Legislative Review of Workers Compensation Discussion Paper. Post-Secondary Education, Training and Labour / WorkSafeNB

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1 Legislative Review of Workers Compensation 2013 Discussion Paper Post-Secondary Education, Training and Labour / WorkSafeNB 1

2 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 The Meredith Report outlined a trade-off in which workers relinquish their right to sue their employer in exchange for compensation benefits. 2

3 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 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. 3

4 New Brunswick s 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. 4

5 New Brunswick s Legislative Review of the Workers Compensation System (con t) Stage 1 ( ) 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. 5

6 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 ( ) 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. 6

7 1. Calculation of Benefits under section 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. 7

8 1. Calculation of Benefits under section 38.11(9) of the WC Act (con t) 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). 8

9 1. Calculation of Benefits under section 38.11(9) of the WC Act (con t) 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. 9

10 1. Calculation of Benefits under section 38.11(9) the WC Act - Questions We welcome your feedback for legislative change considerations! Please provide detailed reasons for your suggestions. 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? 10

11 2. Determine the merits of introducing a dispute resolution mechanism relating to processes and procedures. 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. 11

12 2. Determine the merits of introducing a dispute resolution mechanism relating to 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: British Columbia s Workers Compensation Appeals Tribunal: 12

13 2. Determine the merits of introducing a dispute resolution mechanism relating to 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. 13

14 2. Determine the merits of introducing a dispute resolution mechanism relating to processes and procedures - Questions We welcome your feedback for legislative change considerations! Please provide detailed reasons for your suggestions. Compose 1-4 specific questions (what, how, why, etc.) 1. Is there merit to introducing a fair practice office within the workers compensation structure in New Brunswick? Maximum 1 slide 2. If so, what option(s) do you suggest to change the legislation regarding a fair practices mechanism and why? 14

15 3. Governance Structure and Mandate related to the Appeals Tribunal under the WHSCC Act Why 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. 15

16 3. Governance Structure and Mandate related 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). 16

17 3. Governance Structure and Mandate related 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 present Ontario NL Manitoba PEI Nova Scotia Yukon Alberta British Columbia 17

18 3. Governance Structure and Mandate related to the Appeals Tribunal - Questions We welcome your feedback for legislative change considerations! Please provide detailed reasons for your suggestions. 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? 18

19 Need more information? Minister s Statement in the House: Legislation: Workers Compensation Act: Workplace Health, Safety and Compensation Commission Act: Comeau Report 2008: Association of Workers Compensation Boards of Canada: 19

20 Need more information? Please visit the following website ( 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 Determine the merits of introducing a dispute resolution mechanism report of the fair practices advocate 20

21 Need more information? Please visit the following website ( for more information on the following: 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. 21

22 Need more information? Case Law: Please visit the following website ( for more information on the following: 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) 22

23 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, Online: Mail: Legislative Review of Workers Compensation P.O. Box 6000, 470 York Street Fredericton, NB E3B 1X6 Fax:

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