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Third Session, Thirty-Ninth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.   It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications or view the online bilingual version (PDF).

Bill 36

THE MANITOBA PUBLIC INSURANCE CORPORATION AMENDMENT ACT (ENHANCED COMPENSATION FOR CATASTROPHIC INJURIES)


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P215 amended

1           The Manitoba Public Insurance Corporation Act is amended by this Act.

2(1)        Subsection 70(1) is amended by adding the following definition:

"catastrophic injury" means a catastrophic injury within the meaning of Schedule 4; (« lésion catastrophique »)

2(2)        Subsection 70(2) of the French version is amended

(a) in the section heading and the part after clause (b), by adding "industriel" after "salaire";

(b) in the part before clause (a),

(i) by adding "industriel" after "salaire",

(ii) by adding "industrielle" after "rémunération", and

(iii) by striking out "pour l'ensemble des activités économiques"; and

(c) in clause (b),

(i) by adding "industrielle" after "rémunération", and

(ii) by striking out "pour l'ensemble des activités économiques".

3           The following provisions of the French version are amended by adding "industriels" after "salaires":

(a) subsection 90(2);

(b) subsection 96(2);

(c) subsection 97(3);

(d) clause 114(2)(a).

4           The following provisions of the French version are amended by adding "industriel" after "salaire":

(a) subsection 91(3);

(b) clause 202(g).

5           The following is added after subsection 111(2):

Minimum I.R.I. — catastrophic injuries

111(3)      Despite subsection (2), the income replacement indemnity of a victim who suffers a catastrophic injury shall not be less than the amount of an income replacement indemnity computed on the basis of a gross yearly employment income determined on the basis of the industrial average wage.

Exceptions — students and minors

111(4)      Subsection (3) does not apply to a person who is a student or a minor.

When I.R.I. payments begin re catastrophic injury

111(5)      Despite any other provision of this Division, an income replacement indemnity that is payable to a victim who has suffered a catastrophic injury because of an accident is payable to him or her beginning the eighth day after the accident.

Application of subsection (3) to part-time earners and non-earners

111(6)      If, but for subsection (3), a victim would be entitled — during the first 180 days after the accident — to a weekly indemnity under subsection 132(1) and an income replacement indemnity under subsection 83(1) or clause 85(1)(b), he or she is entitled to the greater of

(a) the indemnity under subsection (3); or

(b) the indemnity under subsection 132(1), plus the indemnity under subsection 83(1) or clause 85(1)(b);

but not to both.

6           Section 124 is amended by renumbering it as subsection 124(1) and adding the following as subsection 124(2):

Effect of indexing between accident and death

124(2)      If, between the deceased victim's accident and his or her death, the maximum benefit set out in subsection (1) changes due to indexation under subsection 165(3), the maximum benefit payable under subsection (1) is the indexed amount.

7           Section 127 is amended by renumbering it as subsection 127(1) and adding the following as subsection 127(2):

Lump sum indemnity for catastrophic injury

127(2)      Subject to this Division and the regulations, a victim who suffers permanent physical or mental impairment because of a catastrophic injury resulting from an accident is entitled to a lump sum indemnity of $215,000. for the permanent impairment.

8           Subsection 128(1) is replaced with the following:

Effect of death on compensation

128(1)      Compensation for a permanent impairment is not payable if, on or before the 89th day after the day of the accident, the victim dies of a cause related to the accident.

9           The following is added after subsection 129(1):

Evaluation of permanent impairment when victim dies

129(1.1)    If a victim dies before the degree of his or her permanent impairment has been determined, the corporation shall, unless subsection 128(1) applies, estimate the degree of his or her permanent impairment, taking into consideration the available medical information about the victim and any other information about the victim and his or her injuries that the corporation considers relevant.

10          Section 130 is amended

(a) by striking out "under this Division for a permanent impairment" and substituting "under section 127 for a permanent impairment, other than one resulting from a catastrophic injury,"; and

(b) by striking out "section 127" and substituting "subsection 127(1)".

11          Section 131 is amended by renumbering it as subsection 131(1) and adding the following as subsection 131(2):

Reimbursement when injury is catastrophic

131(2)      If

(a) it is determined that the victim suffered a catastrophic injury because of the accident; and

(b) he or she is entitled to the maximum reimbursement amount under subsection (1), but incurs expenses in excess of that amount for personal home assistance that he or she requires, in accordance with a determination made under the regulations;

the reimbursement allowance under that subsection shall be increased by a maximum of $800. per month.

12          Subsection 132(2) is amended by striking out everything after "any time that" and substituting "he or she is receiving an income replacement indemnity under clause 85(1)(a) or subsection 111(3)."

13          Subsection 134(1) is amended by striking out "or" at the end of clause (c), adding "or" at the end of clause (d) and adding the following after clause (d):

(e) is receiving an income replacement indemnity under subsection 111(3), even though he or she is a part-time earner or a non-earner.

14          The following is added after section 137 as part of Division 5:

Payment of certain expenses for catastrophically injured victims

137.1(1)    In the circumstances set out in subsection (2), the corporation may, in its discretion, pay an expense for the benefit of a catastrophically injured victim that, but for this section, it would not be authorized to pay.  This is subject to subsection (4) and the regulations.

When expenses may be paid

137.1(2)    The corporation may exercise its discretion under this section in the following circumstances:

(a) if the victim has reached the limit of his or her entitlement, if any, for reimbursement of the type of expense under other provisions of this Part, and the corporation

(i) is in the course of exercising its authority under section 150.1 on the victim's behalf but he or she has not yet been able to access funding or a service, and

(ii) is satisfied that it is advisable to pay the expense before the victim has access to the funding or service;

(b) if the victim has reached the limit of his or her entitlement, if any, for reimbursement of the type of expense under other provisions of this Part, under The Health Services Insurance Act and under any other Act, but the corporation is satisfied that payment of the expense will reduce the total of any amounts payable to the victim or on the victim's behalf under this Part by an amount that is at least equal to the amount of the expense paid;

(c) if payment of the expense is not otherwise provided for in this Part, but the corporation is satisfied that payment of the expense will reduce the total of any amounts payable to the victim or on the victim's behalf under this Part by an amount that is at least equal to the amount of the expense paid.

Corporation's consent required

137.1(3)    The corporation is not liable to pay an expense under subsection (1) unless the victim obtains the corporation's consent before incurring the expense.

Lifetime maximum of $1,000,000.

137.1(4)    Despite subsection (1), the corporation shall not pay expenses on a victim's behalf under this section in excess of the total sum of $1,000,000. over the victim's lifetime.

15          The following is added after section 150:

Facilitation of claims re catastrophic injuries

150.1(1)    If a victim is determined to have suffered a catastrophic injury or it appears to the corporation that such a determination is probable, the corporation is authorized to co-ordinate and facilitate any processes that may be necessary to secure the victim's access to funding or services

(a) that are provided by departments or agencies of the Government of Manitoba, the Government of Canada or a local government; and

(b) to which he or she may be entitled under The Health Services Insurance Act or another Act.

Co-operation of other agencies and organizations

150.1(2)    A department or agency referred to in subsection (1) must co-operate with the corporation in co-ordinating and facilitating the victim's access to the funding or services.

16          Subsection 169(1) is replaced with the following:

Jurisdiction of the corporation

169(1)      Subject to subsection 196(2) (appeal under this Part or Workers Compensation Act), the corporation has exclusive jurisdiction

(a) to decide any matter related to compensation under this Part; and

(b) to review any such decision, unless the decision is about a matter under section 137.1.

17          The following is added after subsection 170(2):

Non-application of subsection (2)

170(2.1)    Subsection (2) does not apply if the decision is about a matter under section 137.1.

18(1)       Subsection 172(1) is amended by striking out "A claimant" and substituting "Except as provided in subsection (1.1), a claimant".

18(2)       The following is added after subsection 172(1):

Non-application to decisions under section 137.1

172(1.1)    Subsection (1) does not apply if the decision is about a matter under section 137.1.

19          The following is added after section 175:

No appeal of decision under section 137.1

175.1       A decision by the corporation about any matter under section 137.1 may not be appealed by the claimant to the commission.

20          The following is added after section 202:

Regulations by Lieutenant Governor in Council

202.1       The Lieutenant Governor in Council may make regulations

(a) respecting the corporation's payment of expenses under section 137.1, including, but not limited to, regulations

(i) providing guidance to the corporation on the exercise of its discretion under that section or restricting its discretion, and

(ii) prescribing kinds of expenses that the corporation may or may not pay under that section;

(b) for the purpose of clause 1(h) of Schedule 4, prescribing injuries, or combinations of injuries, as catastrophic injuries;

(c) amending the description of injuries that constitute catastrophic injuries set out in Schedule 4;

(d) respecting any transitional or other problem resulting from the enactment of any of the following provisions of this Act:

(i) the definition "catastrophic injury" set out in subsection 70(1),

(ii) subsections 111(3) to (6), 127(2), 128(1), 129(1.1) and 131(2),

(iii) clause 134(1)(e),

(iv) sections 137.1 and 150.1,

(v) Schedule 4.

21          Schedule 4 to this Act is added after Schedule 3.

Application to existing claims

22(1)       Subject to subsections (2) to (4), an amendment set out in this Act applies to a victim who is alive when the amendment comes into force even though he or she suffered his or her injuries before the coming into force of the amendment.

22(2)       For the purposes of subsection 111(3), as enacted by section 5 of this Act, any increase — resulting from that subsection — in the income replacement indemnity of a victim who is receiving the indemnity when that subsection comes into force applies to the victim beginning on the day that this Act receives royal assent and is first payable as part of his or her first indemnity payment after that day.

22(3)       For the purposes of subsection 127(2), as enacted by section 7 of this Act, a victim — who suffered permanent physical or mental impairment because of a catastrophic injury resulting from an accident that occurred before the day this Act receives royal assent and who received a lump sum indemnity under section 127 of the former Act — is entitled to an additional lump sum indemnity equal to the difference between the indemnity amount set out in subsection 127(2) and the indemnity amount already received.

22(4)       Subsection 131(2), as enacted by section 11 of this Act, applies only in respect of expenses for personal home assistance incurred by a victim after the coming into force of this Act.

22(5)       In this section, "former Act" means The Manitoba Public Insurance Corporation Act, R.S.M. 1987, c. P215, as it read immediately before the coming into force of this Act.

Transitional provisions

23(1)       For the purpose of implementing this Act, the corporation may, subject to the approval of the Lieutenant Governor in Council, make regulations amending the regulations made under clause 202(k) of the Act retroactive to a date not earlier than the day on which this Act receives royal assent.

23(2)       If the corporation determines that a victim's entitlement to an indemnity or other benefit under Part 2 of the Act, as amended by this Act, cannot be determined until regulations are made under subsection (1), the corporation may delay the determination of the victim's entitlement and payment of the indemnity or benefit until the regulations are made.  If a delayed payment is in respect of a recurring indemnity or benefit, the corporation must, once the determination is made, pay the indemnity or benefit retroactive to the day that this Act receives royal assent or the day on which the victim became entitled to the indemnity or benefit, whichever is later.

Coming into force

24          This Act comes into force on the day it receives royal assent.

SCHEDULE 4 (Subsection 70(1))

When a person is catastrophically injured

1           For the purposes of Part 2 of this Act, a person is catastrophically injured if, within the meaning of the regulations made under clause 202(k), he or she suffers

(a) complete or incomplete quadriplegia or paraplegia that meets the criteria for classification as Grade A or B on the ASIA scale and is determined to result in a degree of permanent impairment of 65% or more;

(b) two or more of the following amputations:

(i) forequarter amputation of a shoulder and arm,

(ii) shoulder disarticulation,

(iii) above-elbow amputation of an arm, involving the proximal third of the humerus,

(iv) above-elbow amputation of an arm, involving the middle or distal third of the humerus,

(v) hemipelvectomy,

(vi) hip disarticulation, involving the proximal third of the femur,

(vii) proximal, mid-thigh or distal above-knee amputation of a leg;

(c) loss of vision that is determined to result in a degree of permanent impairment of 80% or more;

(d) a functional alteration of the brain of any of the following types or any combination of them that is determined to result in a degree of permanent impairment of 50% or more:

(i) a communication disorder that

(A) results in the person's complete inability to understand and use language,

(B) does not affect the person's ability to understand linguistic symbols, but severely impairs his or her ability to use sufficient or appropriate language,

(C) does not affect the person's ability to understand linguistic symbols, but moderately impairs his or her ability to use sufficient or appropriate language, or

(D) results in minor communication difficulties,

(ii) an alteration of consciousness, such as stupor, coma or another disorder or disturbance, including adverse effects of medication, that prevents the person from performing the activities of daily living to such an extent that he or she requires continuous supervision in an institutional or confined setting,

(iii) an alteration of consciousness, including adverse effects of medication, that

(A) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires periodic supervision in an institutional or confined setting for 50% or more of the time,

(B) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires periodic supervision in an institutional or confined setting for less than 50% of the time,

(C) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires supervision but not in an institutional or confined setting, or

(D) impairs the person's ability to perform the activities of daily living but not to such an extent that he or she requires supervision,

(iv) an alteration of the higher cognitive or integrative mental functions, including adverse effects of medication, that

(A) prevents the person from performing the activities of daily living to such an extent that he or she requires continuous supervision in an institutional or confined setting,

(B) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires periodic supervision in an institutional or confined setting for 50% or more of the time,

(C) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires periodic supervision in an institutional or confined setting for less than 50% of the time,

(D) impairs the person's ability to perform the activities of daily living to such an extent that he or she requires supervision but not in an institutional or confined setting, or

(E) impairs the person's ability to perform the activities of daily living but not to such an extent that he or she requires supervision;

(e) an injury that results in a psychiatric condition, syndrome or phenomenon that, including adverse effects of medication,

(i) impairs the person's ability to perform the activities of daily living, ability to function socially or sense of well-being, to such an extent that he or she requires continuous supervision in an institutional or confined setting, or periodic supervision in such a setting for 50% or more of the time, and

(ii) is determined to result in a degree of permanent impairment of 70% or more;

(f) full-thickness burns resulting in consequential impairments, excluding scarring or disfigurement to all surface areas of the body other than the face, that are determined to result in a degree of permanent impairment of 75% or more;

(g) a combination of any of the following injuries that is determined to result in a degree of permanent impairment of 80% or more:

(i) an amputation referred to in clause (b),

(ii) one or more of the following amputations:

(A) elbow disarticulation, including amputation of the proximal third of the forearm,

(B) below the elbow amputation, involving the middle third of the forearm,

(C) wrist disarticulation, involving the distal third of the forearm,

(D) knee disarticulation, including proximal below-the-knee amputation, not suitable for a patellar tendon bearing prosthesis,

(E) below the knee amputation suitable for a patellar tendon bearing prosthesis,

(iii) incomplete quadriplegia or paraplegia that meets the criteria for classification as Grade C or D on the ASIA scale with partial preservation of motor power, whether or not there is sensory preservation and whether the total degree of permanent impairment under this subclause is the result of one or more permanent impairments,

(iv) loss of vision that is determined to result in a degree of permanent impairment of 50% or more but less than 80%,

(v) one or more of the following types of functional alteration of the brain that are determined to result in a degree of permanent impairment of 30% or more:

(A) inability to use both upper limbs for self-care with evidence of both proximal and distal upper-limb neurological dysfunction,

(B) inability to use one upper limb for self-care with evidence of both proximal and distal upper-limb neurological dysfunction,

(C) difficulty in using both upper limbs for self-care with evidence of either proximal or distal upper-limb neurological dysfunction bilaterally,

(D) difficulty in using one upper limb for self-care with evidence of either proximal or distal upper-limb neurological dysfunction,

(E) difficulty manipulating objects with impaired prehension confined to only one of the upper limbs, allowing independence in self-care,

(F) difficulty manipulating objects with no impairment in prehension in either upper limb, allowing independence in self-care,

(G) upper limb clumsiness with impaired prehension confined to only one of the upper limbs, allowing independence in self-care,

(H) upper limb clumsiness with no impairment in prehension in either upper limb, allowing independence in self-care,

(I) inability to stand or walk,

(J) ability to stand, but great difficulty or inability to walk,

(K) moderate difficulty in walking on irregular surfaces, stairways or uneven terrain,

(L) slight difficulty in walking,

(M) incontinence or urinary retention — complete loss of sphincter control,

(N) incontinence or urinary retention — partial loss of sphincter control,

(O) incontinence or urinary retention — dysfunction in the form of frequency or hesitancy,

(P) alteration of the bladder with or without enterocystoplasty,

(Q) a Class 1, 2 or 3 renal functional impairment,

(R) anorectal function — complete loss of control,

(S) anorectal function — limited control,

(T) a Class 1, 2 or 3 sexual dysfunction,

(U) one or more of the types of functional alteration of the brain referred to in paragraph (d)(i)(C) or (D), (d)(iii)(B) to (D) or (d)(iv)(C) to (E),

(vi) a peripheral nervous system injury involving all three trunks of the brachial plexus, with complete motor and sensory impairment, or a peripheral nervous system injury of one or more of the following types involving the brachial plexus:

(A) upper trunk (Erb-Duchenne syndrome), with complete motor and sensory impairment,

(B) middle trunk, with complete motor and sensory impairment,

(C) lower trunk (Klumpke-Déjerine syndrome), with complete motor and sensory impairment,

(vii) an injury that results in a psychiatric condition, syndrome or phenomenon that, including adverse effects of medication,

(A) impairs the person's ability to perform the activities of daily living, ability to function socially or sense of well-being to the extent that he or she requires periodic supervision in an institutional or confined setting for less than 50% of the time, and

(B) is determined to result in a degree of permanent impairment of 35%,

(viii) full-thickness burns resulting in consequential impairments, excluding scarring or disfigurement to all surface areas of the body other than the face, that are determined to result in a degree of permanent impairment of 40% or more; or

(h) another injury that is prescribed in the regulations as being a catastrophic injury.

Explanatory Note

This Bill amends the universal bodily injury compensation scheme in The Manitoba Public Insurance Corporation Act. The most significant amendments result in enhanced compensation for a person who suffers very serious injuries because of a motor vehicle accident. The Bill describes such injuries as catastrophic and sets out detailed criteria for determining when a person has been catastrophically injured. The enhanced compensation includes greater lump sum indemnities, enhanced income replacement indemnities and higher allowances for personal home assistance.

The Manitoba Public Insurance Corporation is given the discretion, in certain circumstances not otherwise covered by the Act, to pay expenses on behalf of a catastrophically injured person up to a maximum of one million dollars over his or her lifetime. As well, it is given the authority to co-ordinate and facilitate the person's access to funding and services provided by various levels of government.

The Bill also clarifies the effect of indexing on funeral expenses that are payable to a person who dies from his or her injuries. An injured person who survives for at least 90 days after the day of the accident but then dies of his or her injuries is now entitled to both a lump sum indemnity and a death benefit.