefits have been subject to reductions due to other

sources of employment related income referred to as “supplements”.

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In 2012, the New Brunswick Court of Appeal was requested to

interpret the WC Act. The Court determined that Canada Pension

Plan Retirement is not considered as employment related income

and should not reduce loss of earnings benefits.

The Court continued by noting that other forms of “pension

benefits” should not be considered as “supplements” (J.D. Irving vs.

Douthwright and Workplace Health, Safety and Compensation

Commission).

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How might the legislation be improved?

Section 38.11(9) of the WC Act could be improved by being re-drafted in “plain

language,” as it would make the section easier to understand, thereby ensuring

that benefits are distributed in accordance with governing legislation.

Also, re-writing the legislation in plain language would help modernize the WC

Act that has not had a thorough review in over 20 years.

It is important that section 38.11(9) of the WC Act be modernized and that it

maintain the balance between proper and just compensation to injured workers

while providing support to help them safely return to work, and at the same time,

respecting employers‟ fiscal interests.

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38.11(9) the WC Act - Questions

We welcome your feedback for legislative change

considerations! Please provide detailed reasons for your

suggestions.

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1. How would you balance compensating an injured worker for their

loss while providing proper support to help their safe return to

work?

2. How would you distinguish in legislation , between different types

of employment related income and how they are to be treated in

the determination of loss of earnings benefits?

2. Determine the merits of introducing a

dispute resolution mechanism relating to

processes and procedures.

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Why are we focussing on this area in the existing

Legislation?

New Brunswick‟s legislation provides access to the Appeals Tribunal,

Workers‟ and Employers‟ Advocates, and the provincial Ombudsman office to

assist the parties with their rights under the workers‟ compensation system.

However, we do not have an ombudsman-like mechanism to assist

stakeholders in administrative and communication matters.

The three main principles that guide an independent ombudsman-like

mechanism are impartiality, confidentiality and independence.



processes and procedures

How might the legislation be improved?

Other jurisdictions provides an internal fair practice office (ombudsman-like

office) within the workers‟ compensation structure. There may be merit to

introducing such a mechanism here in New Brunswick.

Manitoba Fair Practice Office:

http://www.fairpracticesofficemb.ca/

British Columbia’s Workers’ Compensation Appeals Tribunal:

http://www.wcat.bc.ca/

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http://www.wcat.bc.ca/



processes and procedures

A fair practice office in New Brunswick would be guided by three

principles:

Impartiality: by reviewing all issues impartially to make recommendations

that promote fair practice;

Confidentiality: by receiving inquiries and ensuring that they are handled

confidentially; and

Independence: by serving injured workers, employers, and WorkSafeNB

but works independently in the interest of fairness.

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processes and procedures - Questions



suggestions.

Compose 1-4 specific questions (what, how, why, etc.)

Maximum 1 slide

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1. Is there merit to introducing a fair practice office within the

workers’ compensation structure in New Brunswick?

2. If so, what option(s) do you suggest to change the legislation

regarding a “fair practices” mechanism and why?

3. Governance Structure and Mandate related

to the Appeals Tribunal under the WHSCC ActWhy are we focussing on this area in the existing

Legislation?

The WHSCC Act states that the Appeals Tribunal operates internally, however for decision

making purposes, it operates at arms length to preserve the principles of natural justice (the

right to a fair hearing).

A challenge exists when WorkSafeNB‟s Board of Directors and the Appeals Tribunal have

differing views respecting Board policy.

Currently, the WHSCC Act states at section 21 that the final authority of WorkSafeNB‟s

decisions rests with the Appeals Tribunal. Section 21 (11) provides that any decision of the

Appeals Tribunal shall be a decision of WorkSafeNB:

“Any decision, determination, direction, declaration, order, interim order or ruling of, or

any act or thing done by a panel of the Appeals Tribunal shall be a decision,

determination, direction, declaration, order, interim order or ruling of, or an act or thing

done by the Commission.”

This means that WorkSafeNB is bound by all of the Appeals Tribunal decisions.

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to the Appeals Tribunal under the WHSCC Act

(Con’t)

The Appeals Tribunal is an integral part of the Workers Compensation System,

providing a forum to review decisions affecting workers and employers, and

with each case decided on its individual merits.

However, when the Appeals Tribunal questions whether a Board Policy can be

supported by legislation, the current structure, as established by legislation,

does not provide a mechanism for this difference to be resolved.

The Court of Appeal in its 2012 decision Sanford v. Workplace Health and

Safety Compensation Commission, noted that “perhaps the time has come for

the Legislature to consider the implications of s. 21(11)”.

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http://www.canlii.org/en/nb/nbca/doc/2012/2012nbca86/2012nbca86.pdf

















to the Appeals Tribunal under the WHSCC Act

(con’t)How might the legislation be improved?

The legislative review is seeking to clearly distinguish the roles and

responsibilities of the Board of Directors and the Appeals Tribunal to ensure

that the interests of all stakeholders are met.

Other Canadian jurisdictions have alternative structures. All Provinces,

except New Brunswick and Saskatchewan, have created external appeals

tribunals to operate more independently from their respective workers‟

compensation commissions. The following is a time line when other

jurisdictions established external appeal tribunals.

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AlbertaOntario

1985 present20021990

Manitoba

2000

Yukon

1996

Nova Scotia

1995

PEI

1986

NL British Columbia


to the Appeals Tribunal - Questions



suggestions.

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1. What workers’ compensation appeal structure best meets all

stakeholder interests? Please provide reasons.

2. What other changes to the appeal system would you like to see

included in the legislative review?

Need more information?

Minister’s Statement in the House:

http://www2.gnb.ca/content/gnb/en/news/statement/renderer.2013.04.2013-04-12b.html

Legislation:

Workers’ Compensation Act:


Workplace Health, Safety and Compensation Commission Act:


Comeau Report 2008:

http://www2.gnb.ca/content/dam/gnb/Departments/petl-

epft/PDF/Publications/StrengtheningtheSystem.pdf

Association of Workers’ Compensation Boards of Canada:

http://www.awcbc.org/en/

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http://www2.gnb.ca/content/dam/gnb/Departments/petl-epft/PDF/Publications/StrengtheningtheSystem.pdf







Please visit the following website (www.gnb.ca/consultations) for more

information on the following:

1. Calculation of Benefits under section 38.11(9) of the Workers’

Compensation Act.

Jurisdiction Comparison of workers compensation boards across Canada and their

calculations of supplemental income

J.D. Irving v. Douthwright and the WHSCC, 2012 NBCA 35.

2. Determine the merits of introducing a dispute resolution mechanism.

2011 report of the fair practices advocate

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http://www.gnb.ca/consultations




3. Governance structure and mandate related to the Appeals Tribunal.

New Brunswick‟s Current Appeals Process

Principles of Administrative Justice

Jurisdictional comparison of Canadian workers‟ compensation systems

and their appeals tribunals‟ structure and composition.

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Case Law:



• D.W. v. WHSCC, 2005 NBCA 70

• Stewart v. WHSCC, 2010 NBCA 67

• Sanford v. WHSCC, 2012 NBCA 86

• Naudeau v. New Brunswick (Workplace Health, Safety and Compensation

Commission) [1997} N.B.J. No. 122 (NBCA)

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We Invite Your Comments / Briefs

We invite New Brunswick residents and all stakeholders to submit comments / briefs on

the questions to consider on the previous pages or other information presented in this

document.

Comments or briefs may be submitted up to September 5, 2013.

Online: www.gnb.ca/consultations

Mail: Legislative Review of Workers‟ Compensation

P.O. Box 6000, 470 York Street

Fredericton, NB E3B 1X6

Fax: 506-453-2148

E-mail: [email protected]

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mailto:[email protected]

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