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This version is current as of October 17, 2014.
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C.C.S.M. c. W200

The Workers Compensation Act

WHEREAS Manitobans recognize that the workers compensation system benefits workers and employers in Manitoba;

AND WHEREAS Manitobans recognize that the historic principles of workers compensation should be maintained, namely

(a) collective liability of employers for workplace injuries and diseases;

(b) compensation for injured workers and their dependants, regardless of fault;

(c) income replacement benefits based upon loss of earning capacity;

(d) immunity of employers and workers from civil suits;

(e) prevention of workplace injuries and diseases;

(f) timely and safe return to health and work; and

(g) independent administration by an arm's-length agency of government;

S.M. 2005, c. 17, s. 2.

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

Definitions

1(1)        In this Act,

"accident" means a chance event occasioned by a physical or natural cause; and includes

(a) a wilful and intentional act that is not the act of the worker,

(b) any

(i) event arising out of, and in the course of, employment, or

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and

(c) an occupational disease,

and as a result of which a worker is injured; (« accident »)

"accident fund" means the fund provided for the payment of compensation, outlays, and expenses, under Part I of this Act; (« Caisse des accidents »)

"appeal commission" means the Appeal Commission appointed under section 60.2; (« Commission d'appel »)

"appeal commissioner" means a person appointed as an appeal commissioner under section 60.2; (« commissaire aux appels »)

"board" means The Workers Compensation Board continued by this Act; (« Commission »)

"Board of Directors" means the Board of Directors appointed under section 50.2; (« conseil d'administration »)

"chief prevention officer" means the chief prevention officer appointed under section 17.1 of The Workplace Safety and Health Act; (« conseiller principal en prévention »)

"child" includes a child of a child, and a child to whom a worker stands in loco parentis; (« enfant »)

"common-law partner" of a worker means

(a) a person who, with the worker, registered a common-law relationship under section 13.1 of The Vital Statistics Act, and who was cohabiting with the worker immediately preceding the day of the accident, or

(b) a person who, not being married to the worker, cohabited with him or her in a conjugal relationship

(i) for a period of at least three years immediately preceding the day of the accident, or

(ii)  for a period of at least one year immediately preceding the day of the accident and they are together the parents of a child; (« conjoint de fait »)

"construction" includes reconstruction, repair, alteration, and demolition; (« construction »)

"dependants" means those members of the family of a worker who were wholly or partly dependent upon his earnings at the time of his death or who, but for the incapacity due to the accident of the worker would have been so dependent, but a person shall be deemed not to be partially dependent upon the earnings of another person unless he was dependent partially on contributions from that other person for the provision of the ordinary necessaries of life; (« personnes à charge »)

"employer" includes

(a) a person

(i) who has in service under a contract for hiring or apprenticeship, written or oral, expressed or implied, a person engaged in work in or about an industry, or

(ii) who employs a person for more than 24 hours a week

(A) in domestic service,

(B) as a sitter or companion to attend primarily to the needs of a child who is a member of the household, or

(C) as a companion to attend primarily to the needs of an aged, infirm or ill member of the household,

(b) the Crown in right of the province, and municipal corporations, boards and commissions having the management and conduct of any work or service owned by or operated for a municipal corporation, or by or for the Government of Manitoba,

(c) a person that the board has determined under subsection 60(2.1) to be an employer for the purposes of Part I,

(d) the government, where a person is declared to be a worker under section 77,

(e) a trustee, receiver, liquidator, executor or administrator who carries on an industry,

(f) a person who authorizes or permits a learner to be in or about an industry for the purpose mentioned in the definition "learner",

(g) a non-profit or charitable organization admitted by the board under section 75.1 (volunteer coverage), and

(h) a deemed employer under section 77.1 (work experience program); (« employeur »)

"employment" includes employment in an industry or any part, branch, or department, of an industry; (« emploi »)

"health care provider" means a physician, nurse, dentist, chiropractor, occupational therapist, optometrist, physiotherapist, podiatrist, psychologist, or a member of any other health care profession or occupation recognized by the board; (« fournisseur de soins de santé »)

(f) any other goods and services authorized by the board; (« aide médicale »)

"member of the family" means a spouse, common-law partner, parent, grandparent, step-parent, child, grandchild, step-child, brother, sister, half-brother, or half-sister, or a person who stood in loco parentis to the worker or to whom the worker stood in loco parentis, whether related to him by consanguinity or not so related; (« membre de la famille »)

"minimum annual earnings" means the minimum annual earnings established by regulation under clause 68(1)(a); (« gain annuel minimum »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"municipal corporation" includes a municipality, a local government district and a community established under The Northern Affairs Act; (« corporation municipale »)

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions

(a) peculiar to or characteristic of a particular trade or occupation; or

(b) peculiar to the particular employment;

but does not include

(c) an ordinary disease of life; and

(d) stress, other than an acute reaction to a traumatic event; (« maladie professionnelle »)

"outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired, or adapted for sale, in his own home or on other premises not under the control or management of the person who gave out the articles or materials; (« ouvrier indépendant »)

"panel" means an appeal commission panel established under subsection 60.3(1); (« comité »)

"physician" means a duly qualified medical practitioner who is lawfully and regularly engaged in the practice of his or her profession in any jurisdiction in Canada; (« médecin »)

"regulation" means a regulation made by the Board of Directors, except where the authority to make the regulation is conferred on the Lieutenant Governor in Council; (« règlement »)

"spouse" means a person who, on the day of the accident, is married to the worker; (« conjoint »)

"worker" includes

(a) a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise,

(b) a learner,

(c) a casual emergency worker as defined in subsection (4),

(d) a person deemed to be a worker under subsection 60(2.1),

(e) an employer who is admitted by the board as being within the scope of Part I under subsection 74(3),

(f) an independent contractor who is admitted by the board as being within the scope of Part I under section 75,

(g) a director of a corporation who is admitted by the board as being within the scope of Part I under subsection 74(3),

(h) [repealed] S.M. 2005, c. 17, s. 3,

(i) a person or a member of a class of persons declared to be a worker under section 77,

(j) a person who is employed for more than 24 hours a week by the same employer

(i) in domestic service,

(ii) as a sitter or companion to attend primarily to the needs of a child who is a member of the household, or

(iii) as a companion to attend primarily to the needs of an aged, infirm or ill member of the household,

(k) a person who is deemed to be a worker under section 75.1 (volunteer coverage), and

(l) a person who is declared to be a worker under section 77.1 (work experience program). (« ouvrier »)

Restriction on definition of "accident"

1(1.1)      The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

1(2)        [Repealed] S.M. 1989-90, c. 47, s. 2.

Restriction on definition of "worker"

1(3)        The definition of "worker" in subsection (1) does not include

(a) a director of a corporation, unless an application to have the director brought within the scope of Part I is received and approved by the board;

(b) [repealed] S.M. 2005, c. 17, s. 3;

(c) an outworker;

(d) a person whose employment is of a casual nature and who is employed otherwise than for the purposes of the employer's trade or business;

(e) [repealed] S.M. 2005, c. 17, s. 3.

Definition of "casual emergency worker"

1(4)        In this section, "casual emergency worker" means

(a) a member of a municipal fire brigade who is available on a casual basis, with or without remuneration, to respond as needed to fire or emergency calls and whose membership in the municipal fire brigade has been approved either by the chief of the department, or by the municipal corporation or a duly authorized officer thereof;

(b) a person ordered under The Wildfires Act to assist in extinguishing a forest, brush, or grass fire;

(c) a person assisting in fighting a fire or attending an emergency response under the direction of a fire guardian, conservation officer, the chief or head of a municipal fire department or fire brigade, or the Fire Commissioner for Manitoba;

(d) a member of a municipal or community ambulance service who is available on a casual basis, with or without remuneration, to respond as needed to emergency calls for ambulance services and whose membership in the ambulance service has been approved either by the chief officer of the ambulance service, or by the municipal corporation or a duly authorized officer thereof; or

(e) a person who is not otherwise covered by this Act, who, under The Emergency Measures Act,

(i) volunteers or is required to provide aid in an emergency, if he or she is under the direction of a person with authority to implement an emergency plan under that Act,

(ii) voluntarily provides aid while acting under authority of an agreement entered into under section 7 of that Act, if he or she is under the direction of the Executive Co-ordinator of the Emergency Measures Organization, or

(iii) is engaged in an emergency preparedness program.

Deemed employer

1(5)        For the purposes of this Act, the employer of a casual emergency worker is deemed to be

(a) in the case of a casual emergency worker to whom clause (4)(a) or (d) applies, the municipal corporation;

(b) in the case of a casual emergency worker to whom clause (4)(b) applies, the provincial government;

(c) in the case of a casual emergency worker to whom clause (4)(c) applies, the provincial government or the municipal corporation, as the case may be;

(d) in the case of a casual emergency worker to whom clause (4)(e) applies, the provincial government or local authority, as the case may be.

Inclusion in powers and duties

1(6)        Where a municipal corporation is deemed under subsection (5) to be an employer, the employment is deemed to be included in the exercise and performance of the powers and duties of the corporation.

Period of employment

1(7)        Each period of employment of a casual emergency worker is deemed to begin and end as follows:

(a) in the case of a casual emergency worker to whom clause (4)(a) applies, from the time when the person receives a notification, by any means, of an alarm of a fire or emergency, including the time of travel to the fire station, fire scene or the site of the emergency where the person performs duties until, after being released from duty, the person returns home, to the place at which notification was received, to the person's place of regular employment, or to any place for treatment, refreshment or recreation;

(b) in the case of a casual emergency worker to whom clause (4)(b) or (c) applies, from the time when the person is ordered or permitted to so assist until the official in charge orders or permits the person to cease the assistance;

(c) in the case of a casual emergency worker to whom clause (4)(d) applies, from the time when the person receives a notification, by any means, of the need of ambulance services, including the time of travel to the place where the ambulance is stationed or the site of an emergency where ambulance services are required, until the person, following the provision of the ambulance services, leaves the ambulance at the place that it is usually stationed or, if the person has not been with the ambulance, until the person's services at the site of an emergency are no longer required;

(d) in the case of a casual emergency worker to whom clause (4)(a) or (d) applies, while the person is participating in a training program requested or approved by the municipality;

(e) in the case of a casual emergency worker to whom subclause (4)(e)(i) or (iii) applies, from the time when the person is exposed to the risks of the emergency work or the emergency preparedness program until the person is no longer exposed to the risks, as determined by the board;

(f) in the case of a casual emergency worker to whom subclause (4)(e)(ii) applies, while the person remains under the direction of the Executive Co-ordinator of the Emergency Measures Organization.

Average earnings

1(8)        For the purposes of this Act, the average earnings of a casual emergency worker shall be calculated under subsection 77(3), with such modifications as the circumstances require.

1(9) and (10)  [Repealed] S.M. 1989-90, c. 47, s. 2.

Trade or business for purposes of Act

1(11)       The exercise and performance of the powers and duties of

(a) a municipal corporation;

(b) any commission or board having the management and conduct of any work or service owned or operated by a municipal corporation or by or for the Government of Manitoba;

(c) a school board, school area, or school division;

shall for the purposes of this Act be deemed the trade or business of the corporation, commission, board, or school board.

Deemed date of accident re occupational disease

1(12)       Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident.

Deemed date of accident in death

1(12.1)     Where an accident results in a worker's death, the date of death is deemed to be the day of the accident for the purpose of determining the amount of compensation payable to the worker's estate or dependants.  The board may adjust the worker's net average earnings to an amount that, in the board's opinion, represents the worker's probable earning capacity on the date of death, had the accident not occured.

Temporary hiring out of employee

1(13)       Where the employer of a worker temporarily lets or hires the services of the worker to another person, the employer continues to be the employer of the worker for purposes of this Act, while the worker is working for the other person.

S.M. 1989-90, c. 47, s. 2; S.M. 1991-92, c. 36, s. 2; S.M. 1992, c. 58, s. 37; S.M. 1997, c. 36, s. 45; S.M. 2001, c. 37, s. 10; S.M. 2002, c. 48, s. 27; S.M. 2005, c. 17, s. 3; S.M. 2006, c. 34, s. 269; S.M. 2014, c. 31, s. 2.

PART I

COMPENSATION

Application of Part I

2           This Part applies to

(a) all employers and all workers in all industries in Manitoba except those excluded by regulation under section 2.1 (exclusion);

(b) employers, workers, directors of corporations that are employers or independent contractors that are admitted as being within the scope of this Part under section 74 (optional coverage) or section 75 (optional coverage for independent contractor);

(c) non-profit or charitable organizations admitted as being within the scope of this Part and their deemed workers under section 75.1 (volunteer coverage);

(d) persons declared to be workers under section 77 (declared workers); and

(e) deemed employers and their declared workers under section 77.1 (work experience program).

S.M. 1989-90, c. 47, s. 3; S.M. 1991-92, c. 36, s. 3; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 4.

Exclusion of industries, employers or workers

2.1(1)      The Lieutenant Governor in Council may, by regulation, exclude an industry, an employer or workers from being within the scope of this Part and, in doing so, may

(a) provide that the regulation applies to only part of the province or the whole of the province;

(b) permit the inclusion of artisans and mechanics employed full-time at their trade in the excluded industry.

Board to consult industries, employers and workers

2.1(2)      Before a regulation is made under subsection (1), the board must provide an opportunity for consultation with affected industries, employers and workers, and report the results of the consultation to the minister.

S.M. 2005, c. 17, s. 4.

3           [Repealed]

S.M. 1991-92, c. 36, s. 4; S.M. 2005, c. 17, s. 5.

Compensation payable out of accident fund

4(1)        Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Payment on day of accident

4(1.1)      Where a worker is injured in an accident and is unable to work during any part of the day of the accident, the employer shall pay to the worker the wages and benefits for the day of the accident as if the accident had not occurred.

No deduction from benefits

4(1.2)      No employer shall deduct sick pay entitlement or reduce the usual benefits to which a worker is entitled because the employer has to make a payment under subsection (1.1).

Employer fails to comply

4(1.3)      If the employer fails to comply with subsection (1.1) or (1.2),

(a) the board may pay to the worker the amount payable under subsection (1.1);

(b) the employer shall pay to the board a sum equal to the amount paid by the board under clause (a); and

(c) the employer is subject to an administrative penalty under subsection 109.7(1).

Payment of wage loss benefits

4(2)        Where a worker is injured in an accident, wage loss benefits are payable for his or her loss of earning capacity resulting from the accident on any working day after the day of the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

Misconduct of worker

4(3)        Notwithstanding subsection (2), where the injury is attributable solely to the serious and wilful misconduct of the worker, as determined by the board,

(a) wage loss benefits are not payable for three weeks following his or her loss of earning capacity; and

(b) medical aid is not payable for three weeks from the day the worker requires medical aid.

Cause of occupational disease

4(4)        Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Presumption

4(5)        Where the accident arises out of the employment, unless the contrary is proven, it shall be presumed that it occurred in the course of the employment; and, where the accident occurs in the course of the employment, unless the contrary is proven, it shall be presumed that it arose out of the employment.

Definitions

4(5.1)      In this section,

"full-time firefighter" means a full-time member of a fire fighting department; (« pompier à temps plein »)

"OFC personnel" means personnel of the office of the fire commissioner, as provided for in The Fires Prevention and Emergency Response Act, whose duties include

(a) investigating the cause, origin and circumstances of fires,

(b) fire fighting, or

(c) delivering fire investigation or fire fighting training; (« membre du personnel du bureau du commissaire aux incendies »)

"part-time firefighter" means a casual, volunteer or part-time member of a municipal fire brigade. (« pompier à temps partiel »)

Presumption re cancer — firefighters and OFC personnel

4(5.2)      If a worker who is or has been a full-time firefighter, a part-time firefighter or a member of OFC personnel suffers an injury that is

(a) a primary site brain cancer;

(b) a primary site bladder cancer;

(c) a primary site kidney cancer;

(d) a primary non-Hodgkin's lymphoma;

(e) a primary leukemia;

(f) a primary site colorectal cancer;

(g) a primary site ureter cancer;

(h) a primary site lung cancer;

(i) a primary site esophageal cancer;

(j) a primary site testicular cancer;

(k) multiple myeloma;

(l) a primary site prostate cancer;

(m) a primary site skin cancer; or

(n) a primary site breast cancer;

the injury must be presumed to be an occupational disease the dominant cause of which is the employment as a firefighter or as a member of OFC personnel, unless the contrary is proven.

Application of presumption re cancer

4(5.3)      The presumption in subsection (5.2) applies to a worker

(a) who has been employed as a full-time firefighter, a part-time firefighter or a member of OFC personnel for a minimum period prescribed by the Lieutenant Governor in Council by regulation; and

(b) who has been regularly exposed to the hazards of a fire scene, other than a forest-fire scene, throughout that period of employment.

Additional requirement re lung cancer

4(5.4)      In addition to the requirements of subsection (5.3), the presumption for a primary site lung cancer applies only to a worker who has been a non-smoker immediately before the day of the accident for a minimum period of time prescribed by the Lieutenant Governor in Council by regulation.

Effective date of presumption re cancer

4(5.5)      The presumption in subsection (5.2) applies to accidents that happen to

(a) full-time firefighters on or after January 1, 1992; or

(b) part-time firefighters or OFC personnel on or after June 9, 2005.

Presumption re heart injury — firefighters and OFC personnel

4(5.6)      If a worker who is a full-time firefighter, a part-time firefighter or a member of OFC personnel suffers an injury to the heart within 24 hours after attendance at an emergency response, the injury must be presumed to be an accident arising out of and in the course of the employment, unless the contrary is proven.

Regulations

4(5.7)      The Lieutenant Governor in Council may make regulations

(a) prescribing minimum periods of employment for the purpose of subsection (5.3), which may be

(i) different for different diseases set out in subsection (5.2), and

(ii) different for full-time firefighters, part-time firefighters and OFC personnel;

(b) prescribing the minimum period of time for which a worker must be a non-smoker for the purpose of subsection (5.4).

4(6)        [Repealed] S.M. 1989-90, c. 47, s. 4.

Extra provincial employment

4(7)        Subject to any agreement made under subsection (8), and to section 5, no compensation is payable under this Part where the accident to the worker happens elsewhere than within the province.

Agreements with other jurisdictions

4(8)        The board may enter into agreements with the Government of Canada, The Workers Compensation Board or similar body in another province or territory of Canada, a government outside of Canada or a workers compensation board or similar body in a jurisdiction outside of Canada, providing for

(a) co-operation in matters relating to compensation for or rehabilitation of workers injured by accidents arising out of and in the course of employment;

(b) the payment of compensation for accidents to workers who are employed partly within Manitoba and partly within another jurisdiction;

(c) the avoidance of duplicate assessments, and the equitable adjustment of assessments to which an employer is or might be liable on earnings of workers employed partly in Manitoba and partly in another jurisdiction; and

(d) the sharing of the cost of claims in proportion to the estimated amount of a worker's exposure to the probable cause of the injury in each jurisdiction;

and the board shall carry out and give full effect to any such agreement and for that purpose may make payments out of the accident fund, and any money received by the board under any such agreement shall be paid into the accident fund.

Compensation for impairment

4(9)        The board may award compensation in respect of an impairment that does not result in a loss of earning capacity.

4(10) to (12)  [Repealed] S.M. 1989-90, c. 47, s. 4.

S.M. 1989-90, c. 47, s. 4; S.M. 1991-92, c. 36, s. 5; S.M. 1992, c. 58, s. 37; S.M. 2002, c. 2, s. 2; S.M. 2004, c. 42, s. 59; S.M. 2005, c. 17, s. 6; S.M. 2009, c. 14, s. 2; S.M. 2011, c. 1, s. 2; S.M. 2011, c. 24, s. 2.

Accidents outside province

5(1)        Where

(a) the place of business or chief place of business of the employer is situated within the province;

(b) both the residence of the worker and the place where the worker usually works for the employer are within the province;

(c) an accident happens while the worker is employed outside the province; and

(d) his employment outside the province has lasted less than six months.

the worker is or his dependants are entitled to compensation under this Part in the same manner and to the same extent as if the accident had happened within the province.

Where worker employed more than six months outside province

5(2)        Where

(a) the place of business or chief place of business of the employer is situated within the province;

(b) both the residence and the place where the worker usually works for the employer are within the province; and

(c) the employment of the worker outside the province lasts or is likely to last for six or more months;

the employer may apply to the board to be assessed on the earnings of the worker and, if the application is approved by the board and if the worker is injured by accident happening outside the province, the worker is or his dependants are entitled to compensation under this Part in the same manner and to the same extent as if the accident had happened within the province.

Accident while outside province temporarily

5(3)        Where the place of business or the chief place of business of the employer is situated within the province and the residence of the worker is outside the province but the place where the worker usually works for the employer is within the province, and an accident happens while the worker is outside the province merely for some temporary purpose connected with his employment, the worker is or his dependants are entitled to compensation under this Part in the same manner and to the same extent as if the accident had happened within the province.

Where employer's place of business outside province

5(4)        Where

(a) an accident happens outside the province;

(b) the employer's place of business or chief place of business is situated outside the province; and

(c) the worker is entitled to compensation under the law of the place where the accident happened;

compensation is not payable to the worker or his dependants whether his residence is in or outside the province unless his usual place of employment is within the province and he is at the time of the accident outside the province merely for some casual or incidental purpose connected with his employment.

Accidents on ships

5(5)        Where

(a) an accident happens outside the province in connection with the operation of a steamboat, ship or vessel, or of a railway, or of an aircraft, or of a truck, bus or other vehicle used in the transportation of passengers or of any goods or substance;

(b) the residence of the worker is within the province; and

(c) the work or service performed by him is required to be performed both within and outside the province;

the worker is or his dependants are entitled to compensation under this Part as if the accident had happened within the province.

Assessment of employer of worker outside province

5(6)        Where a worker is employed outside the province and the circumstances of

(a) the place of business or chief place of business of the employer of the worker;

(b) the residence of the worker; and

(c) the usual place of work of the worker;

are such that if an accident happened while the worker was employed outside the province, he or his dependants are entitled to compensation as if the accident had happened within the province, the employer shall, unless he is relieved from assessment under an agreement made under subsection 4(8), declare and be assessed on the earnings of the worker in the same way and in the same amounts as though the worker was employed within the province.

Where compensation payable under law of another jurisdiction

6(1)        Where by the law of a country or place in which an accident happens, a worker or a dependant of the worker is entitled to compensation in respect of the accident, the worker or the dependant, within three months after the happening of the accident or, where the accident results in death, within three months after the death, or within such longer period as either before or after the expiration of the three months the board may allow, shall elect whether to claim compensation under the law of the country or the place in which the accident happened or under this Part and shall give notice in writing of the election to the board.

Where election not made

6(2)        Where an election is not made or notice is not given under subsection (1) it shall be presumed that the worker or the dependant, as the case may be, has elected not to claim compensation under this Part.

Effect of claims under law of another jurisdiction

6(3)        Where a person who would, except for this section, be entitled to claim compensation under this Part in respect of an injury or a death arising out of an accident, makes an application for, or claims, or elects to claim, compensation in respect of the injury or death under the law of another country or province, or is presumed under subsection (2) to have elected not to claim compensation under this Part in respect of the injury or death, he is no longer entitled to claim or receive compensation under this Part in respect of the injury or death.

Exception if injustice would result

6(4)        Subsection 6(3) does not apply where the board is of the opinion that an injustice would result, in which case the board may allow the claim for compensation under this Part, subject to any terms and conditions it considers appropriate.

S.M. 2005, c. 17, s. 7.

Compensation in respect of private employment

7(1)        Where a worker engaged in an industry to which this Part applies is required by his or her employer, or by an officer of the employer having direction and control of the worker in the industry, to do work or perform services outside the scope of his or her employment and for the personal benefit of the employer or the officer, if personal injury by accident arising out of and in the course of the doing of the work or performance of the services is caused to the worker, the personal injury shall be deemed to be personal injury to which subsection 4(1) applies, and the worker is entitled to receive compensation from the accident fund accordingly as herein provided.

Apprentices

7(2)        Where an apprentice in an industry to which this Part applies is attending a course of instruction which he is required to take under The Apprenticeship and Certification Act or the regulations made thereunder, if personal injury by accident arising out of and in the course of the attendance at the course of instruction is caused to the apprentice,

(a) the personal injury shall be deemed to be personal injury to which subsection 4(1) applies;

(b) the apprentice shall be deemed to be a worker while attending the course of instruction and he is entitled to receive compensation from the accident fund accordingly as herein provided;

(c) the person to whom he is apprenticed under an agreement of apprenticeship shall be deemed to be his employer at the time that the accident occurred; and

(d) the rate of wages that would have been payable to the apprentice under the agreement of apprenticeship if he had been working for his employer at the time that the accident occurred shall be deemed to be the rate of wages of the apprentice at the time the accident occurred.

S.M. 1991-92, c. 36, s. 6; S.M. 2009, c. 33, s. 53.

8           [Repealed]

S.M. 1991-92, c. 36, s. 7.

Right of action against person other than employer

9(1)        Where an accident happens to a worker in the course of his employment under such circumstances as entitle him or his dependants to an action against some person other than his employer, the worker or his dependants, if entitled to compensation under this Part, may claim the compensation or may bring such an action.

Disposal of moneys recovered

9(2)        Where an action is brought and less is recovered and collected than the amount of the compensation to which the worker or his dependants are entitled under this Part, the difference between the amount recovered and collected and the amount of the compensation is payable as compensation to the worker or his dependants; but the board has the right to require that any money recovered and collected in the action shall, when it is less than the amount of the compensation to which the worker or his dependants are entitled under this Part, be paid over to, and deposited with, the board, to be kept and applied in or towards payment of the monthly or other periodical sums awarded or to be awarded as compensation under this Part.

Compromises must be approved by board

9(3)        A compromise settlement of any action or cause of action by the worker or his dependants at an amount less than the compensation provided for herein shall be made only with the written approval of the board.

Commencement of action tantamount to notice of claim

9(4)        For the purpose of this section, the commencement of an action in the Court of Queen's Bench shall be deemed the filing of a claim for compensation hereunder in the event of a failure by the plaintiff to recover by the action a sum equal to, or greater than, what would have been awarded had the action not been brought and claim made hereunder.

Where claim vested in board

9(5)        Where a worker or dependant makes application to the board claiming compensation under this Part, which claim is thereafter approved by the board, any right of action for or in respect of a personal injury to, or the death of, the worker which the worker, or his legal personal representative or dependant, may have been entitled to maintain against a person other than his employer under subsection (1), immediately on approval of the claim by the board, becomes vested in the board; and the board may enter action in its name or in the name of the injured person, or his legal personal representative or dependant, or jointly with the injured person, or his legal personal representative or dependant, against the other person for the whole or any outstanding part of the claim of the worker, or his legal personal representative or dependant, against the other person for or in respect of the personal injury to, or the death of, the worker.

9(6)         [Repealed] S.M. 1989-90, c. 47, s. 5.

Limitation of right of action

9(7)        In any case within subsection (1), the worker, his or her legal personal representative and dependants, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, against a worker of such an employer or against a director of a corporation that is such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

Exception of motor vehicle accident

9(7.1)      Subsection (7) does not apply where the accident results from the use or operation of a motor vehicle, as defined in The Highway Traffic Act, by a person other than the employer of the worker, a worker of that employer or a director of a corporation that is the employer.

Damages against other employers, workers or directors

9(8)        Where an action is brought by a worker or his dependants in circumstances to which subsection (1) applies, or by the board under subsection (5), and one or more of the persons found to be at fault or negligent is an employer in any industry within the scope of this Part, a worker of such an employer or a director of a corporation that is such an employer, unless the accident occurred otherwise than in the conduct of the operations usual in, or incidental to, the industry carried on by the employer or is an accident to which subsection (7.1) applies, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of the employer, worker or director, and the portion of the loss or damage so caused by the fault or negligence of the employer, worker or director shall be determined although the employer, worker or director is not a party to the action.

Election for minor

9(9)        Where the person required to make an election under this section is under the age of 18 years, his guardian may make the election for him without the necessity of applying to any court or judge for directions in respect thereto.

Board may file claim for injured worker

9(10)       Where an injured worker with right of election hereunder is deemed in need of immediate special care or operation, the board, even though the injured worker has not filed a claim or made election, may direct it to be given or done; and the cost thereof is a first charge against any sum recovered by the injured worker in any action brought by him.

S.M. 1989-90, c. 47, s. 5; S.M. 1991-92, c. 36, s. 8; S.M. 2005, c. 17, s. 8.

Assignment of right of action in another jurisdiction

9.1         Where a worker or dependant entitled to compensation under this Part has a right of action in a jurisdiction other than Manitoba in respect of a personal injury to, or death of, the worker, the worker or dependant must assign the right of action to the board. The board may withhold payment of compensation to the worker or dependant until the assignment is made.

S.M. 2005, c. 17, s. 9.

Where judgment exceeds compensation

10          Where the board recovers moneys under a judgment against any person or under a settlement in respect of an injury or accident that occurred after June 30, 1974, and that resulted in an award of compensation being made under this Act to the injured person or his or her dependants, if the amount recovered exceeds the value of the award of compensation, the board shall pay the excess, less any costs and administrative expenses fixed by the board to the injured person or his or her dependants, as the case requires; but if thereafter the board increases the award of compensation for any reason other than a statutory increase in benefits pursuant to an amendment to this Act, the increase in the award shall be reduced by the value of the amount paid to the injured person or his or her dependants.

S.M. 1991-92, c. 36, s. 9.

Principal's duty to see that contractor files statements

11          Where a person, whether carrying on an industry included within the scope of this Part or not, in this section referred to as the "principal", contracts with any other person for the execution, by or under the contractor, of the whole or any part of any work for the principal, the principal shall see that the contractor files the statements and declarations required by this Part; and, if any principal fails to do so, the principal is subject to an administrative penalty under subsection 109.7(1).

S.M. 2005, c. 17, s. 10.

Board to decide all claims

12          No action lies for the recovery of compensation under this Part; and all claims for compensation shall be heard and determined by the board.

S.M. 1989-90, c. 47, s. 6.

Compensation to be in lieu of other rights

13(1)       The right to compensation provided by this Part is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, or his legal personal representative, or his dependants, are or may be entitled against the employer or a director of the corporation that is the employer, for or by reason of personal injury to, or the death of, the worker occasioned by any accident which happens to him arising out of, and in the course of, his employment; and no action in any court of law against the employer or a director of the corporation that is the employer in respect thereof thereafter lies.

Minor entitled to compensation

13(2)       A worker under the age of 18 years and working at an age, and in an employment, permitted under the laws of the province shall be deemed sui juris for the purpose of this Part; and no other person has any cause of action or right to compensation for an injury to the worker except as expressly provided in this Part.

S.M. 2005, c. 17, s. 11.

Contracting out of Act forbidden

14           It is not competent for a worker to agree with his employer to waive or forego any of the benefits to which he or his dependants are or may become entitled under this Part; and every agreement to that end is void.

No deduction from wages by employer, or contribution by workers

15          Except as provided in this Act, an employer shall not, either directly or indirectly, deduct from the wages of his worker any part of any sum that the employer is or may become liable to pay into the accident fund or otherwise under this Part, or require or permit any of his workers to contribute in any manner towards indemnifying the employer against any liability that he has incurred or may incur under this Part.

Offence and administrative penalty

16          Every person who contravenes section 15

(a) commits an offence;

(b) is subject to an administrative penalty under subsection 109.7(1); and

(c) is also liable to repay to the worker any sum that has been deducted from the worker's wages or that the worker has been required or permitted to pay in contravention of section 15.

S.M. 1989-90, c. 47, s. 7; S.M. 2005, c. 17, s. 12.

Notice of accident

17(1)       In every case of injury to a worker by accident in any industry within the scope of this Part, the worker, or in the case of his death, a dependant, shall, as soon as practicable, but in any case not later than 30 days after the happening of the accident, give notice thereof to the employer.

Contents of notice

17(2)       The notice shall be in writing and contain the name and address of the worker, and state in ordinary language the nature and cause of the injury and the time when, and place where, the accident occurred, and shall be signed by the injured worker or some person on his behalf, or, in case of death, by any one or more of his dependants or by a person on their behalf.

Notice of occupational disease

17(3)       In the case of an occupational disease, the employer to whom the notice under subsection (1) is to be given is the employer who last employed the worker in the employment to the nature of which the disease is due.

Manner of giving notice

17(4)       The notice may be served upon the employer, or upon any one employer if there are more employers than one, or upon any officer or agent of the corporation if the employer is a corporation, or upon any agent of the employer in charge of the business in the place where the injury occurred, by delivering it to the person upon whom it is to be served, or leaving it at his residence or place of business, or by sending it by registered mail addressed to him at his last known residence or place of business.

Failure to give notice a bar to any claim

17(5)       Failure to give the notice required by virtue of this section, unless excused by the board, on the ground

(a) that notice for some sufficient reason could not have been given; or

(b) that the employer or his superintendent or agent in charge of the work where the accident happened had knowledge of the injury; or

(c) that the board is of opinion that the claim is a just one and ought to be allowed;

is a bar to any claim for compensation under this Part.

S.M. 1991-92, c. 36, s. 10.

Employer to report accident

18(1)       In case of an accident giving rise to a claim for compensation, the employer of the worker shall, within five business days

(a) from the day upon which the worker reports the occurrence to the employer; or

(b) from the day the employer otherwise learns of it;

whichever day is earlier, report the accident and the injury resulting therefrom to the board, and also to any local representative of the board at the place where the accident occurred.

Definition of "business day"

18(1.1)     In subsection (1), "business day" means Monday to Friday, except a day that is a holiday.

Contents of report and filing

18(2)       The report shall be in writing, and state

(a) the name and address of the worker and the nature of the industry in which he was employed;

(b) the time when and place where the accident occurred;

(c) the cause and nature of the accident and injury;

(d) the name and address of the physician by whom the worker was or is being attended for the injury; and

(e) any other particulars required by the board;

and must be filed in a form and manner acceptable to the board.

Further reports

18(3)       The employer shall make such further and other reports respecting the accident and worker as may be required by the board.

Offence and administrative penalty

18(4)       An employer who fails to make a report required under this section commits an offence and is subject to an administrative penalty under subsection 109.7(1).

18(5)       [Repealed] S.M. 2005, c. 17, s. 13.

S.M. 1989-90, c. 47, s. 8; S.M. 1991-92, c. 36, s. 11; S.M. 2005, c. 17, s. 13.

Employer's duty to report worker's return to work

18.1(1)     An employer must notify the board when a worker who has been unable to work as a result of an accident returns to work with that employer.

Administrative penalty

18.1(2)     An employer who fails to comply with subsection (1) is subject to an administrative penalty under subsection 109.7(1).

S.M. 2005, c. 17, s. 14.

Application for compensation

19(1)       A worker or dependant entitled to compensation under this Part shall file with the board an application and the certificate of any health care provider, hospital or other health care facility that provides care to the worker, in a form and manner acceptable to the board, with such proof or other information as the board requires, and pending the receipt of proof or information, the board may withhold compensation.

Must be filed within one year

19(2)       Subject to section 109, unless application for the compensation is filed

(a) within one year after the day upon which the injury occurred; or

(b) in case the applicant is a dependant, within one year after the death of the worker;

no compensation in respect of any injury is payable under this Part.

Payment of medical aid

19(3)       The board may, on proof of the accident from the employer and medical attendant, pay for the medical aid rendered without formal claim thereto being filed by the worker.

Worker's duty to report return to work

19(4)       A worker who has been unable to work as a result of an accident must immediately notify the board upon returning to work.

Administrative penalty

19(5)       A worker who fails to comply with subsection (4) is subject to an administrative penalty under subsection 109.7(1).

S.M. 1991-92, c. 36, s. 12; S.M. 2005, c. 17, s. 15.

Inducing worker not to claim compensation

19.1(1)     No employer or person acting on behalf of an employer shall attempt to compel or induce a worker by intimidation, coercion, promise, the imposition of a pecuniary or other penalty, threat, including a threat of dismissal, or by any other means, not to apply for or pursue an application that has been made for or receive compensation under this Part.

No discriminatory action

19.1(2)     No employer or person acting on behalf of an employer shall take or threaten to take discriminatory action against a person for reporting or attempting to report an alleged violation of this section to the board.

Offence and administrative penalty

19.1(3)     Every person who contravenes this section commits an offence and is subject to an administrative penalty under subsection 109.7(1).

S.M. 1991-92, c. 36, s. 12; S.M. 2005, c. 17, s. 16.

Duty of those providing care to an injured worker

20          Every health care provider, hospital or health care facility that provides care to a worker who has been injured in an accident within the scope of this Part must

(a) provide reports in respect of the injury in the form and manner required by the board; and

(b) give reasonable and necessary information, advice and assistance to the injured worker and the dependants of the worker in making application for compensation, including any certificates and reports that may be required by the board, without charge to the worker or the dependants of the worker.

S.M. 1989-90, c. 47, s. 9; S.M. 2001, c. 36, s. 71; S.M. 2005, c. 17, s. 17.

Medical reports not admissible as evidence

20.1        A report made or submitted to the board under section 20 for the purpose of a claim of a worker or a dependant is for the use and purposes of the board, and is not admissible as evidence in a court or tribunal in an action or proceeding against the person or hospital that makes or submits the report, unless it is proved that the report is made maliciously.

S.M. 1991-92, c. 36, s. 13; S.M. 2005, c. 17, s. 80.

Worker to submit to examination

21(1)       If required by the board, a worker who applies for, or is receiving compensation shall submit to medical examination at a place reasonably convenient for the worker and fixed by the board.

Failure to be examined

21(2)       Where a worker fails to submit to the examination, or obstructs the examination, the right to compensation is suspended until the examination has taken place; and no compensation is payable during the period of the suspension unless the board otherwise determines.

S.M. 1989-90, c. 47, s. 10; S.M. 1991-92, c. 36, s. 14.

Worker to co-operate and mitigate

22(1)       Every worker must

(a) take all reasonable steps to reduce or eliminate any impairment or loss of earnings resulting from an injury;

(b) seek out, co-operate in and receive medical aid that, in the opinion of the board, promotes the worker's recovery; and

(c) co-operate with the board in developing and implementing programs for returning to work, rehabilitation or disability management or any other program the board considers necessary to promote the worker's recovery.

Board may reduce or suspend compensation

22(2)       If a worker fails to comply with subsection (1), the board may reduce or suspend the compensation payable to the worker.

S.M. 1991-92, c. 36, s. 15; S.M. 2005, c. 17, s. 18.

Wage loss benefits exempt from garnishment order

23(1)       Wage loss benefits payable to a worker or dependant under this Part are deemed to be wages for the purposes of The Garnishment Act and are exempt from seizure or attachment under a garnishing order to the same extent as wages are exempt under that Act.

23(2)       [Repealed] S.M. 2005, c. 17, s. 19.

Compensation exempt from garnishment, etc.

23(3)       Subject to subsection (1), compensation is exempt from garnishment, seizure, attachment, execution or any similar process or claim and may not be assigned.

S.M. 1991-92, c. 36, s. 16; S.M. 2005, c. 17, s. 19 and 80.

Review of payments by board

24(1)       Any periodical payment to a worker may be reviewed by the board; and, on the review, the board may put an end to or diminish or may increase the payment to a sum not beyond the maximum hereinafter prescribed.

Suspension of payment

24(2)       Where a claimant is confined to a prison the board may, after due investigation, withold or suspend the payment of compensation to the worker or other person receiving compensation for such period as the board considers advisable.

Payment of suspended compensation

24(3)       Where compensation is so withheld it may be paid to dependants of the claimant or to such other persons as the board deems advisable.

Payments to committee or substitute decision maker

24(3.1)     Where a worker or dependant who is entitled to benefits under this Part has a committee appointed under The Mental Health Act or has a substitute decision maker for property appointed under The Vulnerable Persons Living with a Mental Disability Act who has the power to receive payments on behalf of the person, the board shall pay the benefits to the committee or substitute decision maker, as the case may be.

24(4) and (5)  [Repealed] S.M. 1991-92, c. 36, s. 17.

24(6)       [Repealed] S.M. 1989-90, c. 47, s. 12.

S.M. 1989-90, c. 47, s. 11 and 12; S.M. 1991-92, c. 36, s. 17; S.M. 1993, c. 29, s. 209; S.M. 1998, c. 36, s. 137; S.M. 2005, c. 17, s. 80.

25          [Repealed]

S.M. 1989-90, c. 47, s. 12.

Payment of compensation for minor

26          Where compensation is payable to a minor, the payments may be made to such person or persons as, in the opinion of the board from time to time, are best qualified to administer the payments, whether or not the person or persons are the legal guardians of the minor.

S.M. 1989-90, c. 47, s. 13; S.M. 1991-92, c. 36, s. 18.

Provision of medical aid

27(1)       The board may provide a worker with such medical aid as the board considers necessary to cure and provide relief from an injury resulting from an accident.

Emergency expenditures

27(1.1)     Where a worker dies or is hospitalized in critical or serious condition as the result of an accident, the board may reimburse one member of the immediate family of the worker for reasonable expenses incurred as a result of the accident.

Clothing allowance in certain cases

27(2)       In addition to the other compensation provided by this Part, the board may allow to an injured worker who, because of the nature of an injury in respect of which he has received compensation, wears a prosthetic device or orthotic device, an additional clothing allowance to compensate for the additional deterioration of clothes caused by the wearing of the prosthetic device or orthotic device.

Compensation for repair, loss, breakage

27(3)       In addition to any other compensation under this Part, the board may pay to a worker who suffers an injury resulting from an accident or sustains damage to an artificial limb arising out of and in the course of employment the cost, or part of the cost, of repairing or replacing the worker's eye glasses, contact lenses, dentures, hearing aid, artificial eye, artificial limb and any other prosthetic device, and clothing worn at the time of the accident.

Wage loss resulting from loss or damage

27(4)       The board may award wage loss benefits for such period of time as the board considers reasonable to permit repair or replacement of a damaged or lost item, where the worker

(a) is entitled to compensation under subsection (3);

(b) has no immediately available replacement for the damaged or lost item; and

(c) is, in the opinion of the board, thereby unable to perform the usual functions of his or her employment.

27(5)       [Repealed] S.M. 1991-92, c. 36, s. 19.

Autopsy

27(6)       Where an autopsy is deemed by the board necessary to enable it to determine the cause of any death, the board may direct that the autopsy be made within a time to be fixed by the board; and, if the dependant or dependants refuse to permit the autopsy, the board may reject any claim for compensation under this Part.

Expenses

27(7)       The expenses of the autopsy shall be paid out of the accident fund.

Medical aid by employers

27(8)       The board may in its discretion authorize employers to furnish or provide medical aid at the expense of the board and upon terms fixed by it.

27(9)       [Repealed] S.M. 1991-92, c. 36, s. 19.

Medical aid to be under supervision of board

27(10)      Medical aid furnished or provided under any of the preceding subsections of this section shall at all times be subject to the supervision and control of the board; and the board may contract with health care providers, hospitals or other health care facilities for any medical aid required, and agree on a scale of fees or remuneration for any such medical aid.

Fees for medical aid

27(11)      The fees or charges payable for medical aid and medical reports

(a) shall be fixed by the board; and

(b) shall not be more than the board considers reasonable and proper for service rendered to a worker;

and no action lies for an amount larger than is fixed by the board.

Worker's personal physician

27(12)      Without in any way limiting the power of the board under this section to supervise and provide medical aid in every case where the board is of the opinion that the exercise of that power is expedient, the board may permit medical aid to be administered, so far as the selection of a physician is concerned, by the physician who may be selected or employed by the injured worker or his employer, to the end that so far as possible any competent physician may be employed and be available to injured workers.

27(13)      [Repealed] S.M. 1991-92, c. 36, s. 19.

Account to be filed within 12 months

27(14)      No account for medical aid shall be recognized by the board unless the account is filed with the board within 12 months from the discharge of the worker by the health care provider who gave the medical aid, or within 12 months of the date upon which the worker returned to work following the accident, whichever period is the shorter.

27(15)      [Repealed] S.M. 1991-92, c. 36, s. 19.

Transportation to hospital and care on journey

27(16)      Every employer must, where necessary upon the happening of an accident to a worker,

(a) permit immediate transportation to a hospital or to a place where proper and adequate medical care can be given; and

(b) provide for the giving of necessary care to the injured worker during the journey.

27(17) to (19) [Repealed] S.M. 2005, c. 17, s. 20.

Academic, vocational, rehabilitative assistance

27(20)      The board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or rehabilitative or other assistance to a worker for such period of time as the board determines where, as a result of an accident, the worker

(a) could, in the opinion of the board, experience a long-term loss of earning capacity;

(b) requires assistance to reduce or remove the effect of a handicap resulting from the injury; or

(c) requires assistance in the activities of daily living.

S.M. 1989-90, c. 47, s. 14; S.M. 1991-92, c. 36, s. 19; S.M. 2005, c. 17, s. 20.

Limit on further claims

27.1        The board may limit or deny a subsequent claim for medical aid, impairment benefits or wage loss benefits where

(a) the worker previously made a claim for an injury of the same nature as the injury in respect of which the claim is made;

(b) the worker has a medical condition that, in the opinion of the board, requires the worker to be removed temporarily or permanently from working in a particular class of employment because the medical condition could result in an injury of the same nature as the injury in respect of which the claim is made;

(c) the claim is made after the board requested the worker to discontinue employment in the particular class of employment in order to avoid injuries of that nature;

(d) the board has provided or offered to provide the worker with such academic, vocational or rehabilitative assistance as the board considers necessary to enable the worker to become employable in another class of employment; and

(e) the worker continues or returns to employment in the particular class of employment without the approval of the board.

S.M. 1991-92, c. 36, s. 20; S.M. 2005, c. 17, s. 21.

Agreements with Minister of Health

27.2        The board may enter into agreements with the Minister of Health respecting methods of payment by the board or the Minister of Health of the costs of medical aid provided under this Act.

S.M. 1991-92, c. 36, s. 20; S.M. 1992, c. 35, s. 58.

COMPENSATION ON DEATH OF WORKER

Compensation to dependants of deceased worker

28(1)       Where an accident results in the death of a worker, compensation is payable to the worker's dependants in accordance with sections 29 to 35.

Compensation and costs payable on death of worker

28(2)       Where an accident results in the death of a worker, the board shall pay to the estate of the worker or to such person as the board may determine, $9,310. and such part of the expenses as the board may approve in respect of transporting the body from the place of death to the worker's usual place of residence, where the worker dies

(a) in the province, away from his or her usual place of residence; or

(b) outside the province, and his or her usual place of residence is in the province.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 2 to 7; S.M. 1989-90, c. 47, s. 15; S.M. 1991-92, c. 5, s. 2; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 22 and 80.

Compensation payable to dependants

29(1)       Compensation is payable to a dependant of a deceased worker as follows:

(a) to the spouse or common-law partner of the worker,

(i) a lump sum of $45,500., and

(ii) monthly payments equal to 90% of the worker's net average earnings before the accident, less any amount payable to another dependant under clauses (b) to (e);

(b) in respect of each child of the worker under the age of 18 years, a monthly payment of $250.;

(c) in respect of each child of the worker who is 18 years of age or older, a monthly payment of $250., where the child

(i) is applying himself or herself, to the satisfaction of the board, in a course of study that is acceptable to the board, and

(ii) does not have a university degree and has not completed a course in technical or vocational training;

(d) where a child referred to in clauses (b) and (c) is an orphan, or becomes an orphan within one year of the day of the death of the worker and is receiving compensation under those clauses, a monthly payment of $500.;

(e) for a dependant not mentioned in clauses (a) to (d), a monthly payment the board determines to be reasonable and proportionate to the pecuniary loss of the dependant resulting from the death, but not exceeding $250. for each dependant, and a total of $1,000. for all such dependants.

29(2) and (3) [Repealed] S.M. 2005, c. 17, s. 23.

Monthly payments reviewed and indexed

29(4)       The monthly payments referred to in subsection (1) shall be adjusted as of the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

Duration of monthly payments

29(5)       Subject to subsections (6) to (9), the monthly payments referred to in subclause (1)(a)(ii) shall be paid to the spouse or common-law partner until the expiration of 60 months after the day of the worker's death.

Exception to subsection (5)

29(6)       Subject to subsections (7) to (9), where the spouse or common-law partner is 60 years of age or older on the day of the worker's death, the monthly payments referred to in subclause (1)(a)(ii) shall be paid to the spouse or common-law partner until the month in which he or she attains the age of 65 years.

Further exception to subsection (5)

29(7)       Subject to subsections (8) and (9), where the spouse or common-law partner is 61 years of age or older on the day of the worker's death, the monthly payments referred to in subclause (1)(a)(ii) shall be paid to the spouse or common-law partner for 48 months.

Duration of monthly payments to spouse or common-law partner with children

29(8)       Where a child of the worker under the age of 18 years lives with the spouse or common-law partner and that person has custody of the child, the monthly payments referred to in subclause (1)(a)(ii)  paid to the spouse or common-law partner may be extended until the earlier of

(a) the month in which the youngest such child attains the age of 18 years; and

(b) the month in which the spouse or common-law partner attains the age of 71 years.

Extension of monthly payments where hardship

29(9)       Where, in the opinion of the board, the death of a worker results in undue hardship to the spouse or common-law partner of the worker, and the spouse or common-law partner is 50 years of age or older or an invalid on the day of the worker's death, the spouse or common-law partner may elect not to receive the lump sum referred to in subclause (1)(a)(i) and to receive instead the monthly payments referred to in subclause (1)(a)(ii) until the month in which the spouse or common-law partner attains the age of 65 years.

Duration of payments to child under (1)(b)

29(10)      Monthly payments to a child under clause (1)(b) cease in the month in which the child attains the age of 18 years, except where the child is then an invalid, in which case the monthly payments shall continue until the child ceases to be an invalid or is eligible for old age security, whichever first occurs.

Duration of payments to dependant under clause (1)(e)

29(11)      Monthly payments made to a dependant under clause (1)(e) shall continue for as long as, in the opinion of the board, the worker, if alive, might reasonably have been expected to contribute to the support of the dependant.

Conversion to annuity

29(12)      The lump sum payable to a spouse or common-law partner under subclause (1)(a)(i) may, at the election of the spouse or common-law partner, be converted into an annuity to be retained in the accident fund and administered by the board.

S.M. 1989-90, c. 47, s. 16; S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10; S.M. 2005, c. 17, s. 23 and 80.

29.1        [Repealed]

S.M. 1989-90, c. 47, s. 17; S.M. 1991-92, c. 36, s. 21.

Former spouse or common-law partner included

30(1)       For the purposes of clause 29(1)(a) and this section,

(a) "spouse" includes a former spouse; and

(b) "common-law partner" includes a former common-law partner;

where the worker was or would have been, if the worker had lived, required to pay maintenance to that person under a separation agreement or an order of a court.

Former common-law partner

30(1.1)     In this section, "former common-law partner" of a worker means a person who, not being married to the worker, cohabited with him or her in a conjugal relationship

(a) for a period of at least three years; or

(b) for a period of at least one year and they are together the parents of a child.

Limit to payment

30(2)       In the case of a former spouse or former common-law partner, the monthly amount payable under subclause 29(1)(a)(ii) shall not exceed the amount of maintenance the worker was required to provide or, in the opinion of the board, would have been required to provide under a separation agreement or an order of a court.

Apportionment

30(3)       Where more than one spouse or common-law partner of a worker is entitled to compensation under clause 29(1)(a), the board shall apportion the compensation payable in such manner as it considers fair and reasonable according to the pecuniary loss or loss of valuable services suffered by each spouse or common-law partner.

S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10.

Limit on amount payable to children

31(1)       Compensation payable under clauses 29(1)(b) and (c) shall not exceed $1,000. per month.

Limit on amount payable to dependants

31(2)       Compensation payable under clauses 29(1)(b) to (e) shall not exceed $2,000. per month.

Apportioned payments under clauses (1)(b) to (e)

31(3)       Where compensation payable under clauses 29(1)(b) to (e) exceeds the limits set under this section, the board shall apportion the compensation in such manner as it considers appropriate.

S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 18 and 80.

Dependant payment ended and adjusted

32          Where monthly payments to a dependant cease, the board may thereafter adjust the amount of monthly payments to any remaining dependants as if they were the only dependants on the day of the worker's death.

S.M. 1989-90, c. 47, s. 18; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 80.

Commutation of payments

32.1        Where the sole dependant of the worker is a spouse or common-law partner, the board shall, on the request of the spouse or common-law partner, commute the monthly payments payable to a lump sum payment to be paid to the spouse or common-law partner in settlement of the claim.

S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10; S.M. 2005, c. 17, s. 80.

Academic or vocational assistance

33          Where the spouse or common-law partner of a deceased worker

(a) is receiving monthly payments under subclause 29(1)(a)(ii); and

(b) requires assistance to become employable or to increase his or her earning capacity;

the board may make such expenditures from the accident fund as it considers necessary or advisable to provide academic or vocational training, or other assistance to the spouse or common-law partner for such period of time as the board determines.

S.M. 1989-90, c. 47, s. 19; S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10.

Eligibility for two monthly payments

34          Where the spouse or common-law partner of a deceased worker is paid or entitled to monthly payments under subclause 29(1)(a)(ii) and becomes entitled to monthly payments under the same subclause in respect of the death of another worker, he or she shall be paid only the larger of the monthly payments.

S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10.

Board may require proof respecting dependency

35          The board may from time to time require such proof of the existence or degree of dependency of an individual under clause 29(1)(e) as it considers necessary, and pending the receipt of proof that is satisfactory to the board, it may withhold compensation.

S.M. 1989-90, c. 47, s. 20; S.M. 1991-92, c. 36, s. 21.

ANNUITIES

Where compensation available as annuity

36(1)       This section applies to amounts

(a) payable to a spouse or common-law partner under subclause 29(1)(a)(i);

(b) payable to a worker as an impairment award under section 38;

(c) set aside to provide an annuity for a worker under subsections 42(2) and (3);

(d) payable to the spouse or common-law partner of a worker under subsection 42(9).

Types of annuity

36(2)       Where a worker or a spouse or common-law partner of a deceased worker elects to receive an annuity under a provision referred to in subsection (1), the annuity shall, at the election of the annuitant, be one of the following:

(a) an annuity that continues during the life of the annuitant;

(b) a joint annuity that continues during the lives of the annuitant and the spouse or common-law partner of the annuitant, subject to a decrease of 1/3 on the death of one of them;

(c) an annuity that continues for a fixed term of 5, 10, 15 or 20 years;

(d) an annuity that continues for the longer of

(i) the life of the annuitant, and

(ii) a fixed term of 5, 10, 15 or 20 years.

Financial advice on annuities

36(3)       A worker or a spouse or common-law partner of a deceased worker eligible to receive an annuity under a provision referred to in subsection (1) may obtain independent financial advice from a person approved by the board, and the board may pay the fee, or a portion of the fee, of the person out of the accident fund.

Payment on death of annuitant

36(4)       Where a worker or spouse or common-law partner elects an annuity under clause (2)(c) or (d) and dies before the term of the annuity expires, the balance of the annuity shall be paid to a person designated by the annuitant in writing in a form approved by the board or, in the absence of a designation, to the estate of the annuitant, in which case the board may commute the balance of the annuity to a lump sum payment.

Disposition of unclaimed annuities

36(5)       Where money payable under an annuity is unclaimed for not less than six years from the day the board determines the money is payable, the money with accrued interest shall be paid into the accident fund, and on such payment, the board is not liable to make payment under the annuity.

S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10.

Compensation payable

37          Where, as a result of an accident, a worker sustains a loss of earning capacity or an impairment, or requires medical aid, the following compensation is payable:

(a) medical aid, as provided in section 27;

(b) an impairment award, as provided in section 38; and

(c) wage loss benefits for any loss of earning capacity, calculated in accordance with section 39.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 2; S.M. 1991-92, c. 5, s. 3; S.M. 1991-92, c. 36, s. 21.

Impairment

Determination of impairment

38(1)       The board shall determine the degree of a worker's impairment expressed as a percentage of total impairment.

Calculation of impairment award

38(2)       Where the board determines that a worker has suffered an impairment, the board shall pay to the worker as a lump sum an impairment award in the following amount, for an impairment that is determined by the board to be

(a) 1% or greater but less than 30%: $1,030. for each full 1% of impairment;

(b) 30% or greater: $30,900. plus $1,240. for each full 1% of impairment in excess of 30%.

38(3)       [Repealed] S.M. 2005, c. 17, s. 24.

Award calculated as of day of accident

38(4)       In determining the amount of an impairment award, the amounts in subsection (2) in effect on the day of the accident are to be used.

Method of payment

38(5)       Where the sum payable under subsection (2) is greater than an amount that the board may determine to be the minimum amount payable as a lump sum, the sum payable may, at the option of the worker, be converted into an annuity to be retained in the accident fund and administered by the board.

Reconsideration of degree of impairment

38(6)       A worker who is determined under this section to have an impairment and who suffers a significant deterioration of his or her medical condition, may apply to the board to reconsider the worker's degree of impairment and, where the reconsideration results in a change in the percentage of the impairment, the board shall treat the reconsideration as though it were an initial determination under this section.

38(7)       [Repealed] S.M. 2005, c. 17, s. 24.

Re-application under subsection (6)

38(8)        No worker may apply under subsection (6) within 24 months of a decision by the board or the appeal commission respecting the degree of impairment of the worker.

Where worker dies before determination

38(9)       This section does not apply in respect of a worker who dies as a result of an accident before a determination of the degree of impairment is made.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 8; S.M. 1991-92, c. 5, s. 4; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 24.

Wage Loss Benefits

Wage loss benefits for loss of earning capacity

39(1)       Subject to subsections (6) and (7), where an injury to a worker results in a loss of earning capacity after the day of the accident, wage loss benefits must be paid to the worker calculated in accordance with section 40 and equal to 90% of the loss of earning capacity.

Duration of wage loss benefits

39(2)       Subject to subsection (3), wage loss benefits are payable until

(a) the loss of earning capacity ends, as determined by the board; or

(b) the worker attains the age of 65 years.

Exception re workers 61 years of age or older

39(3)       Where a worker is 61 years of age or older at the commencement of his or her loss of earning capacity, the board may pay the wage loss benefits for a period of not more than 48 months following the date of the accident.

Periodic payment of wage loss benefits

39(4)       Payment of wage loss benefits shall be made periodically, at such times and in such manner and form as the board considers advisable.

Limit to wage loss benefits payable

39(5)       Notwithstanding any other provision of this Act, but subject to subsections (6) and (7), wage loss benefits payable must not exceed 90% of the worker's loss of earning capacity.  To give effect to this subsection, the board may

(a) consider the length of time a worker receives or is likely to receive wage loss benefits during any year and the resulting effect on probable income tax, Canada Pension Plan premiums, Quebec Pension Plan premiums or Employment Insurance premiums payable by the worker, and recalculate the loss of earning capacity based on those considerations;

(b) deem any entitlement to a refund or reduction of the probable income tax, Canada Pension Plan premiums, Quebec Pension Plan premiums or Employment Insurance premiums payable by the worker to be earnings that the worker is capable of earning after the injury;

(c) reduce any future entitlement to compensation to prevent any payment of wage loss benefits in excess of the amounts set out in this subsection; and

(d) consider any wage loss benefits paid in excess of the wage loss benefits set out in this subsection to be overpayments of compensation.

Earnings at or below the minimum

39(6)       Where the worker's average earnings before the accident, as determined by the board under section 45, are less than or equal to the minimum annual earnings, the wage loss benefits payable to the worker calculated in accordance with section 40 must be 100% of the loss of earning capacity.

Exception

39(7)       Where

(a) the worker's average earnings before the accident, as determined by the board under section 45, are greater than the minimum annual earnings; and

(b) wage loss benefits payable to the worker calculated at 90% of the loss of earning capacity are less than the amount payable to a worker earning the minimum annual earnings;

the wage loss benefits payable to the worker must be the amount that would be payable to a worker earning the minimum annual earnings.

S.M. 1989-90, c. 6, s. 9; S.M. 1991-92, c. 5, s. 5; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 25.

39.1        [Repealed]

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 9.

Payment of wages by employer for first 14 days

39.2(1)     The Board of Directors may make regulations

(a) requiring a worker's employer at the time of the accident to pay to the worker, as an advance, up to 90% of the worker's net salary or wages for a time period not exceeding 14 days after the day of the accident;

(b) respecting the method of calculating the worker's net salary or wages payable by the employer;

(c) respecting reimbursement of the employer by the board in relation to an advance;

(d) respecting the recovery of any overpayment to the worker;

(e) excluding employers, workers or industries from the application of this section, in addition to those mentioned in subsection (2);

(f) concerning any matter necessary or advisable for the purposes of this section.

Exception

39.2(2)     This section does not apply to

(a) casual emergency workers as defined in subsection 1(4);

(b) persons deemed to be workers under subsection 60(2.1) (deemed worker and employer) or section 75.1 (volunteer coverage);

(c) employers, workers, directors of corporations, and independent contractors who are admitted as being within the scope of this Part under section 74 (optional coverage) or section 75 (optional coverage for independent contractor); or

(d) persons declared to be workers under section 77 (declared workers) or section 77.1 (work experience program).

S.M. 2005, c. 17, s. 26.

Loss of Earning Capacity

Calculation of loss of earning capacity

40(1)       The loss of earning capacity of a worker is the difference between

(a) the worker's net average earnings before the accident; and

(b) the net average amount that the board determines the worker is capable of earning after the accident;

which amount shall not be less than zero.

Monthly payments adjusted and indexed

40(2)       The worker's average earnings before the accident calculated in accordance with section 45 shall be adjusted as of the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

Calculation of net average earnings

40(3)       For the purpose of this Act, the net average earnings of a worker are his or her average earnings calculated in accordance with section 45, less the probable deductions for the following:

(a) income tax payable by the worker, calculated by using the worker's income from employment and Employment Insurance benefits as income, and the worker's basic personal tax credits or exemptions, and tax credits or exemptions for a person who is a dependant of the worker, under the Income Tax Act (Canada), as at the date of the accident or an annual review under subsection (2), as deductions;

(b) Canada Pension Plan premiums or Quebec Pension Plan premiums payable by the worker;

(c) Employment Insurance premiums payable by the worker; and

(d) such other deductions as the board may establish by regulation.

Table of net average earnings

40(4)       The board shall on January 1 in each year, or at such time as the board considers appropriate, establish a schedule or procedure for determining the probable deductions referred to in subsection (3) for various income levels which, for the purpose of that subsection, is final and conclusive.

Recurrence of loss of earning capacity

40(5)       Where a worker returns to full employment after an accident, and thereafter suffers a loss of earning capacity resulting from the accident, the worker's net average earnings before the injury are the greater of

(a) the worker's average earnings before the accident adjusted under subsection (2) as if payments were made continuously from the date of the accident; and

(b) the net average earnings at the time of the worker's most recent employment.

Worker's return to employment

40(6)       For the purpose of subsection (5), a worker shall be considered to have returned to full employment when the board is satisfied that the worker has established a real and substantial attachment to the labour force.

Transfer of costs of wage loss benefits

40(7)       If a worker, at the time of a recurrence of a loss of earning capacity, is in the employment of an employer in a class different from the class to which the worker's employer belonged at the time of the accident, the board may allocate the increased cost of the claim under subsection (5) to such class or to any other available fund, as the board considers equitable.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 2; S.M. 1991-92, c. 5, s. 6; S.M. 1991-92, c. 36, s. 21; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 27.

Collateral Benefits

Definition of "collateral benefit"

41(1)       In this section, "collateral benefit" means

(a) any periodic benefit the worker is entitled to receive under the Canada Pension Plan, the Quebec Pension Plan, the Employment Insurance Act (Canada), and a policy of disability insurance;

(b) any payment to the worker by the worker's employer, including a gratuity or allowance; and

(c) any other statutory benefit prescribed by the board by regulation.

Earning capacity includes collateral benefit

41(2)       In determining the amount a worker is capable of earning after the accident, the board shall include as earnings any taxable collateral benefit the worker receives or is entitled to receive as a result of the injury.

Non-taxable collateral benefit deducted

41(3)       Wage loss benefits awarded to a worker shall be reduced by any non-taxable collateral benefit the worker receives or is entitled to receive as a result of the injury.

Collateral benefit in excess of ceiling

41(4)       Notwithstanding subsections (1) to (3), the board shall consider collateral benefits which the worker receives or is entitled to receive only to the extent that such benefits, together with the wage loss benefits otherwise payable under this Part, have the effect of compensating the worker in excess of 100% of the worker's actual loss of earning capacity.

41(5) to (7)[Repealed] S.M. 2005, c. 17, s. 28.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 10; S.M. 1991-92, c. 5, s. 7; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 28.

Definitions

42(1)       In this section,

"contribution rate" means the contribution made by an employer to a pension plan for the benefit of a worker as a percentage of the worker's pre-accident earnings; (« taux de cotisation »)

"qualifying period" means a total period of 24 months during which a worker receives wage loss benefits. (« période d'admissibilité »)

Board's contribution to annuity

42(2)       Where wage loss benefits are paid to a worker after the qualifying period, the board must invest on the worker's behalf an amount equal to the following percentage of future wage loss benefits payable to the worker under this Part:

(a) where the employer's contribution rate before the accident was 5% or less, the difference between 5% and the employer's contribution rate after the qualifying period;

(b) where the employer's contribution rate before the accident was more than 5% but did not exceed 7%, the difference between the employer's contribution rate before the accident and the employer's contribution rate after the qualifying period;

(c) where the employer's contribution rate before the accident was more than 7%, the difference between 7% and the employer's contribution rate after the qualifying period;

but in no case may the amount be less than zero.

Worker may contribute to annuity

42(3)       For the purpose of investment under this section, a worker may, in writing, in a form and manner acceptable to the board, within three months after the qualifying period, advise the board that the worker elects to contribute an amount of not more than the amount contributed by the board under this section. The amount must be deducted from the wage loss benefits paid to the worker and added to the amount under subsection (2).

Establishment of annuity for retirement

42(4)       The amounts referred to in subsections (2) and (3), together with accrued interest, must be used to provide an annuity for the worker at retirement.

42(5)       [Repealed] S.M. 2005, c. 17, s. 29.

Use of annuity funds

42(6)       The amounts referred to under subsections (2) and (3) may be retained in the accident fund and administered by the board or, on the request of the worker, paid into a registered pension plan.

Payment of lump sum instead of annuity

42(7)       Where the amounts referred to under subsections (2) and (3) are retained in the accident fund and, at the time the worker is eligible to receive annuity payments, are less than an amount that may be determined by the board, the board may pay to the worker the accumulated capital and interest in lieu of an annuity.

Annuity payment on death of worker

42(8)       Where a worker for whom contributions are made under this section dies before electing the type of annuity under subsection 36(2), the board shall pay

(a) where the worker is survived by a spouse or common-law partner, to that person a lump sum equivalent to the accumulated capital and interest; or

(b) where the worker is not survived by a spouse or common-law partner, to the estate of the worker a lump sum equivalent to the accumulated capital and interest.

Lump sum converted to annuity

42(9)       Where the lump sum referred to in clause (8)(a) is greater than an amount that may be determined by the board, the board may, at the election of the spouse or common-law partner, convert the lump sum into an annuity to be retained in the accident fund and administered by the board.

Division of annuity benefits on marriage breakup

42(10)      The amounts referred to under subsections (2) and (3) are a family asset as defined under The Family Property Act and, where a worker and his or her spouse or common-law partner live separate and apart, are subject to division in the manner set forth in The Pension Benefits Act.

S.M. 1991-92, c. 36, s. 21; S.M. 2001, c. 37, s. 10; S.M. 2002, c. 48, s. 27; S.M. 2005, c. 17, s. 29 and 30.

Group benefit plans and programs

43(1)       The board may by regulation establish benefit programs or enter into contracts of group insurance that are general in application or restricted to a specific group, as the board considers appropriate, for

(a) workers who are in receipt of wage loss benefits under this Part for more than 24 months;

(b) dependants of workers described in clause (a); or

(c) dependants of deceased workers who are in receipt of monthly payments under section 29.

Types of benefit programs

43(2)       A benefit program or group insurance plan established under subsection (1) may include

(a) extended health care plans;

(b) accidental death and dismemberment plans; or

(c) such other benefit plans as the board considers advisable or necessary.

Funding of benefit plan

43(3)       A benefit program or group insurance plan established by the board under this section shall be funded by the board from the accident fund, by participants in the benefit program or group insurance plan, or in such other manner as the board may determine.

Voluntary participation in benefit plan

43(4)       No regulation made under subsection (1) shall require any person to contribute to or fund a benefit program or group insurance plan unless the person elects to participate in the program or plan.

Group life insurance plan

43(5)       The board shall by regulation establish a group life insurance plan for workers who receive wage loss benefits under this Part for more than 24 months, on such terms and conditions and in such amount as may be prescribed.

Cost of plan to board

43(6)       The cost to the board of the group life insurance plan referred to in subsection (5) shall not exceed 5% of future wage loss benefits payable to the workers in the group life insurance plan.

R.S.M. 1987 Supp., c. 31, s. 20; S.M. 1989-90, c. 6, s. 2 and 11; S.M. 1991-92, c. 5, s. 8; S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 80.

Annual adjustment in compensation

44(1)       The board shall in each year by regulation adjust any compensation referred to in this Part in specific dollar amounts and the maximum annual earnings under subsection 46(2) by applying the indexing factor determined under section 47.

Use of rounded figure

44(2)       A figure calculated under section 47 for the purpose of subsection (1) shall be rounded to the nearest $10., but the figure calculated and not the rounded figure shall be used in any later calculation under section 47.

Coming into force of regulation

44(3)       A regulation made under subsection (1) shall come into force on January 1 in the year in which it is to be effective.

S.M. 1991-92, c. 36, s. 21; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 31.

Calculation of average earnings

45(1)       The board shall calculate a worker's average earnings before the accident on such income from employment and employment insurance benefits, and over such period of time, as the board considers fair and just, but the amount of average earnings shall not exceed the maximum annual earnings established under section 46.

Average earnings includes all employment income

45(2)       In making a calculation under subsection (1), the board shall consider any employment income the worker has at the time of the accident from which the worker sustains a loss of earnings, whether or not the employment is in an industry to which this Part applies.

Adjustment of earning capacity

45(3)       Where the board is satisfied that a worker's average earnings before the accident do not fairly represent his or her earning capacity because the worker was an apprentice in a trade or occupation, the board may adjust wage loss benefits from time to time by deeming the worker's average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker in the trade or occupation.

Adjustment of earning capacity based on age

45(4)       Where a worker sustains a long-term loss of earning capacity, and the board is satisfied that because of the worker's age, his or her average earnings before the accident do not fairly represent the worker's earning capacity, the board may adjust wage loss benefits from time to time by deeming the worker's average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker, which amount shall not exceed the average of the industrial average wage for each of the 12 months before July 1 in the preceding year.

Allocation of additional cost

45(5)       The board may allocate to such fund as it considers appropriate any additional cost, or part thereof, resulting

(a) under subsection (2), from including income from employment in an industry to which this Part does not apply; and

(b) from adjusting wage loss benefits under subsection (3) or (4).

S.M. 1991-92, c. 36, s. 21.

Limitation re maximum annual earnings

46(1)       For accidents occurring after December 31, 1991, and before the day this section comes into force, no regard must be taken of the earnings of the worker in excess of the maximum annual earnings when calculating earnings for the purposes of this Part.

Maximum annual earnings set

46(2)       Subject to the regulations, the maximum annual earnings for accidents occurring after December 31, 1991, and before the day this section comes into force, are $45,500.

S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 32.

Definition of "industrial average wage"

47(1)       In this Act, "industrial average wage" means the industrial aggregate average weekly earnings for all employees for Manitoba as published monthly by Statistics Canada except where

(a) no such figure is published for a particular month; or

(b) after the coming into force of this provision, Statistics Canada uses a new method to determine the industrial aggregate average weekly earnings for all employees for Manitoba for a particular month and the new method results in a change of more than 1% when compared with the former method;

in which case the board shall determine an amount that in its opinion represents the industrial average wage for Manitoba.

Annual calculation of ratio

47(2)       The board shall determine a ratio for each year by dividing the sum of the industrial average wage for each of the 12 months before July 1 of the previous year by the sum of the industrial average wage for each of the 12 months before July 1 in the year before that year.

Indexing factor if ratio is 1.06 or less

47(3)       If the ratio calculated under subsection (2)

(a) is 1 to 1.06, inclusive, the indexing factor for the year is the ratio; or

(b) is less than 1, the indexing factor for the year is 1.

Cap of 6% on indexing

47(4)       Subject to subsections (5) and (6), where the ratio calculated under subsection (2) exceeds 1.06, the indexing factor for the year is 1.06.

Ratio may be increased by regulation

47(5)       Where the ratio calculated under subsection (2) exceeds 1.06, the board may by regulation increase the indexing factor to an amount above 1.06 to a maximum of the ratio calculated under subsection (2).

Carry forward of excess

47(6)       Where a ratio calculated under subsection (2) exceeds the indexing factor determined under this section for the year, the excess shall be carried forward for five years and added to the indexing factor in any year in which the ratio calculated under subsection (2) is less than 1.06; but the indexing factor in any year shall not exceed 1.06, except by a regulation made under subsection (5).

S.M. 1991-92, c. 36, s. 21; S.M. 2011, c. 1, s. 3.

PERIODIC ADJUSTMENT OF COMPENSATION

Definition of "consumer price index"

48(1)       In this section "consumer price index" means the "all-items" Consumer Price Index for Manitoba as published monthly by Statistics Canada except where

(a) no such figure is published for a particular month; or

(b) after the coming into force of this provision, Statistics Canada uses a new method to determine the consumer price index for Manitoba for a particular month and the new method results in a change of more than 1% when compared with the former method;

in which case the board shall determine an amount that in its opinion represents the consumer price index for Manitoba.

Annual calculation of ratio

48(2)       As of January 1 in each year, the board shall determine a ratio for the year by dividing the consumer price index for June in the previous year by the consumer price index for June in the year before that year.

Annual indexing factor if ratio of 1.06 or less

48(3)       If the ratio calculated under subsection (2)

(a) is 1 to 1.06, inclusive, the annual indexing factor for the year is the ratio; or

(b) is less than 1, the annual indexing factor for the year is 1.

Cap of 6% on annual indexing

48(4)       Subject to subsection (5), where the ratio calculated under subsection (2) exceeds 1.06, the annual indexing factor for the year is 1.06.

Cap may be increased by regulation

48(5)       Where the ratio calculated under subsection (2) exceeds 1.06, the board may by regulation increase the annual indexing factor to an amount above 1.06 to a maximum of the ratio calculated under subsection (2).

Annual calculation of biennial ratio

48(6)       As of January 1 in each year, the board shall determine a biennial ratio for the year by dividing the consumer price index for June in the previous year by the consumer price index for June in the year two years before that year.

Biennial indexing factor if ratio is 1.12 or less

48(7)       If the ratio calculated under subsection (6)

(a) is 1 to 1.12, inclusive, the biennial indexing factor for the year is the ratio; or

(b) is less than 1, the biennial indexing factor for the year is 1.

Cap of 12% on biennial indexing

48(8)       Subject to subsection (9), where the ratio calculated under subsection (6) exceeds 1.12, the biennial indexing factor for the year is 1.12.

Cap may be increased by regulation

48(9)       Where the ratio calculated under subsection (6) exceeds 1.12, the board may by regulation increase the biennial indexing factor to an amount above 1.12 to a maximum of the ratio calculated under subsection (6).

S.M. 1991-92, c. 36, s. 21; S.M. 2011, c. 1, s. 4.

Adjustment of monthly allowance re death of worker

49(1)       Where a person is entitled under section 28, as that section is immediately before this section comes into force, to receive a monthly allowance as compensation in respect of the death of a worker resulting from an accident that happened before this section comes into force, the amount of the monthly payment shall be adjusted as of July 1 in the year following the year in which this section comes into force, and biennially thereafter by the biennial indexing factor for the year in which the adjustment is made.

Adjustment of prior permanent disabilities

49(2)       Where a person is entitled to receive a periodic payment as compensation in respect of a permanent disability or special additional compensation under subsection 40(2), as that subsection is immediately before this section comes into force, arising from an accident that happened before this section comes into force, the amount of the periodic payment shall be adjusted as follows:

(a) where the accident happened before January 1, 1990, as of July 1, 1993, and biennially thereafter by the biennial indexing factor for the year in which the adjustment is made;

(b) where the accident happened after December 31, 1989, as of July 1, 1995, and biennially thereafter by the biennial indexing factor for the year in which the adjustment is made.

Adjustment of temporary disability compensation, etc.

49(3)       Where a person is entitled to receive a periodic payment as compensation in respect of a temporary total disability or temporary partial disability arising from an accident that happened before this section comes into force, the amount of the periodic payment shall be adjusted by deeming the person's average weekly earnings at the time of the accident to be an amount determined by adjusting the average weekly earnings previously determined by the board by the annual indexing factor for the year in which the adjustment is made.

Adjustment of minimum and maximum

49(4)       For the purpose of adjusting the amount of a periodic payment referred to in subsection (3), the amount of monthly earnings below which a person is entitled to receive, as monthly compensation, an amount equal to his or her average monthly earnings, and the maximum annual earnings established under section 46 immediately before this section comes into force, shall be adjusted by the annual indexing factor for the year in which the adjustment is made.

Time of adjustments under subsections (3) and (4)

49(5)       The adjustments referred to in subsections (3) and (4) shall be made at the end of the month that is two years after the date on which this section comes into force, and at the end of that month in each year thereafter.

S.M. 1991-92, c. 36, s. 21.

Exception re adjustment for person 65 or over

49.1        Notwithstanding section 49, where a person other than a dependant of a deceased worker is entitled to receive a periodic payment, special additional compensation or a monthly allowance arising from an accident that happened before this section comes into force, the compensation shall not be adjusted where the person is, at the date he or she becomes entitled to the adjustment, 65 years of age or over.

S.M. 1991-92, c. 36, s. 21; S.M. 2005, c. 17, s. 80.

Deficiency in accident fund

49.2(1)     Where the board determines that the funds collected from employers in a class before this section comes into force are insufficient to meet liabilities under this Act in respect of the class, the board may assess, levy upon and collect from employers previously in the class such funds as the board considers necessary or advisable to reduce or eliminate the unfunded liability in the class.

Exception re government guarantee

49.2(2)     Subsection (1) does not apply where an unfunded liability is guaranteed by the Government of Canada or the Government of Manitoba.

S.M. 1991-92, c. 36, s. 21.

Obligation to Re-employ

Obligation to re-employ

49.3(1)     In accordance with this section, an employer within the scope of this Part must offer to re-employ a worker

(a) who has been unable to work as a result of an accident; and

(b) who, on the day of the accident, had been employed by the employer for at least 12 continuous months on a full-time or regular part-time basis.

Exception

49.3(2)     This section does not apply to

(a) casual emergency workers, learners, persons deemed to be workers under section 75.1 (volunteer coverage) and persons declared to be workers under section 77 (declared workers) or section 77.1 (work experience program);

(b) an employer who employs fewer than 25 full-time or regular part-time workers, as determined by the board; or

(c) an employer, worker or industry excluded by regulation.

Duration of obligation

49.3(3)     The employer is obligated under this section until the earliest of the following dates:

(a) the second anniversary of the day of the accident;

(b) six months after the worker is medically able to perform the essential duties of the worker's pre-accident employment or other suitable work, as determined by the board;

(c) the date on which the worker would have retired from that employment, as determined by the board.

Duty to accommodate

49.3(4)     The employer must accommodate the work or the workplace to the needs of the worker to the extent that the accommodation does not cause the employer undue hardship.

Able to perform the essential duties

49.3(5)     When the worker is medically able to perform the essential duties of the worker's pre-accident employment, the employer must

(a) offer to re-employ the worker in the position the worker held on the day of the 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 day of the accident.

Able to perform suitable work

49.3(6)     When the worker is medically able to perform suitable work but is unable to perform the essential duties of the worker's pre-accident employment, the employer must offer the worker the first opportunity to accept suitable employment that becomes available with the employer.

Determinations re return to work

49.3(7)     If the worker and the employer disagree about the worker's fitness to return to work, the board must determine

(a) if the worker has not returned to work with the employer, whether the worker is medically able to perform the essential duties of the worker's pre-accident employment or to perform suitable work; or

(b) if the board has previously determined that the worker is medically able to perform suitable work, whether the worker is medically able to perform the essential duties of the worker's pre-accident employment.

Effect of termination

49.3(8)     If an employer re-employs a worker in accordance with this section and then terminates the employment within six months, the employer is presumed not to have fulfilled the employer's obligations under this section.  The employer may rebut the presumption by showing that the termination was not related to the accident.

Layoff or termination

49.3(9)     Nothing in this section prevents an employer from

(a) refusing to offer to re-employ a worker;

(b) refusing to continue to employ a worker;

(c) discharging, laying off or suspending a worker; or

(d) altering the status of or transferring a worker;

if the employer satisfies the board that the employer's decision to do so 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 the accident.

Notice of dispute

49.3(10)    The employer or the worker must notify the board of disputes concerning whether the employer has fulfilled the employer's obligations to the worker under this section.

Resolution of dispute

49.3(11)    Upon receiving a notice under subsection (10), the board must, within 60 days or within any longer period that the board allows, determine whether the employer has fulfilled the employer's obligations to the worker under this section.

Mediation

49.3(12)    The board may attempt to resolve the dispute under subsection (10) through mediation.

Limitation

49.3(13)    The board is not required to make a determination under subsection (11) where

(a) a re-employed worker's employment is terminated within six months; and

(b) the worker's notice under subsection (10) is provided to the board more than three months after the date of termination.

Board may determine whether employer fulfills obligation

49.3(14)    The board may, on its own initiative, determine whether the employer has fulfilled the employer's obligations to the worker under this section.

Failure to comply

49.3(15)    If the board determines that the employer has not complied with an obligation under this section, the employer is subject to an administrative penalty under subsection 109.7(1) in an amount not exceeding the amount of the worker's net average earnings for the year before the accident.

Conflict with collective agreement

49.3(16)    If the employer's obligations under this section afford the worker greater re-employment terms than does a collective agreement that is binding on the employer, this section prevails over the collective agreement.

S.M. 2005, c. 17, s. 33.

THE WORKERS COMPENSATION BOARD

Board continued

50(1)       "The Workers Compensation Board" is hereby continued as a body corporate for the administration of this Part.

Administration of Act of Canada

50(2)       The board may administer any Act of the Parliament of Canada or order of the Governor General in Council dealing with the payment of compensation to the persons named in any such Act or order in council or dealing with employment safety.

Duties under other Acts

50(3)       The board shall perform such duties and functions, and exercise such rights and powers, as may be imposed on, or given to, it under any other Act of the Legislature or by the Lieutenant Governor in Council under an Act of the Legislature.

50(4)       [Repealed] S.M. 1991-92, c. 36, s. 22.

General powers

50(5)       The board has the capacity, rights and powers of a natural person for carrying out its purposes and objects.

S.M. 1989-90, c. 47, s. 21; S.M. 1991-92, c. 36, s. 22; S.M. 2005, c. 17, s. 34.

BOARD OF DIRECTORS

Consultation regarding appointments

50.1        For the purpose of making appointments under subsections 50.2(1) and 60.2(1), the Lieutenant Governor in Council shall consult with

(a) persons on whom assessments are levied under this Part, regarding the appointment of persons representative of employers;

(b) workers in industries subject to this Part, regarding the appointment of persons representative of workers; and

(c) persons on whom assessments are levied under this Part and with workers in industries subject to this Part, regarding the appointment of persons representative of the public interest.

S.M. 1989-90, c. 47, s. 22.

Board of Directors

50.2(1)     There shall be a Board of Directors of the board, to be appointed by the Lieutenant Governor in Council, consisting of

(a) a member who shall be chairperson;

(b) three members representative of workers;

(c) three members representative of employers; and

(d) three members representative of the public interest.

C.E.O. is non-voting member

50.2(2)     The chief executive officer appointed under subsection 59(1) is a member of the Board of Directors, but shall not vote on any matter.

Term of appointment

50.2(3)     Members of the Board of Directors are to be appointed for the term fixed in the order appointing them, which must not exceed four years.

Staggered terms of appointment

50.2(3.1)   In making the appointments, the Lieutenant Governor in Council may have regard to the length of the terms so that no more than one-third of the appointments expire in any year.

Eligible for reappointment

50.2(3.2)   Each member of the Board of Directors is eligible for reappointment.

After term expires

50.2(3.3)   A member of the Board of Directors whose term expires continues to hold office until reappointed or a successor is appointed or until the appointment is revoked.

Remuneration

50.2(4)     The Lieutenant Governor in Council or his or her designate shall fix the remuneration of each member appointed under subsection (1), and the remuneration shall be paid from the accident fund.

S.M. 1989-90, c. 47, s. 22; S.M. 2005, c. 17, s. 35.

Absence of chairperson

51          By resolution of the Board of Directors, one of the members may act as chairperson during the temporary absence of the chairperson.

S.M. 1989-90, c. 47, s. 23.

Functions of Board of Directors

51.1(1)     The Board of Directors must

(a) approve and supervise the policies and direction of the board, including policies respecting compensation, rehabilitation, assessment, investment of the accident fund and prevention of workplace injury and illness;

(b) consider and approve operating and capital budgets of the board;

(c) plan for the future of the compensation system; and

(d) plan for the prevention of workplace injury and illness.

Establishment of committees

51.1(2)     The Board of Directors may establish committees of the Board of Directors that it considers necessary and must establish

(a) a policy and planning committee;

(b) an audit committee;

(c) an investment committee; and

(d) a prevention committee.

Composition of committees

51.1(3)     Each committee of the Board of Directors established under subsection (2) must be composed of

(a) the chairperson of the Board of Directors;

(b) the chief executive officer; and

(c) an equal number of members of the Board of Directors representative of workers, employers and the public interest, one of whom must be appointed chairperson of the committee by the Board of Directors.

Additional members of the audit and investment committees

51.1(4)     For the audit committee and the investment committee, the Board of Directors may appoint not more than three other persons as members of each committee.

Additional members of prevention committee

51.1(4.1)   For the prevention committee, the following additional persons are also members:

(a) the deputy minister of the department over which the minister presides, or the deputy minister's designate;

(b) the chief prevention officer;

(c) a member representative of employers who is appointed by the minister after consultation with organizations representing employers;

(d) a member representative of workers who is appointed by the minister after consultation with organizations representing workers.

Remuneration for committee members

51.1(5)     The Board of Directors may fix the remuneration of a member of the audit committee, the investment committee or the prevention committee who is not a member of the Board of Directors.

Functions of the policy and planning committee

51.1(6)     The policy and planning committee must

(a) develop policy for the consideration of the Board of Directors; and

(b) review and evaluate strategic plans and make recommendations to the Board of Directors.

Functions of the audit committee

51.1(7)     The audit committee must

(a) review and advise the board about the annual report under section 70 and the separate accounts under section 87;

(b) review and advise the board about any audit or investigation under section 69;

(c) make recommendations to the Board of Directors about the board's internal control procedures;

(d) make recommendations to the Board of Directors about standards of conduct and conflict of interest guidelines;

(e) review and approve the mandate of the board's internal auditor and the internal audit plans;

(f) periodically arrange and participate in meetings with the internal auditor and the Auditor General or other auditor appointed by the Lieutenant Governor in Council to review the results of the internal audit practices of the board; and

(g) perform any other functions assigned to it by the Board of Directors.

Functions of the investment committee

51.1(8)     The investment committee must

(a) develop policy for the consideration of the Board of Directors for the prudent investment of the accident fund;

(b) regularly review and advise the Board of Directors about the investments in which the accident fund is invested;

(c) make recommendations to the Board of Directors about the engagement of appropriate investment managers or advisors; and

(d) ensure the board has in place reasonable and prudent supervision of any investment managers or advisors.

Functions of the prevention committee

51.1(9)     The prevention committee must

(a) develop policy for the prevention of workplace injury and illness, including incentive programs, for the consideration of the Board of Directors;

(b) develop operating and capital budgets for prevention activities;

(c) regularly review and advise the Board of Directors about prevention activities under section 54.1;

(d) ensure that the board has in place reasonable processes for coordinating its activities with those of the department and branch (as "department" and "branch" are defined in The Workplace Safety and Health Act) and the chief prevention officer; and

(e) review and evaluate strategic plans for prevention initiatives and make recommendations to the Board of Directors.

S.M. 1989-90, c. 47, s. 24; S.M. 2005, c. 17, s. 36; S.M. 2014, c. 31, s. 6.

52 to 54    [Repealed]

S.M. 1989-90, c. 47, s. 25.

Definitions

54.1(1)     In this section, "branch", "department", "health", "minister" and "safety" have the same meaning as in The Workplace Safety and Health Act.

Prevention activities

54.1(2)     In order to promote safety and health in workplaces and to prevent and reduce the occurrence of workplace injury and illness, the board must, in co-operation with the department and the branch,

(a) promote public awareness of workplace safety and health and injury and illness prevention;

(b) promote an understanding of and compliance with this Act and The Workplace Safety and Health Act;

(c) foster commitment to workplace safety and health and to injury and illness prevention among employers, workers and other persons;

(d) work with organizations engaged in workplace injury and illness prevention to promote workplace safety and health;

(e) provide training and education about preventing workplace injury and illness;

(f) develop standards for workplace safety and health and training programs, including certification processes for providers; and

(g) publish reports, studies or recommendations about workplace safety and health and injury and illness prevention.

Assistance to chief prevention officer

54.1(2.1)   The board must provide assistance to the chief prevention officer in connection with his or her responsibilities under The Workplace Safety and Health Act.

Expenditures

54.1(3)     The board must

(a) make expenditures from the accident fund that the board considers necessary to give effect to this section; and

(b) keep separate accounts of expenditures related to prevention activities.

Information

54.1(4)     The board, department, branch and chief prevention officer may share information with one another about workplace safety and health and injury and disease prevention to the extent necessary to give effect to this section.

S.M. 2005, c. 17, s. 37; S.M. 2013, c. 9, s. 26; S.M. 2014, c. 31, s. 7.

Powers of board as to witnesses

55(1)       The board has all the powers that are conferred upon commissioners under Part V of The Manitoba Evidence Act for compelling the attendance of witnesses and of examining them under oath and of compelling them to answer questions and compelling the production of books, papers, documents, and other things.

Depositions

55(2)       The board may cause depositions of witnesses residing within or without the province to be taken before any person appointed by the board in a similar manner to that prescribed by the rules of the Court of Queen's Bench for the taking of like depositions in that court before a commissioner.

Conflict of interest

56          The Board of Directors shall pass a by-law

(a) to define circumstances that shall constitute conflict of interest for its members;

(b) to govern disclosure of conflicts of interest; and

(c) to provide rules and guidelines regarding participation and voting at meetings of the Board of Directors by a member who has a conflict of interest.

S.M. 1989-90, c. 47, s. 26.

Board offices

57          The offices of the board shall be situated in the City of Winnipeg, and meetings of the Board of Directors shall be held at the call of the chairperson at any place in Manitoba that the chairperson may decide.

S.M. 1989-90, c. 47, s. 27.

Board meetings

58(1)       The Board of Directors shall conduct its proceedings in such manner as it considers most convenient for the proper discharge of business.

Quorum

58(2)       A majority of the appointed members of the Board of Directors constitutes a quorum.

Vacancy

58(3)       When there is a vacancy on the Board of Directors, the remaining members may exercise the powers of the board.

S.M. 1989-90, c. 47, s. 28; S.M. 2014, c. 31, s. 8.

C.E.O. and other employees

59(1)       The Board of Directors shall appoint a person to be known as the chief executive officer, and shall fix his or her salary and prescribe his or her duties, which shall include employing such persons as are necessary to carry out this Part, prescribing their duties and fixing their salaries; and the salaries shall be paid out of the accident fund.

Tenure

59(2)       Every person so appointed shall hold office during the pleasure of the board.

Superannuation fund for employees

59(3)       The board, with the approval of the Lieutenant Governor in Council, may establish and maintain a fund, or enter into arrangements with a duly licensed insurance company or insurance companies or the Annuities Branch of the Department of Labour of the Government of Canada for the payment of superannuation allowances; and may provide for contributions to the fund by the board and by its employees, and for the terms and conditions upon which any superannuation or other allowance shall be payable, and the persons to whom it may be paid; and the costs of maintaining and administering the fund shall be deemed part of the cost of the administration of the board and shall be chargeable to the accident fund.

Contribution to civil service superannuation fund of the province

59(4)       Where a person who is a member of the civil service of the province becomes a member, officer, or employee, of the board and pursuant to The Civil Service Superannuation Act is classified or designated as being in the civil service for the purposes of that Act, or is a member of a group or class of persons that is so classified or designated, the board may provide for contributions by the board and that person to the fund established under that Act; and any such contributions are in lieu of any contributions in respect of that person to fund established pursuant to subsection (3).

S.M. 1989-90, c. 47, s. 29; S.M. 1991-92, c. 36, s. 23.

General jurisdiction

60(1)       The board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the board; and the action or decision of the board thereon is final and conclusive and is not open to question or review in any court; and no proceedings by or before the board shall be restrained by injunction, prohibition, or other process or proceeding in any court, or are removable by certiorari or otherwise into any court.

Particular jurisdiction

60(2)       Without hereby limiting the generality of subsection (1), it is declared that the exclusive jurisdiction of the board extends to determining

(a) whether any injury or death in respect of which compensation is claimed was caused by an accident within the meaning of this Part;

(b) the question whether any injury has arisen out of or in the course of an employment within the scope of this Part;

(c) the existence and degree of disability by reason of any injury;

(d) the existence and degree of an impairment, and whether it is the result of an accident;

(e) the loss of earning capacity resulting from an accident;

(f) the amount of average earnings and net average earnings;

(g) the existence, for the purpose of this Part, of the relationship of any member of the family of a worker as defined by this Act;

(h) the existence of dependency;

(i) whether or not an employer's undertaking or any part, branch or department of an employer's undertaking is in an industry within the scope of this Part, and the class, sub-class, group or sub-group to which an employer's undertaking or any part, branch or department thereof should be assigned;

(j) whether or not any worker in any industry is within the scope of this Part and entitled to compensation thereunder;

(k) whether any particular disease is peculiar to, or characteristic of, any particular industrial process, trade, or occupation, to which this Part applies;

(l) [repealed] S.M. 1989-90, c. 47, s. 30;

(m) whether the commuted value of a periodic payment under this Part is equivalent to the periodic payment;

(n) whether an annuity is of equal value to a lump sum payable under this Part;

(o) the costs for the year for a class, sub-class, group, sub-group or undertaking;

(p) the future cost of claims and the administrative expenses of the board;

(q) whether an employer employs fewer than 25 full-time or regular part-time workers;

(r) whether an employer is a new employer or a successor employer for the purpose of determining the employer's experience;

(s) whether a person is an artisan or a mechanic for the purposes of this Act.

Deemed worker and employer

60(2.1)     Notwithstanding the other provisions of this Act, where a person who is not a worker under this Part performs work for the benefit of another person, the board may deem the first person to be a worker, and the second person to be the employer of the first person, within the meaning of this Act; and the board may determine an amount that shall be deemed to be the earnings of the first person, for the purpose of this Part.

No jurisdiction over constitutional questions

60(2.2)     The board and the appeal commission do not have jurisdiction over constitutional questions.

Application

60(2.3)     Subsection (2.2) applies to determinations made after this section comes into force, regardless of the date of the accident.

Review by board

60(3)       Nothing in subsection (1) prevents the board from reconsidering from time to time any matter that has been dealt with by it or from rescinding, altering, or amending, any decision or order previously made, or making any further or supplementary order, all of which the board may do.

Legal precedent

60(4)       The decisions of the board shall always be given upon the real merits and justice of the case; and it is not bound to follow strict legal precedent.

S.M. 1989-90, c. 47, s. 30; S.M. 1991-92, c. 36, s. 24; S.M. 2005, c. 17, s. 38.

Initial determination

60.1(1)     An application for compensation or other benefits and all matters relating to assessment under this Part shall be determined by the board.

Reconsideration by board

60.1(2)     On the written request of a person who has a direct interest in a decision made under subsection (1), the board shall reconsider its decision.

Procedure for reconsideration

60.1(3)     The procedure for reconsidering a decision shall be determined by the board.

Reasons upon reconsideration

60.1(4)     Following reconsideration, the board may confirm, vary or reverse its decision and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons.

Appeal to appeal commission

60.1(5)     Following reconsideration, a person who has a direct interest in the matter may, in writing, appeal the decision to the appeal commission.

S.M. 1989-90, c. 47, s. 31; S.M. 1991-92, c. 36, s. 25.

Establishment of appeal commission

60.2(1)     There is hereby established an appeal commission, to be known as the Appeal Commission, to be appointed by the Lieutenant Governor in Council, and consisting of

(a) one or more appeal commissioners representative of the public interest, one of whom shall be designated as Chief Appeal Commissioner;

(b) one or more appeal commissioners representative of workers;

(c) one or more appeal commissioners representative of employers.

Term of office

60.2(2)     The Chief Appeal Commissioner and each appeal commissioner are to be appointed for the term fixed in the order appointing them, which must not exceed five years or be less than two years.

Eligible for reappointment

60.2(2.1)   The Chief Appeal Commissioner and each

appeal commissioner are eligible for reappointment.

Ineligible persons

60.2(3)     No member of the Board of Directors or employee of the board is eligible to be an appeal commissioner.

Remuneration of appeal commissioners

60.2(4)     The Lieutenant Governor in Council, or his or her designate, shall fix the remuneration of the Chief Appeal Commissioner and each of the appeal commissioners, and the remuneration shall be paid from the accident fund.

Powers after resignation or expiry of term

60.2(5)     If an appeal commissioner resigns or the appointment expires, the Chief Appeal Commissioner may authorize that individual to continue to exercise the powers of an appeal commissioner in any proceeding over which that individual had jurisdiction immediately before the end of the term.

Authorization continues until final decision made

60.2(6)     The authorization continues until a final decision in that proceeding is made.

Remuneration after resignation or expiry of term

60.2(7)     If the appeal commissioner performs duties under subsection (5), subsection (4) applies.

S.M. 1989-90, c. 47, s. 31; S.M. 2005, c. 17, s. 39.

Panels

60.3(1)     The Chief Appeal Commissioner shall establish one or more panels of the appeal commission, and each panel shall consist of

(a) one appeal commissioner appointed under clause 60.2(1)(a), who shall be the presiding officer of the panel;

(b) one appeal commissioner appointed under clause 60.2(1)(b);

(c) one appeal commissioner appointed under clause 60.2(1)(c).

Reference to panel

60.3(2)     The Chief Appeal Commissioner shall refer a matter that is before the appeal commission to a panel, or may at any time refer a matter that is before one panel to another panel.

Panel has authority of commission

60.3(3)     Where a reference is made to a panel, the panel has the power and authority of the appeal commission.

Sittings of commission or panel

60.3(4)     Sittings of a panel may be held at such times and places in Manitoba as the Chief Appeal Commissioner or his or her designate decides.

Quorum of panel

60.3(5)     Two members of a panel constitute a quorum of the panel.

Reference to new panel

60.3(6)     A decision of a panel is constituted by at least two votes concurring in result, and where there is no such decision, the Chief Appeal Commissioner shall refer the matter to a panel of three different commissioners to hear and decide the matter.

Decision of panel is that of board

60.3(7)     Subject to section 60.9, a decision of a panel is deemed to be a decision of the board.

S.M. 1989-90, c. 47, s. 31.

Conflict of interest

60.4        An appeal commissioner shall not participate in the hearing of a matter in which he or she has a direct personal interest, or in which the Chief Appeal Commissioner determines that the appeal commissioner has an actual or apparent conflict of interest.

S.M. 1989-90, c. 47, s. 31; S.M. 2005, c. 17, s. 40.

60.5(1)     [Repealed] S.M. 2005, c. 17, s. 41.

C.A.C. may delegate

60.5(2)     The Chief Appeal Commissioner may delegate in writing any of his or her powers or duties to an appeal commissioner appointed under clause 60.2(1)(a), subject to any terms and conditions set out in the delegation.

S.M. 1989-90, c. 47, s. 31; S.M. 2005, c. 17, s. 41.

Costs of commission

60.6        The operating costs of the appeal commission shall be paid by the board from the accident fund.

S.M. 1989-90, c. 47, s. 31.

Practice and procedure

60.7        Subject to any policies, by-laws or resolutions of the Board of Directors, the appeal commission may determine the practice and procedure for the conduct of matters before it.

S.M. 1989-90, c. 47, s. 31; S.M. 1991-92, c. 36, s. 26.

Jurisdiction of appeal commission

60.8(1)     Subject to section 60.9, the appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of

(a) appeals under subsection 60.1(5);

(b) determinations under subsection 68(4);

(c) any matter referred to it by the Board of Directors.

Powers of appeal commission

60.8(2)     The appeal commission has all the powers conferred on the board by section 55 and subsections 60(1) and (2).

Further investigation

60.8(3)     The Chief Appeal Commissioner may at any time refer a matter to the board for further investigation.

Representations and new evidence

60.8(4)     In hearing a matter under subsection (1), the appeal commission shall give all parties who have a direct interest in the matter an opportunity to make representations, and may allow the presentation of new or additional evidence.

Decision on appeal

60.8(5)     On hearing an appeal, the appeal commission may confirm, vary or reverse the decision appealed from and shall, on the written request of a person with a direct interest in the matter, provide a written summary of its reasons.

Commission bound by board policies

60.8(6)     The appeal commission is bound by the policies of the Board of Directors.

60.8(7)     [Repealed] S.M. 2005, c. 17, s. 42.

S.M. 1989-90, c. 47, s. 31; S.M. 1991-92, c. 36, s. 27; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 42.

Powers of Board of Directors

60.9(1)     Where the Board of Directors considers that the appeal commission has not properly applied the Act, regulations or a policy of the Board of Directors, it may stay the decision of the appeal commission pending rehearing of the matter under this section and

(a) in writing, direct a panel of three different commissioners of the appeal commission to rehear the matter; or

(b) on written notice to all persons who have a direct interest in the matter, direct that the matter be reheard by the Board of Directors, or by a committee of the Board of Directors, in which case the Board of Directors or the committee has all the powers and authority of the appeal commission, and sections 60.4, 60.7 and 60.8 apply with such modifications as the circumstances require.

Not a further level of appeal

60.9(2)     This section does not establish a further level of appeal.

Board may make policies re review

60.9(3)     The Board of Directors may make policies to define the circumstances under which it will review decisions of the appeal commission.

S.M. 1989-90, c. 47, s. 31; S.M. 2005, c. 17, s. 43.

Reconsideration by appeal commission

60.10(1)    A person who is directly interested in a decision of the appeal commission may apply to the Chief Appeal Commissioner for an order directing reconsideration of the decision on the ground that new evidence has arisen or has been discovered since the hearing.

Nature of new evidence required

60.10(2)    The Chief Appeal Commissioner may direct the appeal commission to reconsider its previous decision where the Chief Appeal Commissioner considers that the evidence referred to in subsection (1) is substantial and material to the decision, and

(a) did not exist at the time of the previous hearing before the appeal commission, or

(b) was not known to the applicant at the time of the previous hearing before the appeal commission and could not have been discovered through the exercise of due diligence.

Finality of decision

60.10(3)    A decision of the Chief Appeal Commissioner under this section is final and conclusive.

No general power of reconsideration

60.10(4)    Except as provided in this section, the appeal commission shall not reconsider any matter or rescind, alter or amend any decision or order previously made by it, or make any further or supplementary order.

Correction of clerical or typographical errors

60.10(5)    The appeal commission may correct clerical or typographical errors in any decision or order it has made.

S.M. 1989-90, c. 47, s. 31; S.M. 1991-92, c. 36, s. 28; S.M 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 44.

Annual report of appeal commission

60.11(1)    As soon as possible after the end of each calendar year and no later than March 31, the appeal commission must submit a report to the minister generally describing the performance of its duties under this Act.

Tabling report in Assembly

60.11(2)    The minister must table a copy of the report in the Assembly within 15 days after receiving it if the Assembly is sitting or, if it is not, within 15 days after the next sitting begins.

S.M. 2005, c. 17, s. 45.

Protection from liability

61          No action or proceeding may be brought against the board, a member of the Board of Directors, an employee or agent of the board, an appeal commissioner, a member of a medical review panel, the Fair Practices Advocate or a worker adviser acting under the authority of this Act for anything done or not done, or for any neglect,

(a) in the performance or intended performance of a duty under this Act or its regulations; or

(b) in the exercise or intended exercise of a power under this Act or its regulations;

unless the person was acting in bad faith.

S.M. 1989-90, c. 47, s. 32; S.M. 2005, c. 17, s. 46.

Board and employees not to be witnesses

62          None of the following persons is a compellable witness in a civil action or other proceeding to which the board is not a party respecting any document or information obtained, received or made under this Act or regulations, and may not be compelled to produce such documents:

(a) a member of the Board of Directors or a medical review panel;

(b) an appeal commissioner;

(c) the Fair Practices Advocate;

(d) a worker adviser;

(e) an employee or agent of the board.

S.M. 1989-90, c. 47, s. 33; S.M. 2005, c. 17, s. 47.

63 and 64   [Repealed]

S.M. 1989-90, c. 47, s. 34; S.M. 1991-92, c. 36, s. 29.

65          [Repealed]

S.M. 1991-92, c. 36, s. 29.

Reports of officers of board

66(1)       The board may act upon the report of any of its officers, and any inquiry or examination that it shall be deemed necessary to make may be made by any one of the officers of the board, or by a member of the Board of Directors or some other person appointed to make the inquiry or examination; and the board may act upon his report as to the result of the inquiry or examination.

Powers of officers

66(2)       The person appointed to make the inquiry or examination has, for the purposes thereof, all the powers conferred upon the board by section 55.

S.M. 1989-90, c. 47, s. 35; S.M. 2005, c. 17, s. 48.

Definitions

67(1)       In this section,

"opinion" means a full statement of the facts and reasons supporting a medical conclusion; (« avis »)

"panel" means a medical review panel. (« comité »)

67(2)       [Repealed] S.M. 1989-90, c. 47, s. 36.

Reference by board on its discretion

67(3)       Where in any claim or application by a worker for compensation a medical matter arises in which the board desires a further opinion, the board may refer the matter to a panel for its opinion in respect of the matter.

Reference to panel on request of worker

67(4)       Where in any claim or application by a worker for compensation the opinion of the medical officer of the board in respect of a medical matter affecting entitlement to compensation differs from the opinion in respect of that matter of the physician selected by the worker, expressed in a certificate of the physician in writing, if the worker requests the board, in writing before a decision by the appeal commission under subsection 60.8(5), to refer the matter to a panel, the board shall refer the matter to a panel for its opinion in respect of the matter.

Reference to panel on request of employer

67(4.1)     At the written request of an employer, the board may refer a medical matter to a panel for its opinion. The medical matter must be real and substantial and affect entitlement to compensation. The request must be received by the board before a decision by the appeal commission under subsection 60.8(5) is made.

Duties of chair

67(5)       Where a matter is referred to a panel, the chair

(a) must invite any physician who has given a certificate under subsection (4) to attend a meeting of the panel to discuss the matter;

(b) may order any medical examination or test; and

(c) may invite any other health care provider that the chair considers appropriate to attend a meeting of the panel to discuss the matter.

Panel may examine, consult

67(5.1)     A panel to whom a matter is referred may examine the worker and may consult with any health care provider that the panel considers appropriate.

Opinion in writing

67(6)       A panel to which a matter is referred under this section shall give a full report on its findings and its opinion in writing to the board which shall send a copy thereof to the worker concerned and any physician who gave a certificate under subsection (4) in respect of the matter.

Opinion of panel

67(7)       Where a matter is referred to a panel for its opinion, the opinion of a majority of the members of the panel is the opinion of the panel, but, if there is not an opinion common to the majority of the members of the panel, the opinion of the chair of the panel shall be deemed to be the opinion of the panel.

Dissenting opinion

67(8)       Where the opinion given by a medical review panel on a matter is not unanimous, the report and opinion given to the board under subsection (6) shall include the dissenting opinion.

Composition of medical review panels

67(9)       A medical review panel shall be composed of

(a) the chair of medical review panels appointed under subsection (10) or a physician appointed to act in his place and stead; and

(b) two physicians specially skilled in the medical matter to be considered by the panel selected as provided in subsection (11) or (12).

Chair of medical review panels

67(10)      The minister shall appoint a physician to be chair of medical review panels and a physician to act in the place and stead of the chair on any medical review panel on the request of the chair or where the chair is unable to act.

Selection of other members of medical review panel

67(11)      Where the board desires, or is required, to refer a medical matter to a medical review panel, the board shall notify the claimant for compensation and the employer of the claimant at the time of the accident to the claimant, and each shall select, to act on the panel, a physician

(a) who is willing to act on the panel; and

(b) whose name is on a list provided by the College of Physicians and Surgeons of physicians specially skilled in the medical matter to be considered by the panel.

Failure of parties to select

67(12)      If a person notified under subsection (11) fails to select a physician in accordance with that subsection, within 15 days after receiving the notification under that subsection, the board shall select, to act on the panel, a physician

(a) who is willing to act on the panel; and

(b) whose name is on a list provided by the College of Physicians and Surgeons of physicians specially skilled in the medical matter to be considered by the panel.

Ineligible physicians

67(12.1)    A physician shall not be selected to act, and shall not serve, on a medical review panel where the physician

(a) has examined or treated the worker;

(b) examines workers on behalf of the employer; or

(c) has acted as a consultant in the treatment of the worker.

Board to select in certain cases

67(12.2)    Where a worker is

(a) self employed;

(b) a member of the family of the employer; or

(c) a partner in, or a member of, the firm that is the employer;

or where the employer ceases to carry on business in the industry in which the injury occurred, the board shall exercise the employer's choice under subsection (11), as if it were the employer.

Provision of lists by College of Physicians and Surgeons

67(13)      The College of Physicians and Surgeons shall, from time to time, as requested by the board or the minister provide the board with lists of physicians who are specially skilled in various medical matters identified by the board as matters that arise on applications for compensation and who are willing to act on medical review panels.

67(14)      [Repealed] S.M. 2005, c. 17, s. 49.

67(15)      [Repealed] S.M. 1989-90, c. 47, s. 36.

Remuneration for members of panel

67(16)      Each member of a panel may be paid, from the Accident Fund, such remuneration as may be approved by the board and any travelling or out-of-pocket expenses incurred by him in performing his duties on the panel.

Procedures

67(17)      A panel may determine its own rules of procedure.

67(18)      [Repealed] S.M. 1989-90, c. 47, s. 36.

S.M. 1989-90, c. 47, s. 36; S.M. 1991-92, c. 36, s. 30; S.M. 2005, c. 17, s. 49.

Regulations of Board of Directors

68(1)       The Board of Directors may make regulations

(a) prescribing minimum annual earnings;

(b) prescribing deductions to be used in calculating net average earnings under subsection 40(3);

(c) prescribing a statutory benefit to be a collateral benefit under subsection 41(1);

(d) establishing benefit programs and group life insurance plans under section 43;

(e) adjusting compensation pursuant to subsection 44(1);

(f) prescribing the maximum annual earnings under subsection 46(2);

(g) prescribing the indexing factor under section 47;

(h) prescribing the annual indexing factor and biennial indexing factor under section 48;

(h.1) excluding industries, employers or workers from the application of section 49.3 (obligation to re-employ);

(i) [repealed] S.M. 2005, c. 17, s. 50;

(j) establishing a schedule of provincially funded industries under section 76.1;

(k) establishing a schedule of self-insured employers under section 76.2;

(l) creating new classes under section 78;

(m) prescribing an interest rate under subsections 80(6.1) and (6.2) (interest on under-assessment and over-assessment);

(n) prescribing a minimum assessment under subsection 81(9);

(o) [repealed] S.M. 2005, c. 17, s. 50;

(p) prescribing a penalty under subsection 86(2) (failure to pay assessment);

(q) [repealed] S.M. 2005, c. 17, s. 50;

(r) prescribing a minimum of pension for commutation under section 109.4;

(r.1) respecting administrative penalties under subsection 109.7(1), including

(i) prescribing the amounts of the administrative penalties that may be imposed, and

(ii) governing appeals from decisions to impose administrative penalties;

(s) respecting any matter it considers necessary or advisable to carry out the intent and purposes of this Act.

Approval of L.G.C. for benefit program regulation

68(2)       The Board of Directors shall obtain the approval of the Lieutenant Governor in Council before establishing a new benefit program under section 43, and the board shall provide the minister with financial information and such other information as the minister requires to advise the Lieutenant Governor in Council with respect to the benefit program.

Disallowance of regulation by L.G.C.

68(2.1)     A certified copy of a regulation made by the Board of Directors under this Act shall be sent to the minister immediately after it is made by the Board of Directors and may, within 30 days after the day it is received by the minister, be disallowed by the Lieutenant Governor in Council.

Coming into force of regulation

68(2.2)     A regulation that is not disallowed comes into force 31 days after it is received by the minister or on such later day as is specified in the regulation, and every regulation that comes into force shall be published in The Manitoba Gazette as soon as is practicable.

Statutes and Regulations Act does not apply

68(2.3)     The Statutes and Regulations Act does not apply to a by-law, order or rule made by the board under this Act, other than a rule of procedure.

Offence and administrative penalty

68(3)       Every person who contravenes a regulation commits an offence and is subject to an administrative penalty under subsection 109.7(1).

Board to determine right of action

68(4)       Where an action in respect of an injury is brought against an employer, a director of a corporation that is an employer or a worker of an employer, the board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the board determines that the right of action is removed by this Act, the action shall be forever stayed.

S.M. 1989-90, c. 47, s. 37; S.M. 1991-92, c. 36, s. 31; S.M. 1993, c. 48, s. 44; S.M. 2005, c. 17, s. 50; S.M. 2013, c. 39, Sch. A, s. 95.

Certified document is evidence

68.1        A document shall be admissible as evidence without further proof as to its substance where it is certified under the seal of the board to be a true copy, and purports to be signed by the secretary, the chief executive officer or such other officer as the board may authorize by resolution, and sets out the substance of an order, ruling or decision of the board, or information from a book, record, document or file of the board in the form of an extract or description.

S.M. 1989-90, c. 47, s. 38.

Audit of accounts

69(1)       The accounts of the board shall be audited by the Auditor General or by an auditor appointed by the Lieutenant Governor in Council for that purpose; and the costs of the audit shall be paid by the board.

Special audits

69(2)       Notwithstanding subsection (1) and in addition thereto, the Lieutenant Governor in Council or the Auditor General may at any time order an audit of or investigation into the accounts or affairs of the board and where the Lieutenant Governor in Council orders an audit or investigation he shall designate the person, who may be the Auditor General, to make the audit or investigation.

Program audit

69(3)       In addition to any audit under subsection (1) or (2), the Board of Directors must, at least once every five years, appoint an independent auditor to review the cost, efficiency and effectiveness of at least one program provided under this Act. The minister may determine which program is to be reviewed.

S.M. 2001, c. 39, s. 31; S.M. 2005, c. 17, s. 51.

Annual report by board

70          The board shall, as soon as possible after the close of each calendar year, and not later than March 31 next following, make a report to the minister of its transactions during the last preceding year; and the report shall contain a statement of the accounts required to be kept under section 87, a report about prevention activities under section 54.1, and such particulars as the Lieutenant Governor in Council may prescribe.

S.M. 2014, c. 31, s. 10.

Report to be laid before Assembly

71          The report shall be forthwith laid before the Legislative Assembly if the Assembly is then in session, and, if it is not then in session, within 15 days after the opening of the next session.

S.M. 2008, c. 42, s. 100.

Operating plan of board

71.1        The board shall, as soon as possible after the close of each year, and not later than March 31 next following, provide the minister with a five year plan respecting the operations of the board, including prevention activities under section 54.1.

S.M. 1991-92, c. 36, s. 32; S.M. 2014, c. 31, s. 11.

Plan to be laid before Assembly

71.2        The plan referred to in section 71.1 shall be forthwith laid before the Legislative Assembly if the Assembly is then in session and, if it is not then in session, within 15 days after the opening of the next session.

S.M. 1991-92, c. 36, s. 32; S.M. 2008, c. 42, s. 100.

Reports to be referred to committee

71.3        Upon being laid before the Legislative Assembly, the report referred to in section 70 and the plan referred to in section 71.1 stand permanently referred to the Standing Committee on Crown Corporations of the Legislative Assembly.

S.M. 1991-92, c. 36, s. 32; S.M. 2004, c. 42, s. 109.

CONTRIBUTION BY THE PROVINCE

Provincial assistance to defray expenses

72          To assist in defraying the expenses incurred in the administration of this Part there shall be paid to the board out of the Consolidated Fund such annual sum as the Lieutenant Governor in Council may direct; but the board may, and shall be deemed always to have had the authority to, pay its costs of administration from the accident fund.

ACCIDENT FUND

Accident fund continued

73(1)       A fund called the "accident fund" is continued for the payment of the compensation, outlays and expenses under this Part.

Assessment classes established

73(2)       Subject to section 79 (assignment of industry to class and group) and the regulations, the following classes are established for the purpose of assessment:

(a) Class A — Provincially funded industries set out in a schedule established by the board in accordance with section 76.1;

(b) Class B — Self-insured employers set out in a schedule established by the board in accordance with section 76.2;

(c) Class C — the Crown in right of Manitoba and those agencies of the government described in section 76 and not otherwise included under Class A, Class B or Class E;

(d) Class D — The City of Winnipeg;

(e) Class E — Employers in all industries in Manitoba not included in the above classes and not excluded by regulation under section 2.1.

S.M. 1991-92, c. 36, s. 33; S.M. 2005, c. 17, s. 52.

Optional coverage for firms in excluded industries

74(1)       An employer's undertaking, or an individual plant that is excluded from being within the scope of this Part by regulation under section 2.1 may on the application of the employer be admitted by the board as being within the scope of this Part, subject to such terms and conditions, and for such period, as the board may deem adequate and proper.

74(2)       [Repealed] S.M. 1989-90, c. 47, s. 39.

Optional coverage for employers and directors

74(3)       Any employer or director of a corporation in an industry within the scope of this Part may be admitted by the board as being entitled for himself or herself, and his or her dependants, to the same compensation as if the employer or director were a worker within the scope of this Part.

Compensation to employer, director of corporation

74(4)       Unless an application to come within the scope of this Part is approved by the board, compensation is not payable under this Part to

(a) an employer; or

(b) a director of a corporation that is the employer;

(c) [repealed] S.M. 2005, c. 17, s. 53.

S.M. 1989-90, c. 47, s. 39; S.M. 1991-92, c. 36, s. 34; S.M. 1993, c. 48, s. 44; S.M. 2005, c. 17, s. 53.

Optional coverage for independent contractor

75(1)       An independent contractor may, on his own application, be admitted by the board as being within the scope of this Part subject to such terms and conditions, and for such period, as the board may deem adequate and proper.

Independent contractor as employee of employer

75(2)       Where an independent contractor is admitted as being within the scope of this Part, he shall be deemed to be

(a) a worker in the employment of himself in so far as this Part applies to workers in the employment of an employer; and

(b) the employer of himself in so far as this Part applies to employers of a worker.

Meaning of "independent contractor"

75(3)       In this section, "independent contractor" means a self-employed person, including a partner in a partnership, who carries on or engages in any industry, and who does not employ any workers in connection with that industry.

S.M. 2005, c. 17, s. 54.

Non-profit or charitable organization and volunteers admitted

75.1(1)     A non-profit or charitable organization may apply to the board — on its own behalf and on behalf of any person or group of persons who performs volunteer service for the organization — to be admitted as being within the scope of this Part. The board may admit the organization and the person or group of persons, subject to any terms and conditions, and for the period, that the board considers appropriate.

Volunteers deemed to be workers

75.1(2)     A person admitted under subsection (1) is deemed to be a worker of the non-profit or charitable organization.

Average earnings

75.1(3)     The average earnings of a person deemed to be a worker under subsection (2) are the greater of

(a) the amount calculated in accordance with section 45; and

(b) an amount determined by the board as fairly representing the probable earning capacity of the person, which amount must not exceed the average of the industrial average wage for each of the 12 months before July 1 in the year before the accident.

Automatic indexation

75.1(4)     The average earnings referred to in subsection (3) must be adjusted on the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

S.M. 2005, c. 17, s. 55.

Application to Crown employees

76(1)       Subject as in this section provided, this Part applies to any employment by or under the Crown in right of the Province of Manitoba or by or under an agency of the government.

Workers of agencies of the government

76(2)       Subject to subsections (3) and (4), workers employed by an agency of the government shall be deemed to be workers employed under the Crown in the right of Manitoba for the purposes of this Act.

Workers of agency of government before July 11, 1972

76(3)       Subject to regulations made under section 78, where before July 11, 1972 an agency of the government was admitted by the board as an industry or employer within the scope of this Part, the workers employed by the agency of the government shall not be deemed to be workers employed by the Crown in right of Manitoba and the agency of the government shall be deemed to be a separate employer, for the purposes of this Part unless, before this provision comes into force, the Lieutenant Governor in Council declares that subsection (2) applies to the workers or any class thereof.

Workers of government agency dealt with separately

76(4)       Subject to regulations made under section 78, where before this provision comes into force the Lieutenant Governor in Council declared that workers employed by an agency of the government not be deemed to be workers employed by the Crown in right of Manitoba for the purposes of this Part, the workers shall not be deemed to be workers employed by the Crown in right of Manitoba and the agency of the government shall be deemed to be a separate employer for the purposes of this Part.

Meaning of "agency of the government"

76(5)       In this section the expression "agency of the government" means

(a) any board, commission, association, or other body, whether incorporated or unincorporated, all the members of which, or all the members of the board of management or board of directors of which,

(i) are appointed by an Act of the Legislature or by order of the Lieutenant Governor in Council, or

(ii) if not so appointed, in the discharge of their duties are public officers or servants of the Crown, or for the proper discharge of their duties are, directly or indirectly, responsible to the Crown, or

(b) any corporation the election of the board of directors of which is controlled by the Crown, directly or indirectly, through ownership of shares of the capital stock thereof by the Crown or by a board, commission, association, or other body to which clause (a) applies.

S.M. 1991-92, c. 36, s. 35.

Schedule of provincially funded industries

76.1(1)     The board may by regulation establish a schedule of provincially funded industries.

Transfer or creation of class

76.1(2)     The board may by regulation transfer a provincially funded industry from Class A to another class or to a new class, in which case the board shall make such adjustment and disposition of funds, reserves and accounts, and require payment of such funds as it considers necessary to ensure that no class is adversely affected.

S.M. 1991-92, c. 36, s. 36.

Schedule of self-insured employers

76.2(1)     The board may by regulation establish a schedule of self-insured employers.

Withdrawal from schedule

76.2(2)     The board may by regulation transfer a self-insured employer to another class or to a new class, in which case the board shall make such adjustments and disposition of funds, reserves and accounts, and require payment of such funds as it considers necessary to ensure that no class is adversely affected.

Individual liability

76.2(3)     Employers for the time being included in the schedule of self-insured employers are liable individually to pay for the cost of compensation paid to their workers as the cost is determined by the board.

Levy for added compensation for past accidents

76.2(4)     The board may, in such manner and at such time or times as it considers appropriate, levy and collect money required to pay for increases in compensation for past accidents from employers who are or have been included in the schedule of self-insured employers.

S.M. 1991-92, c. 36, s. 36.

Authority to defer collection of funds

76.3(1)     The board may defer the collection of the funds, or any portion of the funds, required for the future cost of claims arising in respect of

(a) industries set out in the schedule of provincially funded industries;

(b) the Crown in right of Manitoba or an agency of the government; and

(c) The City of Winnipeg.

Board may defer collection from self-insurers

76.3(2)     The board may defer the collection of funds, or any portion of the funds, required for the future cost of claims from an employer included in the schedule of self-insured employers where the employer provides security that the board considers sufficient to guarantee the future cost of claims.

Board may require deposit for compensation

76.3(3)     The board may require an employer referred to in this section to deposit funds with the board from time to time, from which the board may pay compensation for accidents to workers of the employer.

S.M. 1991-92, c. 36, s. 36.

Deferred funds are receivables

76.4        Where the board defers the collection of funds under section 76.3, the amount deferred is a receivable from

(a) the industries set out in the schedule of provincially funded industries to be apportioned in such manner as the board may determine;

(b) the employer in the schedule of self-insured employers liable to pay the future cost of the claim;

(c) the Crown in right of Manitoba and the agencies of the government to be apportioned in such manner as the board may determine; and

(d) the City of Winnipeg.

S.M. 1991-92, c. 36, s. 36.

Guarantee by the Government of Manitoba

76.5        Where, in the opinion of the board,

(a) an industry set out in the schedule of provincially funded industries; or

(b) an agency of the government included in clause 73(c);

is unable to pay the future cost of claims, the Government of Manitoba shall pay to the board such sum as the board determines is necessary to meet the future cost or, at the option of the Government of Manitoba, the board shall transfer the future cost or a portion thereof to the Crown in right of Manitoba to pay as the cost becomes due.

S.M. 1991-92, c. 36, s. 36.

Determination of amount payable

76.6        The board may include, in the amount payable by the employers referred to in section 76.3, such sum as the board considers appropriate for the administrative expenses of the board and the costs incurred under section 77.1 (work experience program).

S.M. 1991-92, c. 36, s. 36; S.M. 2005, c. 17, s. 56.

Added sum for funds

76.7        The board may, with the approval of an employer referred to in section 76.3, include in the amount payable by the employer such sum as the board considers appropriate for the purposes of clauses 81(1)(b) and (c) and subsection 81(2.1).

S.M. 1991-92, c. 36, s. 36.

Determining persons as workers

77(1)       The Lieutenant Governor in Council may by regulation declare any persons or class of persons to be workers in the employment of the government and governed by the terms of this Act, and subsections (3) and (3.1) shall apply unless the regulation otherwise provides.

Regulation may be retroactive

77(1.1)      A regulation made under subsection (1) may be made retroactive to any date and, subject to The Statutes and Regulations Act, is valid against all persons as of that date.

Method of describing class

77(2)       For the purposes of subsection (1), a class of persons may be described by reference to the nature of the work or duties they perform, the nature of the business or undertaking at which they are working, a geographical area within which they perform their work, the source of their remuneration, the method by which they are assigned to places to perform work, a description of any program or scheme in which they are participating, or by any one or more of those things.

Average earnings of declared worker

77(3)       Subject to subsection (3.1), the average earnings of a person declared under subsection (1) to be a worker are the greater of

(a) the amount calculated in accordance with section 45; and

(b) 1/2 of the average of the industrial average wage for each of the 12 months before July 1 in the year before the accident.

Calculation where death or long-term loss

77(3.1)     Where a person declared under subsection (1) to be a worker dies or, in the opinion of the board, sustains a long-term loss of earning capacity as a result of an accident, the amount under clause (3)(b) is the average of the industrial average wage for each of the 12 months before July 1 in the year before the accident.

Automatic indexation

77(3.2)     The average earnings before the accident referred to in subsection (3) shall be adjusted on the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

Rights under this Act in lieu of other rights

77(4)       Where a person is declared to be a worker, or is within a class of persons that are declared to be workers, under subsection (1), the word "employer" in subsections 9(7), 9(7.1) and 13(1) means both the government and the person for whom the work is performed.

S.M. 1989-90, c. 47, s. 40 S.M. 1991-92, c. 36, s. 37; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 57; S.M. 2013, c. 39, Sch. A, s. 95.

Person in work experience program declared worker

77.1(1)     The board may, by order, declare any person or group of persons who participates in a work experience program and who is not otherwise considered a worker under this Act, to be a worker within the scope of this Part, subject to any terms and conditions, and for the period, that the board considers appropriate.

Method of describing class

77.1(2)     For the purposes of subsection (1), a group of persons may be described by reference to the nature of the work experience program or in any other manner that the board determines.

Average earnings

77.1(3)     For the purposes of this Act, the average earnings of a worker under subsection (1) must be calculated under subsection 77(3) or (3.1), as the case may be, unless the board provides otherwise in the order.

Automatic indexation

77.1(4)     The average earnings referred to in subsection (3) must be adjusted on the first day of the month following the second anniversary of the accident and annually thereafter by applying the indexing factor determined under section 47.

Deemed employer

77.1(5)     For the purposes of this Part, both

(a) the educational or training institution that places the person in the work experience setting; and

(b) the person who accepts the person participating in a work experience program;

are deemed to be the employer of a worker under subsection (1).

Period of employment

77.1(6)     The period of employment of a worker under subsection (1) is deemed to begin when the person is exposed to the risks of the workplace and is deemed to end when the person is no longer exposed to the risks of the workplace, as determined by the board.

Determining record and experience of deemed employer

77.1(7)     When determining the record and experience of a deemed employer under subsection (5), the board must exclude the cost of compensation awarded to any worker under this section.

S.M. 2005, c. 17, s. 58.

Regulations affecting classes of industries

78(1)       The board may, by regulations,

(a) create new classes in addition to those mentioned in section 73;

(b) consolidate or rearrange from time to time any of the existing classes; and

(c) withdraw from a class any industry included therein and transfer it wholly or, in part to any other class, or form it into a separate class.

Adjustment of funds

78(2)       In case of any rearrangement of the classes, or the withdrawal of an industry from any class, the board may make such adjustment and disposition of the funds, reserves, and accounts, of the classes affected as may be deemed just and expedient.

Assignment of industry to class, group

79          The board shall assign each employer in an industry within the scope of this Part to an appropriate class, sub-class, group or sub-group, as determined by the board, and where an employer's undertaking includes departments that are assignable to different classes, sub-classes, groups or sub-groups, the board may

(a) assign the employer to the class, sub-class, group or sub-group of the principal department of the undertaking; or

(b) assign each department to the appropriate class, sub-class, group or sub-group.

S.M. 1991-92, c. 36, s. 38.

Terms and conditions on exclusion

79.1        Where a previously included industry is excluded by regulation under section 2.1, the board may impose terms and conditions it considers necessary, including making such adjustments and dispositions of funds, reserves and accounts and requiring payment of such funds, to ensure that no class, sub-class, group or sub-group is adversely affected.

S.M. 2005, c. 17, s. 59.

Payroll estimates and certified copies

80(1)       An employer shall, on becoming an employer and at such other times as the board may require, furnish to the board an estimate of the amount of the payroll of each undertaking in an industry for the following year, with such other information required by the board for the purpose of

(a) assigning the employer or undertaking of the employer to a class, sub-class, group or sub-group; and

(b) making assessments under this Act;

and the employer shall, at the close of each year, and at such other times as the board may require, furnish certified copies of the payroll.

Record of wages

80(2)       Every employer within the scope of this Part shall keep a record of the wages earned by his employees, showing the name of each worker, the dates and time worked, and the wages earned.

Nature of work

80(3)       Any person who, in the opinion of the board, may be an employer under Part I shall, on request of the board at any time, furnish and deliver to the board a statement signed by him giving full particulars of the nature of the different classes of work carried on and such particulars as may be required by the board concerning his payroll.

Basis of estimated payroll

80(4)       In computing the amount of the payroll of an employer for the purpose of assessment, the board must only consider the portion of the payroll that represents workers and employment within the scope of this Part.

Insurable earnings for payroll

80(4.1)     In computing the amount of the payroll of an employer in any year after 1991 and before the day this subsection comes into force, the board must only consider the annual wages of a worker at or below the maximum annual earnings mentioned in section 46.

Offence and administrative penalty

80(5)       A person who fails to comply with subsections (1), (2) or (3) commits an offence.

Board may estimate assessment

80(6)       Where

(a) an employer does not furnish the board with the prescribed statement within the prescribed time; or

(b) the statement referred to in clause (a) does not, in the board's opinion, reflect the probable amount of the payroll of the employer or correctly describe the nature of the different classes of work carried on;

the board may base an assessment or supplementary assessment on a sum that in its opinion is the probable amount of payroll or the correct nature of the different classes of work carried on, and the employer is bound thereby.

Interest on under-assessment

80(6.1)     Where an estimate of probable payroll by an employer, or by the board under subsection (6), is less than the actual amount of the payroll determined at the end of the calendar year, the employer is liable to pay to the board the difference between the amount that the employer was assessed, and the amount that the employer is assessed on the basis of actual payroll, together with interest thereon at a rate and on terms prescribed by the board by regulation from the date the sum would otherwise have been payable to the date of payment; and payment of the difference and the interest may be enforced in the same manner as the payment of an assessment.

Interest on over-assessment

80(6.2)     Where an estimate of probable payroll by an employer, or by the board under subsection (6), is more than the actual amount of payroll determined at the end of the calendar year, the board shall refund or, in its discretion, credit the employer with the difference between the amount that the employer was assessed, and the amount that the employer is assessed on the basis of the actual payroll, together with interest thereon at a rate and on terms prescribed by the board by regulation from the date the assessment is paid in full to the date of refund or credit.

Continuing liability of employer

80(7)       Where, for any reason, an employer liable to assessment is not assessed in any year, he is nevertheless liable to pay to the board the amount for which he should have been assessed; and payment of that amount may be enforced in the same manner as the payment of an assessment may be enforced.

Information furnished by municipal officers

80(8)        On the written request of the board, the clerk or secretary-treasurer of a municipality other than a city, shall make a return to the board, upon forms provided by the board for the purpose, showing the names, addresses, nature of business, and usual number of employees, of all employers of labour carrying on in that municipality any industry or business other than farming.

Remuneration

80(9)       The board may give remuneration for the return out of the accident fund.

Notice of building permits granted

80(10)      Within three days after the granting of any building permit in any municipality, written notice thereof shall be given to the board by the person whose duty it is to keep a record of the permits.

S.M. 1989-90, c. 47, s. 41; S.M. 1991-92, c. 36, s. 39; S.M. 2005, c. 17, s. 60.

Waiver of requirement to furnish estimate of payroll

80.1(1)     Upon the application of an employer, the board may waive the requirement to furnish an estimate of payroll under subsection 80(1).

Certain parts of Act do not apply

80.1(2)     Subsections 80(6) and (6.1) and subsection 81(7.3) do not apply where the board has waived the requirement to furnish an estimate of payroll.

Assessments based upon actual payroll

80.1(3)     Where the board has waived the requirement to furnish an estimate of payroll, the employer must provide the board with a certified copy of a record of wages of the employer's actual quarterly or monthly payroll, or some other period the board determines. The employer must pay to the board the assessment due thereon based on the rate fixed by the board.

Time for payment

80.1(4)     An assessment under subsection (3) must be paid at the time required by the board.

Liability for interest

80.1(5)     An employer who fails to pay an assessment at the time required by the board is liable to pay the board interest on the unpaid assessment from the date determined by the board under subsection (4) to the date of payment at the rate provided for in subsection 86(2).

Revocation of waiver

80.1(6)     The board may revoke a waiver given under subsection (1) at any time. In that case, the employer is liable to pay an assessment under this Part as if no waiver had been granted, subject to receiving a credit for the amounts paid for that year, before the waiver was revoked.

S.M. 2005, c. 17, s. 61.

Annual assessment for accident fund

81(1)       For the purpose of creating and maintaining an adequate accident fund, the board shall every year assess and levy upon and collect from the employers in each class by an assessment or by assessments made from time to time rated upon the payroll, or in such other manner as the board considers advisable or necessary, sufficient funds, according to an estimate to be made by the board in each year

(a) to meet the costs for the year, including administrative expenses, the future cost of claims, and changes in liabilities, so as to prevent employers in future years from being unduly burdened with the costs arising from accidents in previous years;

(b) to provide a stabilization fund to meet the costs arising from extraordinary events that would otherwise unfairly burden the employers in a class, sub-class, group, or sub-group in the year of the events;

(c) to provide a fund to meet the part of the cost of claims of workers that, in the opinion of the board, results from

(i) pre-existing or underlying conditions,

(ii) an occupational disease where the exposure to the probable cause of the injury occurs outside Manitoba,

(iii) a loss of earnings from an employment other than that of a worker's employer at the time of the accident,

(iv) an increase in benefits under subsection 40(5), 45(3) or 45(4), or

(v) such other circumstances as the board determines would unfairly burden a particular class, sub-class, group or sub-group, or employer;

(d) to (g) [repealed] S.M. 1992, c. 58, s. 37;

(h) to provide a fund to meet the cost of claims of persons declared to be workers under section 77.1 (work experience program);

(i) to provide a fund to meet the costs of the board's expenditures for prevention activities under section 54.1.

Deferred collection of future payments

81(1.1)     Notwithstanding subsection (1), the board may defer collection of the future cost of claims where payment is guaranteed by the Government of Manitoba or the Government of Canada, or where an employer included in the schedule of self-insured employers provides security that the board accepts under subsection 76.3(2).

Transfer from stabilization fund

81(2)       The amount of an assessment and levy made for the fund referred to in clause (1)(c) may be transferred to the fund from the stabilization fund referred to in clause (1)(b).

Reinsurance against disaster

81(2.1)     The board may reinsure with an insurer against the risk, or a portion of the risk, of losses arising from a catastrophe, disaster or other like circumstance that may, in the opinion of the board, significantly burden the accident fund.

How assessment to be made

81(3)       Assessments may be made in such manner and form, and by such procedure, as the board may deem adequate and expedient, and may be general as applicable to any class or sub-class, or special as applicable to an employer's undertaking, or an individual plant or department thereof.

Collection of assessments

81(4)       Assessments may, wherever it is deemed expedient, be collected in half-yearly, quarterly, or monthly, instalments, or otherwise; and, where it appears that the funds in any class are sufficient for the time being, any instalment may be abated or its collection deferred.

Deficiency in assessments

81(5)       Where in any year the estimated assessments in any class, sub-class, group or sub-group prove insufficient, the board may

(a) make such further assessments and levies during the year as may be necessary;

(b) temporarily advance the amount of any deficiency out of any fund provided for the purpose; or

(c) add the deficiency to any later assessment for a period not exceeding three years.

Notice to employer of assessment due

81(6)       The board shall give notice to each employer of the amount of each assessment due from time to time in respect of the employer's undertaking and the time when it is payable.

Giving of notice

81(7)       The notice may be sent by post to the employer, and shall be deemed to be given to him on the day on which the notice is posted.

Giving notice of assessment to employers

81(7.1)     The board may give the notice referred to in subsection (6) by

(a) publishing a notice in The Manitoba Gazette containing a statement of percentages and rates fixed by the board and the industries to which they apply; or

(b) sending a notice to each employer containing a statement of percentages and rates fixed by the board in the employer's industries.

Board may revise assessment on notice

81(7.2)     The board may revise a percentage or rate at any time, and notice of the revision shall be given in accordance with subsection (7.1), and the new percentage or rate has effect as if it were the percentage or rate originally fixed by the board.

Basis of employer's payment of assessments

81(7.3)     A payment of an assessment shall in the first instance be made by an employer based on an estimate furnished by the employer under subsection 80(1), (3) or (4), unless the board makes an estimate under subsection 80(6), in which case the board's estimate applies.

Levies for increases in compensation

81(8)       Notwithstanding any other provision of this Act, where an amendment to this Act is hereafter enacted that results in increases in compensation payable in respect of accidents that happened before the amendment is enacted, any additional moneys required to provide for the increases may be levied and collected by the board, over such period as the board deems advisable, from the employers who, either before or after the coming into force of this subsection, are or were within the scope of this Part.

Minimum assessment

81(9)       The board may by regulation establish a minimum assessment, and no assessment levied by the board against an employer shall be less than the minimum assessment.

S.M. 1989-90, c. 47, s. 42; S.M. 1991-92, c. 36, s. 40; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 62; S.M. 2014, c. 31, s. 13.

Definition

81.1(1)     In this section, "business enterprise" means property and assets of any nature or kind used in connection with the business of an employer, including inventory, equipment, receivables or intangibles.

Certificate required on disposition of business enterprise

81.1(2)     Where an employer disposes of all or substantially all of its business enterprise, the employer must obtain a certificate from the board stating

(a) that the board has no claim under this Act against the employer; or

(b) that the board has a claim and the employer has made arrangements for payment of it.

Delivery of certificate to purchaser

81.1(3)     The employer must deliver a copy of the certificate under subsection (2) to the purchaser.

Effect on purchaser of no certificate

81.1(4)     Where a purchaser fails to obtain a copy of the certificate under subsection (2), the purchaser is jointly and severally liable with the employer for any amount owing to the board under this Act by the employer. The purchaser has a right of action against the employer for any amount that the purchaser is required to pay to the board under this section.

S.M. 1989-90, c. 47, s. 43; S.M. 1992, c. 32, s. 7; S.M. 2005, c. 17, s. 63.

Rates for kinds of employment in same class

82(1)       The board may establish rates of assessment among sub-classes, groups or sub-groups in the same class with such differences in rates among them as the board considers fair and just, and where in the opinion of the board the hazard in a sub-class, group or sub-group differs from the average in the class, sub-class or group to which it is assigned, the board may

(a) confer or impose a special rate, differential or assessment to correspond with the relative hazard of the sub-class, group or sub-group; and

(b) adopt a system of rating to take into account the relative hazard of the sub-class, group or sub-group.

Reduced assessments and refunds

82(2)       Where, in the opinion of the board, the record and experience of accidents among the workers of an employer is better than the average record and experience of accidents among the workers of other employers in the same class, sub-class, group or sub-group, the board may reduce the amount of any assessment made upon that employer, or refund a portion of any assessment paid by that employer.

Increased and additional assessments

82(3)       Where, in the opinion of the board, the record and experience of accidents among the workers of an employer is worse than the average record and experience of accidents among the workers of other employers in the same class, sub-class, group or sub-group, the board may increase the amount of any assessment made upon that employer, or make a special additional assessment upon that employer.

Determination of experience

82(4)       In determining the record and experience of an employer, the board may

(a) exclude the cost of compensation awarded to the workers of the employer resulting from the negligence of another employer or the workers of another employer;

(b) include the cost of compensation awarded to the workers of another employer resulting from the negligence of the employer or the workers of the employer;

(c) deem the cost of any claim in which a worker dies in an accident to be an amount determined by the Board of Directors based on actuarial principles; or

(d) exclude that portion of the cost of compensation awarded to the workers of the employer that, in the board's opinion, would unfairly burden a particular employer.

Transfer of cost to other class where negligence

82(5)       Where the board determines that a worker's injury is the result of the negligence of an employer, or the worker of an employer, who is in a class other than that of the injured worker, the board may direct that the compensation, or any part of the compensation, awarded to the injured worker be charged against the class of the negligent employer or worker.

Assessment reduction

82(6)       Where, in the opinion of the board, sufficient precautions have been taken for the prevention of accidents to workers in the employment of an employer, and the accident record of the employer is satisfactory, the board may

(a) reduce the amount of any contribution to the accident fund for which the employer is liable; or

(b) provide an incentive to the employer for prevention activities.

Assessment surcharge

82(7)       Where, in the opinion of the board, sufficient precautions have not been taken for the prevention of accidents to workers in the employment of an employer and the accident record of the employer is unsatisfactory, the board may increase the amount of any contribution to the accident fund for which the employer is liable.

Finality of assessments

82(8)       The board may limit the time within which an employer, in respect of determinations made in previous years, may be reclassified, reassessed or entitled to a transfer of costs from the employer's record and experience.

S.M. 1991-92, c. 36, s. 41; S.M. 2005, c. 17, s. 64; S.M. 2014, c. 31, s. 14.

Security by employer in certain cases

83(1)       Where the board is of the opinion that it is necessary or advisable because of the nature of an employer's undertaking, including its temporary nature or the possibility of a default in the payment of an assessment under this Part, the board may require the employer to pay, or to give security for payment of, the amount of the assessment for which the employer would have been liable if the undertaking had been in existence at the time of the preceding assessment.

Judge may restrain employer where no payment

83(2)       Where an employer fails to comply with a requirement of the board under subsection (1), a judge of the Court of Queen's Bench may, on application of the board, restrain the employer from carrying on business in an industry to which this Part applies until the employer complies with the requirement.

S.M. 1989-90, c. 47, s. 44; S.M. 1991-92, c. 36, s. 42.

Assessment respecting grant

84          In addition to the assessments made under sections 81 to 83, the board may charge the amount of the grant referred to under section 84.1 by way of a special assessment against a class, sub-class, group, sub-group or employer.

S.M. 1991-92, c. 36, s. 43.

Grant to government for expenses

84.1(1)     Subject to subsection (2), the board shall make a grant from the accident fund to the Government of Manitoba in an amount determined by the Lieutenant Governor in Council to assist in defraying the reasonable expenses properly incurred by the Government of Manitoba in its administration of The Workplace Safety and Health Act and the reasonable expenses of worker advisers and employees appointed under subsection 108(1).

Annual increase in grant

84.1(2)     The amount of the grant referred to in subsection (1) shall not be increased in any year by more than the increase in the board's total costs for the year over such costs for the previous year, as set out in the annual report of the board.

S.M. 1991-92, c. 36, s. 44.

Collection of assessments by board

85(1)       Where an assessment or part thereof or deficiency is not duly paid in accordance with the terms of the assessment and levy, the board has a right of action against the defaulting employer in respect of the amount unpaid, and any penalties imposed under the provisions of this Act, together with costs of the action.

Certificate of default filed in court

85(2)       Where default is made in any payment required to be paid to the board under this Act, including an assessment or any part of an assessment, the board may issue a certificate stating that the amount is required to be paid to the board, the amount owing, and by whom it is payable, and the certificate, certified under the seal of the board to be a true copy, and purporting to be signed by the secretary, the chief executive officer or such other officer as the board may authorize by resolution, may be filed with the registrar of the Court of Queen's Bench, and when so filed shall become an order of that court, and may be enforced as a judgment of the court against the person for the amount mentioned in the certificate.

S.M. 1989-90, c. 47, s. 45; S.M. 1991-92, c. 36, s. 45.

Prohibition from carrying on business

85.1        Where an employer defaults in the payment of an assessment or any part of it and

(a) an execution issued on a judgment entered with respect to the unpaid assessment is returned with a certificate from a sheriff or bailiff stating that the execution is not wholly satisfied; and

(b) the employer continues to carry on a business in an industry to which this Act applies;

a judge of the Court of Queen's Bench may, on application made on behalf of the board, restrain the employer from carrying on business in an industry to which this Act applies until the unpaid assessment and the costs of the application are paid.

S.M. 1989-90, c. 47, s. 46.

Liability of directors for money owing

85.2(1)     Where an employer who defaults in the payment of money to the board under this Act is a corporation, a director of the corporation at the time the amount is due, other than a director elected pursuant to a collective agreement that entitles the workers employed by the corporation to have representation on the board of directors, is jointly and severally liable with the corporation to pay to the board any amount owing in excess of $1,000., and section 85 applies to a director of a corporation as if the director were the employer.

Contribution by other directors

85.2(2)     A director who satisfies a claim under this section is entitled to contribution from other directors liable for the claim.

S.M. 1991-92, c. 36, s. 46.

Penalty for failure to make returns

86(1)       Where

(a) an employer refuses or neglects to furnish the board, within the prescribed time, with a payroll return or other statement required under subsections 80(1), (2) and (3); or

(b) the statement referred to in clause (a) does not, in the opinion of the board, based on an audit of the employer, reasonably reflect the probable amount of the payroll of the employer or correctly describe the nature of the different classes of work carried on;

the employer is subject to an administrative penalty under subsection 109.7(1)

Penalty for failure to pay assessment

86(2)       An employer who refuses or neglects to pay an assessment or the provisional amount of an assessment, or an instalment or part of an instalment, is liable to and shall pay to the board interest on the amount unpaid, at a rate and on terms prescribed by the board by regulation; and the interest shall be added to the amount of the assessment and become part of it, and payment may be enforced in the same manner as the payment of any other assessment made by the board.

Relief from penalties

86(3)       Notwithstanding anything in this section, the board, if satisfied that the default was excusable, may in any case relieve the employer in whole or in part from liability under this section.

86(4)       [Repealed] S.M. 1989-90, c. 47, s. 47.

S.M. 1989-90, c. 47, s. 47; S.M. 1991-92, c. 36, s. 47; S.M. 2005, c. 17, s. 65.

Separate accounts for each class or fund

87          Separate accounts shall be kept of the amounts collected and expended in respect of every class, sub-class, group or sub-group and of every fund set aside by way of reserve or as a special fund for any purpose, but for the purpose of paying compensation the accident fund shall, nevertheless, be deemed one and indivisible.

S.M. 1991-92, c. 36, s. 48.

Annual adjustment of assessment

88(1)       On or before the April 30 in each year the amount of the assessment for the preceding calendar year shall be adjusted upon the actual requirements of the class and upon the correctly ascertained payroll of each employer; and the employer shall forthwith make up and pay to the board any deficiency, or the board shall refund to the employer any surplus, or credit it upon the succeeding assessments, as the case may require.

Change in ownership of undertaking

88(2)       Where a change of ownership occurs in respect of an employer's undertaking, or an individual plant or department thereof, the board may levy any part of the deficiency on either or any of the successive owners or employers, or pay or credit to any one or more of those owners the surplus as the case may require; but as between or amongst the successive owners the assessments in respect of the employment shall, in the absence of an agreement between the respective owners or employers determining it, be apportionable, as nearly as may be, in accordance with the proportions of the payroll of the respective periods of ownership or employment.

S.M. 1991-92, c. 36, s. 49.

Work done for municipal corporation under contract

89(1)       Where any work within the scope of this Part is performed under contract for any municipal corporation, or for any board or commission having the management of any work or service operated for the municipal corporation, any assessment in respect of the work may be paid by the corporation, board, or commission, as the case may be, and the amount of the assessment deducted from any moneys due the contractor in respect of the work.

Right of principal as against contractor

89(2)       Where a principal is or may become liable for an assessment with respect to work carried on by a contractor, the principal may withhold from any moneys payable to the contractor such amount as the board may estimate as the probable amount for which the principal is or may become liable, and, in any action that the contractor may bring against the principal, the principal may offset the amount, and the contractor is not entitled to recover from the principal anyportion thereof; but after final adjustment by the board of the amount due with respect to the work carried on by the contractor,the contractor is entitled to any amount still remaining in the hands of the principal after payment of the amount due to the board.

Contractor as principal

89(3)       As between contractor and sub-contractor, the contractor shall be deemed a principal.

Liability of contractor and principal

90(1)       Where any work within the scope of this Part is undertaken for any person by a contractor, both the contractor and the person for whom the work is undertaken are liable for the amount of any assessment made under this Act in respect thereof, and the assessment may be levied upon and collected from either of them, or partly from one and partly from the other; but, in the absence of any term in the contract to the contrary, the contractor is, as between himself and the person for whom the work is performed, primarily liable for the amount of the assessment.

Liability of sub-contractor and contractor

90(2)       Where any work within the scope of this Part is performed under sub-contract, both the contractor and the sub-contractor are liable for the amount of the assessments in respect of the work; and any such assessments may be levied upon, and collected from either, or partly from one and partly from the other.

91          [Repealed]

S.M. 1989-90, c. 47, s. 48.

92          [Repealed]

S.M. 1989-90, c. 47, s. 49; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 66.

93          [Repealed]

S.M. 1991-92, c. 36, s. 50; S.M. 2005, c. 17, s. 66.

Accounting system and inspection

94(1)       The board shall establish and maintain an accounting system satisfactory to the Minister of Finance who may, at any time, inspect the accounting records and advise the board on accounting and other financial matters.

Investment of excess funds

94(2)       The board shall cause money in the accident fund in excess of current requirements to be invested in securities authorized under The Trustee Act.

94(3) to (5)[Repealed] S.M. 2005, c. 17, s. 67.

S.M. 1991-92, c. 36, s. 51; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 67.

95          Repealed]

S.M. 1989-90, c. 47, s. 51; S.M. 2005, c. 17, s. 68.

Advance out of Consolidated Fund

96          Where at any time there is not sufficient money in the hands of the board available for payment of the compensation that may become due, the Lieutenant Governor in Council shall direct that it be advanced to the board out of the Consolidated Fund; and in that case the amount advanced shall be repaid by the board to the Minister of Finance out of the accident fund when sufficient funds are available.

Authority for temporary borrowing

97(1)       The board may borrow or raise money for temporary purposes by way of overdraft, line of credit, or loan, or otherwise upon the credit of the board in such amounts, upon such terms, for such periods, and upon such other conditions as the board may determine.

Guarantee

97(2)       The government may, on such terms as may be approved by the Lieutenant Governor in Council, guarantee the payment of the principal and interest on any borrowings of the board under this section.

Minister of Finance's approval

97(3)       Where the board borrows or raises money under this section, otherwise than

(a) by way of overdraft with a bank;

(b) by sale of its short term note; or

(c) by way of a mortgage in connection with a real estate investment made under subsection 94(2) (investment of excess funds);

it shall do so only with the prior approval of the Minister of Finance, who, at the request of the board, may act as its agent in that behalf.

S.M. 1991-92, c. 36, s. 52; S.M. 2005, c. 17, s. 69.

Research and safety programs

97.1(1)     The board may conduct research and safety programs on accident prevention, safety in the workplace, and treatment of workplace injuries, and on scientific, medical or other issues relating to workers compensation, and for that purpose the board may make such expenditures from the accident fund as it considers necessary or expedient.

Allocation of cost

97.1(2)     The board may charge expenditures made under subsection (1) against the class, sub-class, group or sub-group to which a research or educational program relates and levy the expenditure as part of the assessment against that class, sub-class, group or sub-group.

S.M. 1989-90, c. 47, s. 52; S.M. 1992, c. 58, s. 37.

Returns from industry commenced after prescribed date

98(1)       Where an industry coming within this Part is established or commenced after the date prescribed by the board pursuant to section 80, the employer shall forthwith notify the board of the fact and shall forthwith comply with section 80 by furnishing to the board an estimate of the probable amount of his payroll for the remainder of the year.

Offence and administrative penalty

98(2)       An employer who fails to comply with subsection (1) commits an offence and is subject to an administrative penalty under subsection 109.7(1).

S.M. 1989-90, c. 47, s. 53; S.M. 2005, c. 17, s. 70.

Definition of "employer"

99(1)       In this section and in section 100, "employer" includes a person who, in the opinion of the board, may be an employer.

Examination of books of employer

99(2)       The board, and an officer or person authorized by it for that purpose, may examine the books and accounts of an employer, and make such other inquiry as the board considers necessary for the purpose of determining

(a) whether any statement furnished to the board is an accurate statement of the matters that are required to be stated in it;

(b) the amount of the payroll of an employer; or

(c) whether an industry or person is under the operation of this Part;

and for the purpose of such an examination and inquiry, the board and the person so authorized by the board has, in addition to the powers conferred by this Act, the powers, protection and privileges of a commissioner under Part V of The Manitoba Evidence Act.

Notice to employer

99(3)       The board or a person authorized to make an examination or inquiry under this section may give to the employer or an agent of the employer notice in writing requiring the employer or agent to produce to the board or person, at a place and time mentioned in the notice, which shall be not less than 10 days after the giving of the notice, all documents and books in the possession, custody or power, of the employer or agent, in any way relating to or concerning the subject matter of the examination or inquiry; and a person named in and served with any such notice shall produce, at the time and place required, all such documents and books.

S.M. 1989-90, c. 47, s. 54.

Right of entry

100(1)      The board, and any officer or person authorized by it for that purpose may, at all reasonable times, enter into the establishment of an employer, and any premises connected with it, for a purpose set out in subsection 99(2), or for the purpose of inspecting the site of an accident or interviewing witnesses to an accident.

Removal of document or thing

100(2)      A person making entry under subsection (1) may, after providing a receipt to the employer or posting a receipt in a prominent place on the premises of the employer, remove from the premises any document or thing relating to the examination or inquiry, make copies or take photographs of a document or thing removed, and forthwith return it to the place from which it is taken.

Application to court

100(3)      Where an employer or any other person fails to comply with a notice under subsection 99(3) or refuses entry to a person authorized under subsection (1), or where the board has reasonable grounds to believe that an employer will not comply with a notice under subsection 99(3) or permit entry to a person authorized under subsection (1), the board may apply to the Court of Queen's Bench, without notice to the employer or any other person, for an order requiring the employer and any other person to comply with the notice or to permit the entry.

Offence

100(4)      A person who obstructs or hinders the making of an examination and inquiry under section 99 or of an inspection under subsection (1), or who refuses to permit an inspection to be made, commits an offence.

S.M. 1989-90, c. 47, s. 55; S.M. 2005, c. 17, s. 71.

Information obtained not to be divulged

101(1)      No officer of the board, no worker adviser or person appointed or employed under section 108, no member of any committee, panel, medical review panel or commission appointed under this Part, and no agent appointed under section 109.5, and no person authorized to make an inspection or inquiry under this Part, including the Fair Practices Advocate, shall divulge or allow to be divulged, except in the performance of his or her duties or under the authority of the board, any information obtained by him or her or which has come to his or her knowledge in making or in connection with an inspection or inquiry under this Part or in connection with any claim of a worker or dependant under this Part or any Part or any proceeding of the board.

Information for reconsideration, appeal

101(1.1)    Notwithstanding subsection (1) and section 20.1 (medical reports), a worker or dependant of a deceased worker, or the agent of either of them, who is a party to a reconsideration of a decision by the board or an appeal to the appeal commission, may examine and copy all documents in the board's possession respecting the claim of the worker or the dependant.

Employer's access to information

101(1.2)     Notwithstanding subsection (1) and section 20.1 (medical reports), an employer or the agent of the employer who is a party to a reconsideration of a decision by the board or an appeal to the appeal commission may examine and copy such documents in the board's possession as the board considers relevant to an issue in the reconsideration or appeal and the information shall not be used for any purpose other than a reconsideration or appeal under this Act, except with the approval of the board.

Application of subsections 101(1.1) and (1.2)

101(1.3)    Subsections (1.1) and (1.2) apply to documents received by the board after the day on which this section comes into force.

Notice of request for access

101(1.4)    Before granting the employer or the agent of the employer access to the documents under subsection (1.2), the board shall notify the worker or claimant of the documents it considers relevant and permit written objections to be made within a period of time determined by the board and, after considering the objections, the board may refuse access to the documents or may permit access to the documents with or without conditions.

Review of decision by C.A.C.

101(1.5)    A person referred to in subsection (1.1) or (1.2) may apply to the Chief Appeal Commissioner to review a decision of the board under subsection (1.2) and the decision of the Chief Appeal Commissioner thereon is final and conclusive except where a panel, in hearing the main appeal, determines a document to be relevant to an issue in that appeal, in which case the person referred to in subsection (1.2) may examine and copy the document.

Board may charge fee for copy

101(1.6)    The board may fix a fee for providing copies of documents under subsections (1.1) and (1.2).

Copy of documents without charge

101(1.7)    Notwithstanding subsection (1.6), a person referred to in subsection (1.1) is entitled upon request to one copy of the documents under subsection (1.1) without charge, where the claim is denied by the board or there is an appeal to the appeal commission.

Access to files

101(2)      Notwithstanding subsection (1) and section 20.1 (medical reports), where the Lieutenant Governor in Council, pursuant to section 115, appoints persons to a committee to advise the minister, the committee, if it considers it essential for advising the minister on matters relating to The Workers Compensation Act, may receive and examine any file held by the board and every officer of the board and every employee of the board

(a) shall, when requested to do so, make any such file available to the committee; and

(b) may divulge to the committee any information that the officer or employee is prohibited from divulging by subsection (1).

Files to remain on board premises

101(3)      The board, when requested under subsection (2) to make files available to the committee, shall provide suitable office space to the committee at the offices of the board for the examination of the files and the committee may make copies of a document on any such file and may remove such copies from the offices of the board.

Individuals not be named

101(4)      A committee appointed under section 115, in making a report to the minister, may use any information obtained from files made available to it under subsection (2) but, in using the information, the committee shall not divulge the information in such a manner that an individual is directly identifiable.

Secrecy to be maintained

101(5)      Except to such extent as may be necessary in the report to the minister, every member of a committee appointed under section 115 and every person employed by, or otherwise engaged in the work of, the committee shall maintain secrecy in respect of all matters that come to their knowledge as a result of receiving and examining files pursuant to this section.

Powers of committee

101(6)      A committee appointed pursuant to section 115 has such of the powers of commissioners appointed under Part V of The Manitoba Evidence Act as the Lieutenant Governor in Council directs and has the like protection and privileges as commissioners so appointed.

Offence

101(7)      Every person who contravenes subsection (1) or (1.2) commits an offence.

S.M. 1989-90, c. 47, s. 56; S.M. 1991-92, c. 36, s. 53; S.M. 1992, c. 58, s. 37; S.M. 2005, c. 17, s. 72 and 80.

102         [Repealed]

S.M. 1989-90, c. 47, s. 57.

103         [Repealed]

S.M. 1989-90, c. 47, s. 58; S.M. 2005, c. 17, s. 73.

Definition of "security interest"

104(1)      In this section, "security interest" includes a security interest, as defined in The Personal Property Security Act, and a mortgage, debenture, hypothec, lien, pledge, charge, deemed or actual trust, assignment, encumbrance or claim of any kind, however or whenever created or provided for.

Board's charge on employer's property

104(2)      Where an employer owes money to the board under this Act, the board has a fixed and specific lien and charge for the amount owing on the real property and personal property of the employer or in which the employer has rights, or on the proceeds of such property within the province, whether acquired before or after the amount becomes owing to the board.

Priority of board's charge

104(3)      Notwithstanding any other Act, including The Personal Property Security Act, a lien and charge under subsection (2) has priority over the security interest of any person, including the Crown, except

(a) wages owing by the employer to a worker of the employer;

(b) a perfected purchase money security interest that was perfected at the time the debtor obtained possession of the collateral or within 15 days thereafter; and

(c) a lien for taxes to which priority is given by subsection 66(3) of The Tax Administration and Miscellaneous Taxes Act.

Exception for inventory

104(4)      Notwithstanding subsection (3), a purchaser or lessee of inventory from an employer who sells or leases the inventory in the ordinary course of business takes free from the lien and charge of the board under subsection (2).

S.M. 1991-92, c. 36, s. 54; S.M. 2005, c. 40, s. 130; S.M. 2008, c. 42, s. 100.

Registration of statement in L.T.O.

104.1(1)    Notwithstanding subsection 104(3), where an employer who owes money to the board under this Act has an estate or interest in land, the board may register in a Land Titles Office a statement setting out the address for service of the board, the full name of the employer, and the legal description of the specific land to be charged and certifying the amount owed to the board.

Effect of registration

104.1(2)    Notwithstanding subsection 104(3), from the time of the registration of a statement under subsection (1), the amount certified in the statement is a fixed and specific lien and charge on the employer's estate or interest in the land and is enforceable as if it were a certificate of judgment under The Judgments Act.

S.M. 1991-92, c. 36, s. 54.

Allocation of cost of occupational disease

105         Where an occupational disease is contracted gradually, the board may allocate, in such manner as it considers fair and just, the cost of a claim among employers who have employed the worker in the employment to which the board determines the occupational disease is due.

S.M. 1989-90, c. 47, s. 59 to 62; S.M. 1991-92, c. 36, s. 56.

106         [Repealed]

S.M. 1991-92, c. 36, s. 57.

107         [Repealed]

S.M. 1989-90, c. 47, s. 63.

Appointment of worker adviser and staff

108(1)      Worker advisers and other employees necessary to enable the worker advisers to carry out their duties effectively shall be appointed or employed as provided in The Civil Service Act.

Duties of worker advisers

108(2)      The worker advisers may

(a) give or cause to be given assistance to workers and dependants having claims under this Part;

(b) on behalf of workers and dependants having claims under this Part, communicate with or appear before the board, or any boards of review, or any other tribunal established by or under this Act;

(c) advise workers and dependants as to the interpretation and administration of this Act and any regulations made under this Act and of the effect and meaning of decisions made under this Act; and

(d) perform such other duties and functions as the minister may require.

108(3)      [Repealed] S.M. 1991-92, c. 36, s. 58.

Access to information

108(4)      Worker advisers must allow workers and dependants to whom assistance has been given under this Part to have access to their files that are in the possession of the worker adviser.

S.M. 1991-92, c. 36, s. 58; S.M. 2005, c. 17, s. 74 and 80.

Appointment of Fair Practices Advocate

108.1(1)    The Board of Directors must appoint a Fair Practices Advocate and define his or her role and mandate.

Report to the Board of Directors

108.1(2)    The Fair Practices Advocate must report to the Board of Directors.

Fair Practices Advocate may investigate and recommend

108.1(3)    The Fair Practices Advocate may, in accordance with the role and mandate established by the Board of Directors, investigate and make recommendations relating to any matter under this Act, including claims or assessment matters, in which a worker, dependant or employer is or may be aggrieved.

S.M. 2005, c. 17, s. 75.

Enlargement of time limited for applications

109         Where, in the opinion of the board, an injustice would result unless an enlargement of the time prescribed by any section of this Act or by any regulation for the making of any application, the taking of any proceedings, or the doing of any other act, is granted, the board may enlarge the time so prescribed; and the enlargement may be granted either before or after the expiration of the time prescribed in this Act or any regulation.

Offence

109.1(1)    A person who

(a) knowingly makes a false statement to the board affecting the person's entitlement to compensation;

(b) deliberately fails to inform the board of a material change in circumstances affecting the person's entitlement to compensation, within 10 days of the commencement of the change;

(c) knowingly makes a false statement to the board concerning an employer's report of payroll, or affecting the assessment of an employer;

(d) knowingly makes a false statement to the board affecting a worker's entitlement to compensation; or

(e) deliberately fails to inform the board about a matter affecting a worker's entitlement to compensation;

commits an offence.

109.1(2) to (5)  [Repealed] S.M. 2005, c. 17, s. 76.

S.M. 1989-90, c. 47, s. 64; S.M. 2005, c. 17, s. 76.

Recovery of overpayments

109.2       Where a person receives an overpayment of compensation, being an amount that the board determines is in excess of that to which the person is entitled, the board may recover the overpayment from the person, or from the executors or administrators of the person, as a debt due to the board.

S.M. 1989-90, c. 47, s. 64.

Right of set off

109.3       Notwithstanding section 23 and without limiting the board's remedies for recovery, any money due the board under this Act may be set off against compensation that is or may become payable to the person who is indebted to the board.

S.M. 1989-90, c. 47, s. 64.

Commutation of past pensions

109.4       Where periodic payments being paid to a worker for a permanent disability in respect of an accident happening before the day this section comes into force are less than an amount that the board may prescribe by regulation, the board may pay to the worker, instead of periodic payments, a lump sum that the board considers to be equivalent to the periodic payment in settlement of the worker's claim, and the settlement is final in respect of the condition of the worker attributable to the accident as the condition is known at the time the payment is made.

S.M. 1991-92, c. 36, s. 59.

Board may delegate to agent

109.5(1)    The board may delegate its powers under this Act to an agent or local representative for the purpose of

(a) receiving applications for compensation, reports of accidents, physicians' reports and such other proofs of claim as the board requires;

(b) determining entitlement to wage loss benefits;

(c) calculating the loss of earning capacity of a worker;

(d) calculating the wage loss benefits payable to a worker;

(e) paying compensation to workers or their dependants on behalf of the board; or

(f) such other matters as the board may determine.

Nature of delegation

109.5(2)    The delegation of authority under subsection (1) may be general with respect to a particular class of workers or may be limited according to the type of accident, the employer, or the nature of the injury.

Agent's access to information

109.5(3)    The board may authorize the manner and extent of access to information in the possession of the board by an agent or local representative appointed under subsection (1).

Request for reconsideration by board

109.5(4)    A person who has a direct interest in a decision made under subsection (1) may request that the board reconsider the decision under subsection 60.1(2).

Expenses paid from accident fund

109.5(5)    The board may make expenditures from the accident fund for the purpose of this section, including the payment of fees and disbursements to agents or local representatives.

S.M. 1991-92, c. 36, s. 59; S.M. 2005, c. 17, s. 80.

Fines for offences

109.6(1)    Except as provided in subsection (2), a person who commits an offence under this Act or the regulations is liable, on summary conviction,

(a) if the person is a worker, to a fine of not more than $1,500.; and

(b) if the person is not a worker, to a fine of not more than $7,500.

Offence under subsection 109.1(1)

109.6(2)    A person who commits an offence under subsection 109.1(1) is liable, on summary conviction,

(a) if the person is a worker, to a fine of not more than $1,500. or imprisonment for a term of not more than three months, or both; and

(b) if the person is not a worker, to a fine of not more than $7,500. or imprisonment for a term of not more than three months, or both.

Offence by corporation

109.6(3)    When a corporation commits an offence under this Act or the regulations, any officer, director or agent of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of an offence and is liable, on summary conviction, to the penalty provided for the offence, whether or not the corporation has been prosecuted or convicted.

Continuing offence

109.6(4)    Where a contravention of this Act or a regulation continues for more than one day, the person is guilty of a separate offence for each day the contravention continues.

Restitution

109.6(5)    A justice who finds a person guilty of an offence under this Act or the regulations may, in addition to any penalty imposed under this section, order the person to repay to the board any money obtained by that person as a result of the commission of the offence.

Order filed in court

109.6(6)    If money is ordered to be paid under subsection (5), the board may file a certified copy of the order in the Court of Queen's Bench. The order is deemed to be a judgment of the court in favour of the board, and may be enforced as such.

Limitation on prosecution

109.6(7)    A prosecution under this Act may not be commenced later than

(a) for an offence committed under subsection 109.1(1), four years after the day the alleged offence was committed; and

(b) for all other offences, two years after the day the alleged offence was committed.

Rights not affected by prosecution

109.6(8)    Nothing in this section limits the board's right to take proceedings to obtain a civil remedy, including proceedings under section 109.2 (recovery of overpayments).

Certificate as proof

109.6(9)    In any prosecution or proceeding under this Act in which proof is required respecting

(a) the filing with the board of a statement, record or report required under this Act; or

(b) service of a notice, order or document by the board on an employer, worker or other person;

a certificate signed by an authorized person on the board's behalf is admissible in evidence as proof of the facts stated, unless the contrary is proven. Proof of the person's authority or signature is not required.

S.M. 2005, c. 17, s. 77.

Administrative penalty

109.7(1)    A person who is subject to an administrative penalty under

(a) subsection 4(1.1) (payment on day of accident);

(b) subsection 4(1.2) (no deduction for payment on day of accident);

(c) section 11 (principal's duty to see that contractor files statements);

(d) section 15 (no deduction from wages by employer, no contribution from worker);

(e) section 18 (employer to report accident);

(f) section 18.1 (employer to report worker's return to work);

(g) subsection 19(4) (worker to report return to work);

(h) section 19.1 (claims suppression);

(i) section 49.3 (obligation to re-employ);

(j) subsection 68(3) (contravening a regulation);

(k) section 80 (payroll estimate, record of wages, nature of work statement);

(l) section 98 (returns from industry commenced after prescribed date);

shall, where the board determines, pay to the board a penalty in an amount prescribed by regulation.

No offence to be charged if penalty paid

109.7(2)    Notwithstanding any other provision of this Act, a person who pays a penalty under this section may not be charged with an offence respecting that contravention, unless the contravention continues after the penalty is paid.

Relief from penalty

109.7(3)    The board may, if it is satisfied that a person has a reasonable explanation for the contravention, relieve the person in whole or in part from the payment of a penalty under this section.

Enforcement of penalty

109.7(4)    The payment of a penalty to the board under this Act may be enforced in the same manner as the payment of an assessment or other debt due to the board.

S.M. 2005, c. 17, s. 77; S.M. 2014, c. 32, s. 28.

Service or filing of documents with the board

109.8       The board may establish policies and procedures for the form and manner of the service or filing of documents with the board, including by telephone, mail, delivery, facsimile or electronic transmission.

S.M. 2005, c. 17, s. 77.

PART II

GENERAL

Application of sections 111 to 113

110         Sections 111 to 113 apply only to the industries, employers or workers excluded from the application of Part I by regulation under section 2.1.

S.M. 2005, c. 17, s. 78.

Liability of employer

111(1)      Where personal injury is caused to a worker by reason of any defect in the condition or arrangement of the ways, works, machinery, plants, buildings, or premises, connected with, intended for, or used in the business of, his employer or by reason of the negligence of his employer or of any person in the service of his employer acting within the scope of his employment, the worker or, if the injury results in death, the legal personal representatives of the worker, and any person entitled in case of death, have an action against the employer; and if the action is brought by the worker he is entitled to recover from the employer the damages sustained by the worker by or in consequence of the injury; and, if the action is brought by the legal personal representatives of the worker or by or on behalf of persons entitled to damages under The Fatal Accidents Act, they are entitled to recover such damages as they are entitled to under The Fatal Accidents Act and The Trustee Act.

Liability of person supplying defective ways, work

111(2)      Where the execution of any work is being carried into effect under any contract, and the person for whom the work is done owns or supplies any ways, works, machinery, plant, buildings, or premises, and by reason of any defect in the condition or arrangement of them personal injury is caused to a worker employed by the contractor or by any sub-contractor, and the defect arose from the negligence of the person for whom the work or any part of it is done or of some person in his service and acting within the scope of his employment, the person for whom the work or that part of the work is done is liable to the action as if the worker had been employed by him, and for that purpose shall be deemed to be the employer of the worker within the meaning of this Part; but any such contractor or sub-contractor is also liable to the action as if this subsection had not been enacted, but not so that double damages are recoverable for the same injury.

Saving

111(3)      Nothing in subsection (2) affects any right or liability of the person for whom the work is done and the contractor or sub-contractor as between themselves.

Continuing in employment with knowledge of defect

111(4)      A worker shall not, by reason only of his continuing in the employment of the employer with knowledge of the defect or negligence that caused his injury, be deemed to have voluntarily incurred the risk of the injury.

Common law rules superseded

112         A worker shall be deemed not to have undertaken the risks due to the negligence of his fellow worker, and contributory negligence on the part of the worker is not a bar to recovery by him, or by any person entitled, to damages under The Fatal Accidents Act or The Trustee Act in an action for the recovery of damages for an injury sustained by or causing the death of the worker while in the service of his employer for which the employer would otherwise have been liable.

Contributory negligence

113         Contributory negligence on the part of the worker shall nevertheless be taken into account in assessing the damages in any such action.

114         [Repealed]

S.M. 1989-90, c. 47, s. 65.

Review of this Act

115(1)      At least once every 10 years, a comprehensive review must be undertaken of this Act by a review committee appointed by the Lieutenant Governor in Council.

Review committee

115(2)      The review committee must be composed of one or more persons representative of

(a) the public interest;

(b) workers; and

(c) employers.

Report to minister

115(3)      The review committee must report its findings and recommendations to the minister.

S.M. 1989-90, c. 47, s. 66; S.M. 2005, c. 17, s. 79.

Conflict with The Freedom of Information and Protection of Privacy Act

116         If a provision of this Act is inconsistent or in conflict with a provision of The Freedom of Information and Protection of Privacy Act, the provision of this Act prevails.

S.M. 1997, c. 50, s. 97; S.M. 1999, c. 18, s. 14.

SCHEDULE

[Repealed]

S.M. 1991-92, c. 36, s. 60; S.M. 2005, c. 17, s. 81.

 

 


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