| Copyright (c) Queen's Printer, Victoria, British Columbia, Canada |
IMPORTANT INFORMATION |
1 In this Act:
"accident" includes a wilful and intentional act, not being the act of the worker, and also includes a fortuitous event occasioned by a physical or natural cause;
"accident fund" means the fund provided for the payment of compensation, outlays and expenses referred to in section 36;
"appeal tribunal" means the Workers' Compensation Appeal Tribunal established under Part 4;
"average net earnings" means, with respect to a worker, the average net earnings of the worker as determined by the Board under sections 33.8 and 33.9;
"Board" means the Workers' Compensation Board;
"board of directors" means the board of directors appointed under section 81;
"chief review officer" means an officer of the Board who is appointed under section 96.2;
"compensation" includes health care;
"construction" includes reconstruction, repair, alteration and demolition;
"consumer price index" means the Consumer Price Index for Canada published by Statistics Canada under the Statistics Act (Canada);
"dependant" means a member of the family of a worker who was wholly or partly dependent on the worker's earnings at the time of the worker's death, or who but for the incapacity due to the accident would have been so dependent, and, except in section 17 (3) (a) to (h), (9) and (13), includes a spouse, parent or child who satisfies the Board that he or she had a reasonable expectation of pecuniary benefit from the continuation of the life of the deceased worker;
"employer" includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry;
"employment", when used in Part 1, means and refers to all or part of an establishment, undertaking, trade or business within the scope of that Part, and in the case of an industry not as a whole within the scope of Part 1 includes a department or part of that industry that would if carried on separately be within the scope of Part 1;
"health care", when used in Part 1, includes the things which the Board under this Act is empowered to provide for injured workers;
"industry" includes establishment, undertaking, work, trade and business;
"initial payment period" means the period starting on the date of a worker's injury and ending on the last day of the 10th week for which compensation is payable under this Act to the worker for a temporary disability resulting from that injury;
"invalid" means physically or mentally incapable of earning;
"invalid child" includes a child who, though not an invalid at the date of death of the worker, becomes an invalid before otherwise ceasing to be entitled to compensation;
"manufacturing" includes making, preparing, altering, repairing, renovating, servicing, dyeing, cleaning, ornamenting, printing, finishing, packing, packaging, assembling the parts of and adapting for use or sale any raw material, goods, article or commodity;
"member of family" means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half brother and half sister and a person who stood in loco parentis to the worker or to whom the worker stood in loco parentis, whether related to the worker by consanguinity or not;
"metalliferous mining industry" includes the operations of milling and concentrating, but does not include any other operation for the reduction of minerals;
"occupational disease" means
(a) a disease mentioned in Schedule B,
(b) a disease the Board may designate or recognize by regulation of general application,
(c) a disease the Board may designate or recognize by order dealing with a specific case, and
(d) a disease prescribed for the purpose of section 6.1 (2) but only in respect of a worker to whom the presumption in that section applies, unless the disease is otherwise described by this definition,
and "disease" includes disablement resulting from exposure to contamination;
"person" includes, for the purpose of section 10, his or her personal representative;
"physician" means a person registered under the Medical Practitioners Act;
"president" means the president of the Board appointed under section 84.1;
"qualified practitioner" means a person registered under the Chiropractors Act, the Dentists Act, or the Podiatrists Act or a person registered as a naturopathic physician under the Health Professions Act;
"reconsider" means to make a new decision in a matter previously decided where the new decision confirms, varies or cancels the previous decision or order;
"regulation", when used in Part 1 in relation to regulations of the Board, means rules and regulations made by the Board under that Part;
"retirement benefit" means the lump sum payable under section 23.3;
"review officer" means an officer of the Board who is appointed under section 96.2;
"specialist" means a physician residing and practising in the Province and listed by the Royal College of Physicians and Surgeons of Canada as having specialist qualifications;
"worker" includes
(a) a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise;
(b) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry within the scope of Part 1 for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment;
(c) a member of a fire brigade or an ambulance driver or attendant working with or without remuneration, when serving
(i) a municipality, a regional district, an urban area, an improvement district, a board of school trustees, a francophone education authority as defined in the School Act, a library board or a parks board, or
(ii) a board or commission having the management or conduct of work or services on behalf of any of the bodies in subparagraph (i);
(d) in respect of the industry of mining, a person while the person is actually engaged in taking or attending a course of training or instruction in mine rescue work under the direction or with the written approval of an employer in whose employment the person is employed as a worker in that industry, or while, with the knowledge and consent of an employer in that industry, either express or implied, he or she is actually engaged in rescuing or protecting or attempting to rescue or protect life or property in the case of an explosion or accident which endangers either life or property in a mine, and this irrespective of whether during the time of his or her being so engaged the person is entitled to receive wages from the employer, or from any employer, or is performing the work or service as a volunteer;
(e) further, in respect of the industry of mining, a person while he or she is engaged as a member of the inspection committee, appointed or elected by the workers in the mine, to inspect the mine on behalf of the workers;
(f) an independent operator admitted by the Board under section 2 (2); and
(g) a person deemed by the Board to be a worker under section 3 (6).
Part 1 — Compensation to Workers and Dependants
Division 1 — Scope of this Part
2 (1) This Part applies to all employers, as employers, and all workers in British Columbia except employers or workers exempted by order of the Board.
(2) The Board may direct that this Part applies on the terms specified in the Board's direction
(a) to an independent operator who is neither an employer nor a worker as though the independent operator was a worker, or
(b) to an employer as though the employer was a worker.
(3) The application of this Part under subsection (2) to an employer does not exempt the employer, as an employer, from the application of this Part.
3 (1) to (3) [Repealed 1993-34-2.]
(4) Admissions under this section may be made at the time, in the manner, subject to the terms and conditions and for the period the Board considers adequate and proper.
(5) Where a person or group of persons carries on an undertaking that the Board thinks is in the public interest, the Board may, on the terms and conditions it directs,
(a) deem the person or group of persons, whether or not any of them receive payment for their services, to be workers for the purposes of this Act;
(b) on approval of the Lieutenant Governor in Council, deem the person or group of persons to be workers of the Crown in right of the Province; and
(c) where a person who is deemed to be a worker is not regularly employed, and having regard to all the circumstances, including his or her income, fix his or her average earnings at not less than $112.67 per week or more than the maximum wage rate provided under section 33.
(6) Where the Minister of Education, Skills and Training and the Minister of Labour approve a vocational or training program, and a school or other location as a place of that vocational or training program, the Board may, at the request of either minister, deem any person or class of persons enrolled in the program to be workers of the Crown in right of the Province and compensation under this Act is then payable out of the accident fund for injuries arising out of and in the course of training for those workers, but where the injury results in a period of temporary disability with no loss of earnings,
(a) a health care benefit only is payable except as provided in paragraph (b); and
(b) where training allowances paid by Canada or the Province are suspended, the Board may, for the period it considers advisable, pay compensation in the amount of the training allowance.
(7) Where a person or group of persons is engaged in a work study program or other program of self improvement involving work, whether or not the person or group receives payment for the work, the Board may
(a) on the application of an employer or a program organizer, and on the terms and conditions the Board directs, by order, admit the person or group as being within the scope of this Part, and, on admission, the person or group is deemed to be a worker or workers to whom this Part applies, and the Board may levy assessments on the employer or program organizer by the formula the Board determines; or
(b) with the approval of the Lieutenant Governor in Council, deem a person or group engaged in the program to be workers of the Crown in right of the Province, on the terms and conditions the Board determines.
4 (1) The Lieutenant Governor in Council may make regulations to
(a) define the terms used in this section, and, for this purpose, the term "fish" may be defined to include any species of animal living in water, and the term "commercial fisher" may be defined to include the master and crew of a fishing vessel, the master and crew of a fish packing vessel and any other person who contributes in any manner to the catching or landing of fish for sale or commercial use;
(b) provide that any provision of Part 1 relating to workers applies or may be applied to any commercial fishers working in or out of British Columbia ports, or on or about the waters of British Columbia, or resident in the Province, notwithstanding that they may not otherwise be workers under this Act;
(c) provide that any provision of Part 1 relating to employers applies or may be applied to any commercial buyers or other commercial recipients of fish, or to any person engaged in the Province in transmitting payments to commercial fishers, notwithstanding that they may not otherwise be employers under this Act, and, to the extent the regulations provide, each buyer, recipient or payor is deemed to be the employer of all commercial fishers who contributed in any manner to the catching or landing of the fish bought, obtained or paid for by or through that person;
(d) provide that methods of calculating and levying assessments additional to or different from the methods otherwise provided under Part 1 may be used for levying assessments for the purposes of this Part on commercial buyers and other commercial recipients of fish, and on a person engaged in the Province in transmitting payments to commercial fishers for fish whether landed in the Province or elsewhere;
(e) create obligations, different from the terms of this Act, on commercial buyers and commercial recipients of fish, and masters of fishing vessels, to report to the Board injuries and occupational diseases sustained by commercial fishers, and to provide transportation for initial medical treatment;
(f) exclude a portion of the fishing industry or a category of workers or employers in that industry to whom a provision of this Part would otherwise apply from the application of that provision, and to substitute provisions contained in regulations made under this section; and
(g) delegate to the Board to the extent the regulations provide any power conferred by this section.
(2) Where it appears to the Board that a provision of this Act or of a regulation made under another section of this Act is inappropriate or unworkable in relation to commercial fishers, the fishing industry or commercial buyers, or other commercial recipients of the fish, the Board may, by regulation, make the rules and give the decisions it considers fair and appropriate having regard to the intent that all commercial fishers must as far as possible receive the benefit of and be subject to Part 1.
(3) Where the death of a commercial fisher resident in British Columbia arises out of and in the course of his or her occupation in the Province or waters off the Province after January 1, 1975, and the death is not otherwise compensable under this Part, the Board may treat the death in the same manner as if the commercial fisher were a worker employed by the Crown in right of the Province.
5 (1) Where, in an industry within the scope of this Part, personal injury or death arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part must be paid by the Board out of the accident fund.
(2) Where an injury disables a worker from earning full wages at the work at which the worker was employed, compensation is payable under this Part from the first working day following the day of the injury; but a health care benefit only is payable under this Part in respect of the day of the injury.
(3) Where the injury is attributable solely to the serious and wilful misconduct of the worker, compensation is not payable unless the injury results in death or serious or permanent disablement.
(4) In cases where the injury is caused by accident, where the accident arose out of the employment, unless the contrary is shown, it must be presumed that it occurred in the course of the employment; and where the accident occurred in the course of the employment, unless the contrary is shown, it must be presumed that it arose out of the employment.
(5) Where the personal injury or disease is superimposed on an already existing disability, compensation must be allowed only for the proportion of the disability following the personal injury or disease that may reasonably be attributed to the personal injury or disease. The measure of the disability attributable to the personal injury or disease must, unless it is otherwise shown, be the amount of the difference between the worker's disability before and disability after the occurrence of the personal injury or disease.
5.1 (1) Subject to subsection (2), a worker is entitled to compensation for mental stress that does not result from an injury for which the worker is otherwise entitled to compensation, only if the mental stress
(a) is an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of the worker's employment,
(b) is diagnosed by a physician or a psychologist as a mental or physical condition that is described in the most recent American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders at the time of the diagnosis, and
(c) is not caused by a decision of the worker's employer relating to the worker's employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment.
(2) The Board may require that a physician or psychologist appointed by the Board review a diagnosis made for the purposes of subsection (1) (b) and may consider that review in determining whether a worker is entitled to compensation for mental stress.
(3) Section 56 (1) applies to a physician or psychologist who makes a diagnosis referred to in this section.
(4) In this section, "psychologist" means a person who is registered as a member of the College of Psychologists of British Columbia established under section 15 (1) of the Health Professions Act or a person who is entitled to practise as a psychologist under the laws of another province.
6 (1) Where
(a) a worker suffers from an occupational disease and is thereby disabled from earning full wages at the work at which the worker was employed or the death of a worker is caused by an occupational disease; and
(b) the disease is due to the nature of any employment in which the worker was employed, whether under one or more employments,
compensation is payable under this Part as if the disease were a personal injury arising out of and in the course of that employment. A health care benefit may be paid although the worker is not disabled from earning full wages at the work at which he or she was employed.
(2) The date of disablement must be treated as the occurrence of the injury.
(3) If the worker at or immediately before the date of the disablement was employed in a process or industry mentioned in the second column of Schedule B, and the disease contracted is the disease in the first column of the schedule set opposite to the description of the process, the disease is deemed to have been due to the nature of that employment unless the contrary is proved.
(4) [Repealed 2002-56-3.]
(4.1) The Board may, by regulation,
(a) add to or delete from Schedule B a disease that, in the opinion of the Board, is an occupational disease,
(b) add to or delete from Schedule B a process or an industry, and
(c) set terms, conditions and limitations for the purposes of paragraphs (a) and (b).
(4.2) Despite subsection (4.1), the Board may designate or recognize a disease as being a disease that is peculiar to or characteristic of a particular process, trade or occupation on the terms and conditions and with the limitations set by the Board.
(5) [Repealed 1998-50-2.]
(6) [Repealed 1994-24-2.]
(7) "Silicosis"means a fibrotic condition of the lungs caused by the inhalation of silica dust.
(8) A worker in the metalliferous mining industry or coal mining industry who becomes disabled from uncomplicated silicosis or from silicosis complicated with tuberculosis is entitled to compensation for total or partial disability as provided by this Part, and where death results from the disability, the dependants of the worker are entitled to compensation as provided by this Part; but neither a worker nor a dependant is entitled to compensation for the disability or death unless the worker
(a) has been a resident of the Province for a period of at least 3 years last preceding the disablement, or unless at least 2/3 of the worker's exposure to dust containing silica was in the Province;
(b) was free from silicosis and tuberculosis before being first exposed to dust containing silica in the metalliferous mining or coal mining industry in this Province; and
(c) has been a worker exposed to dust containing silica in the metalliferous mining or coal mining industry in the Province for a period or periods aggregating 3 years preceding his or her disablement, or for a lesser period if the worker was not exposed to dust containing silica anywhere except in this Province.
(9) If the worker has been exposed to the inhalation of dust containing silica in 2 or more classes or subclasses of industry in the Province, the Board may apportion the cost of compensation among the funds provided by those classes or subclasses on the basis of the duration and severity of the exposure in each.
(10) When a worker has sustained pulmonary injury by a disabling form of pneumoconiosis as a result of exposure to dust conditions that are deemed by the Board to have contributed to the development of the disease in employment in the Province in an industry in which that disease is an occupational disease under this Part, the worker or the worker's dependants is or are entitled to compensation only if the worker was free from pneumoconiosis and tuberculosis before being first exposed to those dust conditions in the Province, and if the worker's residence and exposure to the dust conditions have been of the duration required to entitle a worker to compensation for silicosis under subsection (8), and the cost of compensation may be apportioned in the manner provided by subsection (9).
(11) Where a deceased worker was, at the date of his or her death, under the age of 70 years and suffering from an occupational disease of a type that impairs the capacity of function of the lungs, and where the death was caused by some ailment or impairment of the lungs or heart of non-traumatic origin, it must be conclusively presumed that the death resulted from the occupational disease.
6.1 (1) In this section, "firefighter" means a member of a fire brigade who is
(a) described by paragraph (c) of the definition of "worker", and
(b) assigned primarily to fire suppression duties, whether or not those duties include the performance of ambulance or rescue services.
(2) If a worker who is or has been a firefighter contracts a prescribed disease, the disease must be presumed to be due to the nature of the worker’s employment as a firefighter, unless the contrary is proved.
(3) The presumption in subsection (2) applies only to a worker who
(a) has worked as a firefighter for the minimum cumulative period prescribed for the disease, which minimum cumulative period may be defined differently, and be different, for different categories of firefighters,
(b) throughout that period, has been regularly exposed to the hazards of a fire scene, other than a forest fire scene, and
(c) is first disabled from the disease on or after April 11, 2005 or a later date prescribed for the disease.
(4) The Lieutenant Governor in Council may make regulations for the purposes of subsections (2) and (3) (a) and (c).
(5) If made on or before January 1, 2006, a regulation under subsection (4) may be made retroactive to a date on or after April 11, 2005 and a regulation made retroactive under this section is deemed to have come into force on the date specified in the regulation and has the retroactive effect necessary to give it force and effect on and after that date.
7 (1) Where a worker suffers loss of hearing of non-traumatic origin, but arising out of and in the course of employment under this Part, that is a greater loss than the minimum set out in Schedule D, the worker is entitled to compensation under this Part.
(2) Where the loss of hearing amounts to total deafness measured in the manner set out in Schedule D, but with no loss of earnings resulting from the loss of hearing, compensation must be calculated as for a disability equivalent to 15% of total disability under this Part.
(3) Where the loss of hearing does not amount to total deafness, and there is no loss of earnings resulting from the loss of hearing, compensation must be calculated as for a lesser percentage of total disability, and, unless otherwise ordered by the Board, must be based on the percentages set out in Schedule D.
(3.1) The Board may make regulations to amend Schedule D in respect of
(a) the ranges of hearing loss,
(b) the percentages of disability, and
(c) the methods or frequencies to be used to measure hearing loss.
(4) If a loss or reduction of earnings results from the loss of hearing, the worker is entitled to compensation for a total or partial disability as established under this Part.
(4.1) Compensation paid for a worker's loss of hearing under subsection (4) must not be less than the amount determined under subsection (2) or (3).
(5) Compensation under this section is not payable in respect of a period prior to September 1, 1975; but future compensation under this section is payable in respect of loss of hearing sustained by exposure to causes of hearing loss in the Province either before or after that date, unless the exposure to causes of hearing loss terminated prior to that date.
(6) An application for compensation under this section must be accompanied or supported by a specialist's report and audiogram or by other evidence of loss of hearing that the Board prescribes.
(7) Where a worker suffers loss of hearing caused by exposure to causes of hearing loss in 2 or more classes or subclasses of industry in the Province, the Board may apportion the cost of compensation among the funds provided by those classes or subclasses on the basis of the duration or severity of the exposure in each.
8 (1) Where the injury of a worker occurs while the worker is working elsewhere than in the Province which would entitle the worker or the worker's dependants to compensation under this Part if it occurred in the Province, the Board must pay compensation under this Part if
(a) a place of business of the employer is situate in the Province;
(b) the residence and usual place of employment of the worker are in the Province;
(c) the employment is such that the worker is required to work both in and out of the Province; and
(d) the employment of the worker out of the Province has immediately followed the worker's employment by the same employer within the Province and has lasted less than 6 months,
but not otherwise.
(2) [Repealed 1994-24-4.]
8.1 (1) The Board may enter into an agreement or make an arrangement with Canada, a province or the appropriate authority of Canada or a province to provide for
(a) compensation, rehabilitation and health care to workers in accordance with the standards established under this Act or corresponding legislation in other jurisdictions,
(b) administrative co-operation and assistance between jurisdictions in all matters under this Act and corresponding legislation in other jurisdictions, or
(c) avoidance of duplication of assessments on workers' earnings.
(2) An agreement or arrangement under subsection (1) may
(a) waive or modify a residence or exposure requirement for eligibility for compensation, rehabilitation or health care, or
(b) provide for payment to the appropriate authority of Canada or a province for compensation, rehabilitation costs, or health care costs paid by it.
9 (1) Where by the law of the country or place in which the injury or occupational disease occurs the worker or the worker's dependants are entitled to compensation in respect of it, they must elect whether they will claim compensation under the law of that country or place or under this Part, and to give notice of the election. If the election is not made and notice given, it must be presumed that they have elected not to claim compensation under this Part; but if there is in existence an agreement entered into, or arrangement made, under section 8.1, any right of election is subject to the terms of that agreement or arrangement.
(2) Notice of the election must be given to the Board within 3 months after the occurrence of the injury or disablement from occupational disease, or, if it results in death, within 3 months after the death, or within any longer period that either before or after the expiration of the 3 months the Board allows.
10 (1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker, dependant or member of the family of the worker is or may be entitled against the employer of the worker, or against any employer within the scope of this Part, or against any worker, in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies. This provision applies only when the action or conduct of the employer, the employer's servant or agent, or the worker, which caused the breach of duty arose out of and in the course of employment within the scope of this Part.
(2) Where the cause of the injury, disablement or death of a worker is such that an action lies against some person, other than an employer or worker within the scope of this Part, the worker or dependant may claim compensation or may bring an action. If the worker or dependant elects to claim compensation, he or she must do so within 3 months of the occurrence of the injury or any longer period that the Board allows.
(3) Where the Board is satisfied that due to the worker's physical or mental disability a worker is unable to exercise his or her right of election, and undue hardship will result, it may pay the compensation provided by this Part until the worker is able to make an election. If the worker then elects not to claim compensation, no further compensation may be paid, but the compensation so paid is a first charge against any sum recovered.
(4) An application filed by a parent, guardian or the Official Guardian for compensation for the infant child of a deceased worker is a valid election on behalf of that child.
(5) If after trial, or after settlement out of court with the written approval of the Board, less is recovered and collected than the amount of the compensation to which the worker or dependant would be entitled under this Part, the worker or dependant is entitled to compensation under this Part to the extent of the amount of the difference.
(6) If the worker or dependant applies to the Board claiming compensation under this Part, neither the making of the application nor the payment of compensation under it restricts or impairs any right of action against the party liable, but as to every such claim the Board is subrogated to the rights of the worker or dependant and may maintain an action in the name of the worker or dependant or in the name of the Board; and if more is recovered and collected than the amount of the compensation to which the worker or dependant would be entitled under this Part, the amount of the excess, less costs and administration charges, must be paid to the worker or dependant. The Board has exclusive jurisdiction to determine whether to maintain an action or compromise the right of action, and its decision is final and conclusive.
(7) If, in an action brought by a worker or dependant of a worker or by the Board, it is found that the injury, disablement or death, as the case may be, was due partly to a breach of duty of care of one or more employers or workers under this Part, no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker; but the portion of the loss or damage caused by that negligence must be determined although the employer or worker is not a party to the action.
(8) The provisions of this Part are in lieu of any right of action that the employer of the injured or deceased worker is or may, in respect of the personal injury or death of the worker, be entitled to maintain against another employer within the scope of this Part, or an independent operator to whom this Part applies by direction under section 2 (2) (a); but where the Board considers that
(a) a substantial amount of compensation has been awarded as a result of the injury or death of the worker; and
(b) the injury or death was caused or substantially contributed to by a serious breach of duty of care of an employer or an independent operator to whom this Part applies by direction under section 2 (2) (a) in another class or subclass,
the Board may order that the compensation be charged, in whole or in part, to the other class or subclass; but the provisions of this subsection do not affect any right which an employer may have against another employer, or an independent operator to whom this Part applies by direction under section 2 (2) (a), arising out of their indemnity agreement or contract.
(9) For the purpose of this section, "worker" includes an employer admitted under section 2 (2).
(10) In an action brought under this section, an award for damages is to include
(a) health care provided under this Part; and
(b) wages and salary paid by an employer during the period of disability for which regard has been had by the Board, or would have been had if the worker had elected to claim compensation, in fixing the amount of a periodical payment of compensation.
(11) Costs may, notwithstanding that a salaried employee of the Board acts as its solicitor or counsel, be awarded to and collected by the Board in an action taken by the Board under this section.
12 A worker under the age of 19 years is sui juris for the purpose of this Part, and no other person has a cause of action or right to compensation for the personal injury or disablement except as expressly provided in this Part.
13 (1) A worker may not agree with his or her employer to waive or to forego any benefit to which the worker or the worker's dependants are or may become entitled under this Part, and every agreement to that end is void.
(2) [Repealed 1998-50-3.]
14 (1) It is not lawful for an employer, either directly or indirectly, to deduct from the wages of the employer's worker any part of a sum which the employer is or may become liable to pay into the accident fund or otherwise under this Part, or to require or to permit the worker to contribute in any manner toward indemnifying the employer against a liability which the employer has incurred or may incur under this Part.
(2) Every person who contravenes subsection (1) commits an offence against this Part and is liable to repay to the worker any sum which has been so deducted from his or her wages or which he or she has been required or permitted to pay in contravention of subsection (1).
15 A sum payable as compensation or by way of commutation of a periodic payment in respect of it is not capable of being assigned, charged or attached, nor must it pass by operation of law except to a personal representative, and a claim must not be set off against it, except for money advanced by way of financial or other social welfare assistance owing to the Province or to a municipality, or for money owing to the accident fund.
16 (1) To aid in getting injured workers back to work or to assist in lessening or removing a resulting handicap, the Board may take the measures and make the expenditures from the accident fund that it considers necessary or expedient, regardless of the date on which the worker first became entitled to compensation.
(2) Where compensation is payable under this Part as the result of the death of a worker, the Board may make provisions and expenditures for the training or retraining of a surviving dependent spouse, regardless of the date of death.
(3) The Board may, where it considers it advisable, provide counselling and placement services to dependants.
Division 3 — Scale of Compensation
17 (1) In this section
"child" means
(a) a child under the age of 19 years, including a child of the deceased worker yet unborn;
(b) an invalid child of any age; and
(c) a child under the age of 25 years who is regularly attending an academic, technical or vocational place of education,
and "children" has a similar meaning;
"federal benefits" means the benefits paid for a dependant under the Canada Pension Plan as a result of a worker's death, other than the death benefit payable to the estate of a worker under section 57 of that Act.
(2) Where compensation is payable as the result of the death of a worker or as the result of injury resulting in the death,
(a) in addition to any other compensation payable under this section, an amount in respect of funeral and related expenses, as determined in accordance with the policies of the board of directors, must be paid out of the accident fund,
(b) the employer of the worker must bear the cost of transporting the body to the nearest business premises where funeral services are provided, and
(c) if burial does not take place there, the costs of any additional transportation, up to a maximum determined in accordance with the policies of the board of directors, may be paid out of the accident fund.
(2.1) No action for an amount larger than that established by subsection (2) lies in respect of the funeral, burial or cremation of the worker or cemetery charges in connection with it.
(3) Where compensation is payable as the result of the death of a worker or of injury resulting in such death, compensation must be paid to the dependants of the deceased worker as follows:
(a) where the dependants are a widow or widower and 2 or more children, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for those dependants, would equal the total of
(i) the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability, subject to the minimum set out in paragraph (g); and
(ii) $296.22 per month for each child beyond 2 in number;
(b) where the dependants are a widow or widower and one child, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for those dependants, would equal 85% of the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability, subject to the minimum set out in paragraph (g);
(c) where the dependant is a widow or widower who, at the date of death of the worker, is 50 years of age or over, or is an invalid spouse, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for that dependant, would equal 60% of the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability, but the monthly payments must not be less than $957.21;
(d) where the dependant, at the date of death of the worker, is a widow or widower who is not an invalid and is under the age of 50 years, and there are no dependent children, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for that dependant, would equal the product of
(i) the percentage determined by subtracting 1% from 60% for each year that the age of that dependant, at the date of death of the worker, is under the age of 50 years, and
(ii) the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability,
but the percentage determined under subparagraph (i) must not be less than 30% and the monthly payments must not be less than $957.21;
(e) [Repealed 2003-65-17.]
(f) where there is no surviving spouse or common law spouse eligible for monthly payments under this section, and
(i) the dependant is a child, a monthly payment of a sum that, when combined with 50% of the federal benefits to or for that child, would equal 40% of the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability;
(ii) the dependants are 2 children, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for those children, would equal 50% of the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability; or
(iii) the dependants are 3 or more children, a monthly payment of a sum that, when combined with 50% of the federal benefits payable to or for those children, would equal the total of
(A) 60% of the monthly rate of compensation under this Part that would have been payable if the deceased worker had, at the date of death, sustained a permanent total disability; and
(B) $296.22 per month for each child beyond 3 in number,
subject, in all cases, to the minimum set out in paragraph (g);
(g) the minimum allowances payable under paragraphs (a), (b) and (f) must be the allowances that would be payable if the allowances were calculated under those paragraphs in respect of a deceased worker with average earnings of $31 912.40 per annum;
(h) where there is
(i) no dependent spouse or child entitled to compensation under this section, but a worker leaves other dependants, a sum reasonable and proportionate to the pecuniary loss suffered by those dependants by reason of the death, to be determined by the Board, but not exceeding in the whole $524.26 per month for life or a lesser period as determined by the Board; or
(ii) a dependent spouse, or a dependent child or children, entitled to compensation under this section, but not a spouse and child or children, and, in addition, the worker leaves a dependent parent or parents, then, in addition to the compensation payable to the spouse or children, a sum, reasonable and proportionate to the pecuniary loss suffered by the dependent parent or parents by the death, to be determined by the Board, but not exceeding $524.26 per month for life or a lesser period as determined by the Board;
(i) where
(i) no compensation is payable under the foregoing provisions of this subsection; or
(ii) the compensation is payable only to a spouse, a child or children or a parent or parents,
but the worker leaves a spouse, child or parent who, though not dependent on the worker's earnings at the time of the worker's death, had a reasonable expectation of pecuniary benefit from the continuation of the life of the worker, payments, at the discretion of the Board, to that spouse, child or children, parent or parents, but not to more than one of those categories, not exceeding $524.26 per month for life or a lesser period determined by the Board; and
(j) where the worker leaves no dependent widow or widower, or the widow or widower subsequently dies, and the Board considers it desirable to continue the existing household, and when a suitable person acts as a foster parent in keeping up the household and taking care of and maintaining the children entitled to compensation, in a manner satisfactory to the Board, the same allowance is payable to the foster parent and children as would have been payable to a widow or widower and children, and must continue as long as those conditions continue.
(4) Where an invalid spouse ceases to be an invalid, or a widow or widower with dependent children no longer has dependent children or there is a reduction in the number of dependent children, the spouse, widow, widower or children is then entitled to the same category of benefits as would have been payable if the death of the worker had occurred on the date the invalid spouse ceases to be an invalid or the widow or widower no longer has dependent children, or the number of dependent children is reduced, as the case may be.
(5) Where there is a widow or widower and a child or children, and the widow or widower subsequently dies, the allowances to the children must, if they are in other respects eligible, continue and be calculated in the same manner as if the worker had died leaving no dependent spouse.
(6) Where at the date of death a spouse is not an invalid, but is suffering from a disability that results in a substantial impairment of earning capacity, the Board may, having regard to the degree of disability or the extent of impairment of earning capacity, pay the spouse a proportion of the compensation that would have been payable if the spouse had been an invalid.
(7) Where 2 workers are married to each other and both are contributing to the support of a common household, each is deemed to be a dependant of the other.
(8) Where 2 parents contribute to the support of a common household at which their children also reside, the children are deemed to be dependants of the parent whose death is compensable under this Part.
(9) Where compensation is payable as the result of the death of a worker, or of injury resulting in death, and where at the date of death the worker and dependent spouse were living separate and apart, and
(a) there was in force at the date of death a court order or separation agreement providing periodic payments for support of the dependent spouse, or children living with that spouse, no compensation under subsection (3) is payable to the spouse or children living with the spouse; but monthly payments must be made in respect of that spouse and those children equal to the periodic payments due under the order or agreement; or
(b) there was no court order or separation agreement in force at the date of death providing periodic payments for support of the dependent spouse, or children living with that spouse, and
(i) the worker and dependent spouse were living separate and apart for a period of less than 3 months preceding the date of death of the worker, compensation is payable as provided in subsection (3); or
(ii) the worker and dependent spouse were separated with the intention of living separate and apart for a period of 3 months or longer preceding the death of the worker, monthly payments must be made up to the level of support which the Board believes the spouse and those children would have been likely to receive from the worker if the death had not occurred.
(10) Compensation payable under subsection (9) must never exceed the compensation that would have been payable under subsection (3) if there had been no separation.
(11) Where a worker has lived with and contributed to the support and maintenance of a common law wife or common law husband, and
(a) where the worker and the common law wife or common law husband have no children, for a period of 3 years; or
(b) where the worker and the common law wife or common law husband have children, for a period of one year
immediately preceding the worker's death, and where the worker does not leave a dependent widow or widower, the Board may pay the compensation to which a dependent widow or widower would have been entitled under this Part to the common law wife or common law husband.
(12) Where
(a) a worker has lived with and contributed to the support and maintenance of a common law wife or common law husband for the period set out in subsection (11);
(b) the worker also left surviving a dependent widow or widower from whom, at the date of death, the worker was living separate and apart; and
(c) there is a difference in the amount of compensation payable to the widow or widower by reason of the separation and the amount of compensation that would have been payable to that person if that person and the worker had not been living separate and apart,
the Board may pay compensation to the common law wife or common law husband up to the amount of the difference.
(13) In addition to any other compensation provided, a dependent widow or widower, common law wife or common law husband or foster parent in Canada to whom compensation is payable is entitled to a lump sum of $2 279.53.
(14) Where in any situation there is a need to apportion allowances payable to dependants among those dependants, the formula for apportionment must be at the discretion of the Board; but, unless the Board has grounds for a different apportionment, the apportionment must be:
(a) where there is a dependent spouse and one child, 2/3 to the dependent spouse and 1/3 to the child;
(b) where there is a dependent spouse and more than one child, 1/2 to the dependent spouse and 1/2 among the children in equal shares; and
(c) where there are children but no dependent spouse, among the children in equal shares.
(15) Where personal injury to, disablement of or death of a worker occurs in the course of the worker's employment as a direct result of enemy warlike action or counteraction taken against it and provision has been made for compensation in respect of it for the worker or the worker's dependants by the government of Canada, the worker or the dependants are entitled to compensation under this Part only when the compensation provided by the government of Canada is less than that provided by this Act, and then only to the extent of the difference.
(16) If a dependant is entitled to receive compensation
(a) as a result of the death of a worker, and
(b) as a result of the subsequent death of another worker,
the total compensation payable for the dependant as a result of those deaths is an amount that the Board considers appropriate.
(16.1) The compensation payable for a dependant under subsection (16) must not
(a) be less than the highest of the amounts that would otherwise be payable in respect of the death of any of the workers, and
(b) be more than 90% of the average net earnings of a worker whose wage rate is the maximum wage rate established under section 33 (6) and (7) for the year in which the last death referred to in subsection (16) (b) occurred.
(16.2) For the purposes of subsection (16.1), "average net earnings" means the average net earnings calculated in accordance with section 33.8.
(17) Where a situation arises that is not expressly covered by this section, or where some special additional facts are present that would, in the Board's opinion, make the strict application of this section inappropriate, the Board must make rules and give decisions it considers fair, using this section as a guideline.
18 (1) Where, on July 1, 1974,
(a) compensation is being paid to dependants in respect of deaths occurring prior to that date;
(b) those dependants are not receiving or entitled to receive benefits under the Canada Pension Plan; and
(c) the dependant is a widow who is 50 years of age or over, or is an invalid spouse, or the dependants are children, or a widow and children,
there must be added to the monthly payments the sum of $396.65 for each such dependent spouse and $123.11 for each dependent child.
(2) Where dependants would qualify for the increases in subsection (1) but for the fact that they are receiving or entitled to receive benefits under the Canada Pension Plan, and where the amount of benefits under the Canada Pension Plan is less than the amounts set out in subsection (1), the monthly payments payable to those dependants under this Part must be increased by the amount by which the benefits under the Canada Pension Plan are less.
19 (1) In this subsection and subsections (2) and (2.1)
"former subsection" means the section 19 (1) that came into force on April 17, 1985 or the section 19 (4) repealed in 1994;
"interest" means interest calculated at a rate and in a manner set by the Board for the purposes of this section;
"monthly payments" mean monthly payments under this Act to a widow, widower, former common law wife or former common law husband of a deceased worker;
"person" does not include a widow or former common law wife of a deceased worker if the widow or former common law wife remarried or entered into a new common law relationship before April 17, 1985.
(2) A person whose monthly payments were discontinued by application of a former subsection is entitled to
(a) monthly payments beginning on the later of
(i) the expiry of the 2 year period for which payment was made under the former subsection, or
(ii) the repeal of the former subsection,
(b) the amount, if any, by which, during the period from April 17, 1985 to the beginning of monthly payments under paragraph (a), the total amount of compensation described by section 17 that the person would have received if the former subsection had not been in force exceeds the sum paid to the person under the former subsection, and
(c) interest on any amount payable under paragraph (b).
(2.1) In calculating monthly payments for the purposes of subsection (2), adjustments are deemed to have been made under section 25, as it read immediately before being amended by the Workers Compensation Amendment Act, 2002, for the months the former subsection was in force.
(3) [Repealed 1985-68-122.]
(4) [Repealed 1994-24-7.]
19.1 The Board must make periodic payments under section 17, 18 or 19 for the life of the person to whom the payment is to be made, unless a shorter period applies under section 17, 18 or 19, as the case may be.
20 The Board may from time to time require the proof of the existence and condition of dependants in receipt of compensation payments that is deemed necessary by the Board, and pending the receipt of that proof may withhold further payments.
21 (1) In addition to the other compensation provided by this Part, the Board may furnish or provide for the injured worker any medical, surgical, hospital, nursing and other care or treatment, transportation, medicines, crutches and apparatus, including artificial members, that it may consider reasonably necessary at the time of the injury, and thereafter during the disability to cure and relieve from the effects of the injury or alleviate those effects, and the Board may adopt rules and regulations with respect to furnishing health care to injured workers entitled to it and for the payment of it. The Board may make a daily allowance to an injured worker for the worker's subsistence when, under its direction, the worker is undergoing treatment at a place other than the place where he or she resides, and the power of the Board to make a daily allowance for subsistence under this section extends to an injured worker who receives compensation, regardless of the date the worker first became entitled to compensation.
(2) Where in a case of emergency, or for other justifiable cause, a physician or qualified practitioner other than the one provided by the Board is called in to treat the injured worker, and if the Board finds there was a justifiable cause and that the charge for the services is reasonable, the cost of the services must be paid by the Board.
(3) The Board may in its discretion authorize employers to furnish or provide health care at the expense of the Board and on terms fixed by it. Every employer must, at the employer's own expense, furnish to a worker injured in the employer's employment, when necessary, immediate conveyance and transportation to a hospital, physician or qualified practitioner for initial treatment.
(4) Where a worker received, before April 1, 1972, health care under
(a) the Canada Shipping Act; or
(b) a health care plan approved by the Board,
the worker is entitled to receive, in accordance with this section, additional health care.
(5) Where additional health care is provided by the Board under subsection (4), its cost may be charged in the manner the Board considers proper.
(6) Health care furnished or provided under any of the preceding subsections of this section must at all times be subject to the direction, supervision and control of the Board; and the Board may contract with physicians, nurses or other persons authorized to treat human ailments, hospitals and other institutions for any health care required, and to agree on a scale of fees or remuneration for that health care; and all questions as to the necessity, character and sufficiency of health care to be furnished must be determined by the Board. The fees or remuneration for health care furnished under this Act must not be more than would be properly and reasonably charged the worker if the worker were paying, and the amount must be fixed and determined by the Board, and no action for an amount larger than that fixed by the Board lies in respect of health care.
(7) Without limiting the power of the Board under this section to supervise and provide for the furnishing of health care in every case where it considers the exercise of that power is expedient, the Board must permit health care to be administered, so far as the selection of a physician or qualified practitioner is concerned, by the physician or qualified practitioner who may be selected or employed by the injured worker.
(8) The Board may assume the responsibility of replacement and repair of
(a) artificial appliances, including artificial members damaged or broken as the result of an accident arising out of and in the course of the employment of the worker; and
(b) eyeglasses, dentures and hearing aids broken as a result of an accident arising out of and in the course of employment if that breakage is accompanied by objective signs of personal injury, or, where there is no personal injury, if the accident is otherwise corroborated and the Board is satisfied the worker was not at fault.
(9) Where an injury to a worker results in serious impairment of the worker's sight, the Board may, to protect the worker's remaining vision, provide the worker with protective eyeglasses.
22 (1) Subject to sections 34 and 35, if a permanent total disability results from a worker's injury, the Board must pay the worker compensation that is a periodic payment that equals 90% of the worker's average net earnings.
(2) The compensation awarded under this section must not be less than $1 464.75 per month.
23 (1) Subject to subsections (3) to (3.2) and sections 34 and 35, if a permanent partial disability results from a worker's injury, the Board must
(a) estimate the impairment of earning capacity from the nature and degree of the injury, and
(b) pay the worker compensation that is a periodic payment that equals 90% of the Board's estimate of the loss of average net earnings resulting from the impairment.
(2) The Board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or mutilations which may be used as a guide in determining the compensation payable in permanent disability cases.
(3) Subject to sections 34 and 35, if
(a) a permanent partial disability results from a worker's injury, and
(b) the Board makes a determination under subsection (3.1) with respect to the worker,
the Board may pay the worker compensation that is a periodic payment that equals 90% of the difference between
(c) the average net earnings of the worker before the injury, and
(d) whichever of the following amounts the Board considers better represents the worker's loss of earnings:
(i) the average net earnings that the worker is earning after the injury;
(ii) the average net earnings that the Board estimates the worker is capable of earning in a suitable occupation after the injury.
(3.1) A payment may be made under subsection (3) only if the Board determines that the combined effect of the worker's occupation at the time of the injury and the worker's disability resulting from the injury is so exceptional that an amount determined under subsection (1) does not appropriately compensate the worker for the injury.
(3.2) In making a determination under subsection (3.1), the Board must consider the ability of the worker to continue in the worker's occupation at the time of the injury or to adapt to another suitable occupation.
(4) Where permanent partial disability results from the injury, the minimum compensation awarded under this section must be calculated in the same manner as provided by section 29 (2) for temporary total disability but to the extent only of the partial disability.
(5) Where the worker has suffered a serious and permanent disfigurement which the Board considers is capable of impairing the worker's earning capacity, a lump sum in compensation may be paid, although the amount the worker was earning before the injury has not been diminished.
23.1 Compensation payable under section 22 (1), 23 (1) or (3), 29 (1) or 30 (1) may be paid to a worker, only
(a) if the worker is less than 63 years of age on the date of the injury, until the later of the following:
(i) the date the worker reaches 65 years of age;
(ii) if the Board is satisfied the worker would retire after reaching 65 years of age, the date the worker would retire, as determined by the Board, and
(b) if the worker is 63 years of age or older on the date of the injury, until the later of the following:
(i) 2 years after the date of the injury;
(ii) if the Board is satisfied that the worker would retire after the date referred to in subparagraph (i), the date the worker would retire, as determined by the Board.
23.2 (1) This section applies to a worker who is receiving periodic payments under section 22 (1) or 23 (1) or (3).
(2) The Board must set aside, at the time a periodic payment is made to a worker, an amount that
(a) is equal to 5% of the periodic payment, and
(b) is in addition to the periodic payment.
(3) A worker may apply to the Board to contribute to the amount set aside or to be set aside under subsection (2) an amount that is not less than 1% and not greater than 5% of each subsequent periodic payment made to the worker.
(4) Subject to subsection (5), if the worker makes an application under subsection (3), the Board must, as soon as practicable, deduct the amount of the worker's contribution from each subsequent periodic payment made to the worker and add this contribution to the amount set aside under subsection (2).
(5) The deductions made by the Board under subsection (4) may not be varied, except in response to an application by the worker to stop the deductions.
(6) A worker may only once
(a) make an application under subsection (3), and
(b) apply to stop the deductions.
(7) An application made under subsection (3) or (5) must be made in a form acceptable to the Board.
(8) The Board must provide each worker annually with a statement containing all relevant information about the funds accumulated by the Board for payment of the worker's retirement benefit.
23.3 (1) Subject to subsection (3), on the date determined under subsection (2), a worker is entitled to receive a lump sum that equals the total of
(a) the amounts set aside for payment to the worker under section 23.2 (2),
(b) the contributions, if any, made by the worker under section 23.2 (4), and
(c) the accumulated investment income earned on those amounts and contributions.
(2) A worker's entitlement under subsection (1) is effective
(a) subject to paragraph (b), on the date the worker reaches 65 years of age, or
(b) on the date of the last periodic payment to the worker, if that date is after the date the worker reaches 65 years of age.
(3) Despite section 35 (4), if a worker dies before receiving his or her retirement benefit under subsection (1), the Board must pay the lump sum to which the worker is entitled under that subsection to
(a) a beneficiary designated by the worker, or
(b) the worker's estate, if a beneficiary is not designated.
23.4 (1) The Board must establish a reserve in the accident fund into which the amounts and contributions referred to in section 23.2 (2) and (4) must be deposited.
(2) The funds deposited in the reserve must be held and invested in the name of the reserve and those investments must clearly indicate that they are held in that reserve for payment of retirement benefits under section 23.3.
(3) If approved by the board of directors and on terms set by the Board, the Board may authorize a financial institution, as defined in the Financial Institutions Act, or a bank to administer the reserve referred to in subsection (1), and a financial institution or bank that is so authorized must comply with the relevant provisions of this Part as if it were the Board.
23.5 (1) If a worker has a permanent total disability, the Board must assess, within the 3 month period before the retirement benefit is payable to the worker, the need or continued need of the worker for services and personal supports under sections 16 and 21.
(2) After the assessment under subsection (1) is completed, the Board must take all actions necessary to provide to the worker, for his or her life, the services and personal supports under sections 16 and 21 that the Board considers are necessary.
(3) This section does not limit the power of the Board to otherwise provide services and personal supports to workers at any time under sections 16 and 21.
24 (1) Despite section 96 (1), this section applies to the claims for compensation that the Board may by regulation determine, provided that
(a) the worker is still suffering from a compensable disability sustained more than 10 years before the application under subsection (2); and
(b) a permanent disability award was made by the Board based on a percentage of total disability of 12% or greater, or the case is of a kind in which the Board uses a projected loss of earnings method in calculating compensation.
(2) With respect to a claim for compensation to which this section applies, the Board must, on application by the worker, reconsider the compensation benefits; and, if it decides that, in its opinion, the worker is not receiving adequate compensation having regard to the projected loss of income resulting from the disability, periodic payments must be established or raised accordingly.
(3) Where a worker is under the age of 65 years, compensation is considered adequate for the purposes of this section if it equals 75% of the projected loss of earnings resulting from the disability.
(4) Where a worker is 65 years of age or over, compensation is considered adequate for the purposes of this section if it equals 75% of the projected loss of retirement income resulting from the disability.
(5) Where a worker is under the age of 65 years, periodic payments established or raised under this section are subject to readjustment by reference to subsection (4) on attaining the age of 65 years.
(6) The calculation of benefits under this section must be made in the manner the Board determines.
(7) Notwithstanding that a worker suffering a permanent disability has received an award that has been wholly or partly commuted, or an award for a fixed term, the worker may apply under this section, but the worker is deemed to be still receiving the periodic payments that have been commuted, or the life equivalent of the periodic payments made for a fixed term.
(8) Section 31 applies to the calculation of compensation under this section; but the calculation must not be limited by reference to average earnings at the time of injury.
(9) The periodic payments awarded to a worker following a reconsideration under this section must not exceed the maximum the Board would award to a worker in an occupational category similar to the occupation of the applicant worker before the injury if he or she had, at the effective date of the reconsideration under this section, suffered a compensable disability similar to the compensable disability being suffered by the applicant worker.
(10) A worker may reapply under this section for reconsideration of his or her compensation benefits after a further 10 years have elapsed since the last previous application under this section.
(11) Where a worker whose disability occurred before January 1, 1965 applies under this section within one year of the earliest date on which the worker becomes eligible to do so, an increase or establishment of benefits under this section is effective from September 1, 1975, and in all other cases the effective date for the commencement of an increase or establishment of benefits under this section is the date the application is received at the Board.
(12) A decision under this section must not result in periodic payments to a worker being lower than they would be if no application had ever been made under this section.
25 (1) For the purposes of this section, the Board must, as of January 1 of each year,
(a) determine the percentage change in the consumer price index for Canada, for all items, for the 12 month period ending on October 31 of the previous year, as published by Statistics Canada, and
(b) subtract 1% from the percentage change determined under paragraph (a).
(2) The percentage resulting from calculations made under subsection (1) must not be greater than 4% or less than 0%.
(3) On January 1 of each year, the Board must adjust, in accordance with subsection (4), the periodic payments of compensation made in respect of an injury or a death occurring more than 12 months before the date of the adjustment.
(4) For the purposes of subsection (3), the Board must adjust the periodic payments of compensation to be paid in that calendar year for the injury or death by the percentage determined under subsection (1).
(5) If the Board starts or restarts periodic payments of compensation for an injury or a death that occurred more than 12 months before the payments are started or restarted, the Board must, under this section, adjust all periodic payments as if the payments were made continuously from the date of injury or death.
25.2 (1) Subject to subsection (3), the Board must adjust every dollar amount referred to in this Act on January 1 of each year by applying the percentage change in the consumer price index for Canada, for all items, for the 12 month period ending on October 31 of the previous year, as published by Statistics Canada.
(2) On the Board making an adjustment of a dollar amount under subsection (1), the dollar amount referred to in this Act is deemed to be amended.
[Note: For convenience, orders made under this section are reprinted at the end of this Act.]
(3) Subsection (1) does not apply to a dollar amount referred to in section 33 (4), (6), (8) and (10).
26 (1) Where periodical payments for permanent disability were awarded by the Board prior to January 1, 1966, and where
(a) the award was for a percentage of total disability of 12% or greater, and the whole of the periodical payments was commuted prior to that date;
(b) a portion of the periodical payments equivalent to 12% of total disability or greater was commuted prior to that date; or
(c) the award was for a percentage of total disability of 12% or greater and was of periodical payments for a fixed term,
and where the worker to whom the award had been made is still suffering from the disability, the Board may, on the application of the worker, establish new periodic payments, which are to commence for the month in which the application is received at the Board.
(2) Where the award was for a fixed term that has not expired or been commuted, this section applies on expiry of the term.
(3) In order to calculate the rate of new periodic payments to be established under this section, the Board must determine
(a) the monthly payments that would have been payable on January 1, 1966 if the award had been of periodic payments for life and there had been no commutation, or, where the commutation was partial, the additional rate of monthly payments that would have been payable on that date if there had been no commutation; and
(b) the additional amount of monthly payments that would have been payable for the month during which the application is received by way of increases on the amounts calculated under paragraph (a) if those amounts had continued to be due; namely, the total of all increases that would have been made from January 1, 1966 to and including the last day of the month preceding the date the application is received.
(4) The rate of the new periodical payments to be established under this section must be the amount calculated under subsection (3) (b); but future adjustments under section 25 must be based on the sum of the amounts calculated under subsection (3) (a) and (b).
(5) This section does not apply where the purpose of the section has been achieved as a result of an application under section 24 or in some other way.
27 Where dependants are receiving or are eligible to receive periodic payments in respect of the death of a worker occurring prior to July 1, 1974, and in respect of which payments there was no provision prior to that date for increases according to the consumer price index, those periodical payments must be adjusted as of August 1, 1975, so that after that date the periodical payments will be at the same rate as if the provisions of the Act relating to increases according to the consumer price index between January 1, 1966 and July 1, 1974 had been applicable.
28 There must be published in the Gazette amendments to the Act resulting from changes in the consumer price index.
29 (1) Subject to sections 34 (1) and 35 (1), (4) and (5), if a temporary total disability results from a worker's injury, the Board must pay the worker compensation that is a periodic payment that equals 90% of the worker's average net earnings.
(2) The compensation awarded under this section must not be less than an amount equal to $337.98 per week, unless the worker's average earnings are less than that sum per week, in which case the worker must receive compensation in an amount equal to the worker's average earnings.
30 (1) Subject to sections 34 (1) and 35 (1), (4) and (5), if a temporary partial disability results from a worker's injury, the Board must pay the worker compensation that is a periodic payment that equals 90% of the difference between
(a) the worker's average net earnings before the injury, and
(b) whichever of the following amounts the Board considers better represents the worker's loss of earnings:
(i) the average net earnings that the worker is earning after the injury;
(ii) the average net earnings that the Board estimates the worker is capable of earning in a suitable occupation after the injury.
(2) Where temporary partial disability results from the injury, the minimum compensation awarded under this section must be calculated in the same manner as prescribed by section 29 (2) for temporary total disability but to the extent only of the partial disability. Maximum compensation
31 (1) Where a worker is receiving compensation for a permanent or temporary disability, the worker must not receive compensation for a further or other disability in an amount that would result in the worker receiving in the aggregate compensation in excess of the maximum payable for total disability.
(2) Where a worker has received a lump sum in lieu of the periodic payments that otherwise would have been payable for a permanent disability, the worker is, for the purposes of subsection (1), deemed to be still in receipt of the periodic payments.
31.1 Despite section 23.1, the Board may not make a periodic payment to a worker under section 22 (1), 23 (1) or (3), 29 (1) or 30 (1) if the worker ceases to have the disability for which the periodic payment is to be made.
32 (1) For the purpose of determining the amount of compensation payable where there is a recurrence of temporary total disability or temporary partial disability after a lapse of 3 years following the occurrence of the injury, the Board may calculate the compensation as if the recurrence were the happening of the injury if it considers that by doing so the compensation payable would more nearly represent the percentage of actual loss of earnings suffered by the worker by reason of the recurrence of the injury.
(2) Where a worker has been awarded compensation for permanent partial disability for the original injury and compensation for recurrence of temporary total disability under subsection (1) is calculated by reference to the average earnings of the worker at the date of the recurrence, the compensation must be without deduction of the compensation payable for the permanent partial disability; but the total compensation payable must not exceed the maximum payable under this Part at the date of the recurrence.
(3) Where more than 3 years after an injury a permanent disability or an increased degree of permanent disability occurs, the compensation payable for the permanent disability or increased degree of permanent disability may be calculated by reference to the average earnings of the worker at the date of the occurrence of the permanent disability or increased degree of permanent disability.
33 (1) The Board must determine the amount of average earnings and the earning capacity of a worker with reference to the worker's average earnings and earning capacity at the time of the worker's injury.
(2) Subject to section 3 (5), the Board must determine the amount of average earnings of a worker in accordance with this section and sections 33.1 to 33.7.
(3) A determination of the amount of average earnings of a worker under sections 33.1 to 33.7 may not exceed the maximum wage rate as determined under subsections (6) to (10).
(3.1) The Board must not include the following in determining the amount of average earnings of a worker:
(a) the employer's payments on behalf of the worker for
(i) contributions payable under the Canada Pension Plan,
(ii) premiums payable under the Employment Insurance Act (Canada), and
(iii) contributions to a retirement, pension, health and welfare, life insurance or another benefit plan for the worker or the worker's dependants;
(b) special expenses or allowances paid to the worker because of the nature of the worker's employment.
(3.2) The Board may include, in determining the amount of average earnings of a worker, income from employment benefits payable to the worker under the Employment Insurance Act (Canada) during the period for which average earnings are determined, only if, in the Board's opinion, the worker's employment during that period was in an occupation or industry that results in recurring seasonal or recurring temporary interruptions of employment.
(4) Notwithstanding any other provision of this Act, all periodic payments awarded as compensation for permanent partial disability to workers injured prior to March 18, 1943, who, on January 1, 1955, or after that are in receipt of those periodical payments must be calculated or recalculated at a rate of 66 2/3% of average earnings of not less than $2 000 nor more than $2 500 per annum; but compensation is not payable under this subsection for a period prior to January 1, 1955.
(5) The compensation payable to workers who, on July 1, 1974, are in receipt of compensation for permanent total disability must not be less than $1 464.75 per month.
(6) Until changed under subsection (7), the maximum wage rate under subsection (1) is $11 200 per year. [Note: see subsection (10).]
(7) Prior to the end of each calendar year, the Board must determine the maximum wage rate to be applicable for the following calendar year.
(8) The maximum wage rate to be determined under subsection (7) must be an amount that the Board thinks represents the same relationship to the sum of $11 200 as the annual average of wages and salaries in the Province for the year preceding that in which the determination is made bears to the annual average of wages and salaries for the year 1972; and the resulting figure may be rounded to the nearest $100. [Note: see subsection (10).]
(9) For the purpose of determining annual average of wages and salaries under subsection (8), the Board may use data published or supplied by Statistics Canada.
(10) Where a worker is injured after December 31, 1985, the references in subsections (6) and (8) to $11 200 must be read as references to $40 000, and the reference in subsection (8) to 1972 must be read as a reference to 1984. [Note: The maximum wage rate applicable for the year 2008 is $66 500, as determined by the Board and set out in the Workers' Compensation Board minutes of June 18, 2007.]
33.1 (1) Subject to sections 33.5 to 33.7, the Board must determine, for the shorter of the following periods, the amount of average earnings of a worker based on the rate at which the worker was remunerated by each of the employers for whom he or she was employed at the time of the injury:
(a) the initial payment period;
(b) the period starting on the date of the worker's injury and ending on the date the worker's injury results in a permanent disability, as determined by the Board.
(2) Subject to sections 33.2 to 33.7, if a worker's disability continues after the end of the period referred to in subsection (1) (a) and (b) that is shorter for the worker, the Board must, for the period starting after the end of that shorter period, determine the amount of average earnings of the worker based on the worker's gross earnings, as determined by the Board, for the 12 month period immediately preceding the date of injury.
(3) If 2 or more sections of sections 33.2 to 33.7 apply to the same worker for the same injury, the Board must determine the section that best reflects the worker's circumstances and apply that section.
33.2 If a worker at the time of injury is an apprentice in a trade, an occupation or a profession or is a person referred to in paragraph (b) of the definition of "worker", the Board's determination of the amount of average earnings under section 33.1 (2) must be based on the gross earnings, as determined by the Board, for the 12 month period immediately preceding the date of injury, of a qualified person employed at the starting rate in the same trade, occupation or profession
(a) by the same employer, or
(b) if no person is so employed, by an employer in the same region.
33.3 In the case of a worker employed, on other than a casual or temporary basis, by the employer for less than 12 months immediately preceding the date of the injury, the Board's determination of the amount of average earnings under section 33.1 (2) must be based on the gross earnings, as determined by the Board, for the 12 month period immediately preceding the date of injury, of a person of similar status employed in the same type and classification of employment
(a) by the same employer, or
(b) if no person is so employed, by an employer in the same region.
33.4 (1) If exceptional circumstances exist such that the Board considers that the application of section 33.1 (2) would be inequitable, the Board's determination of the amount of average earnings of a worker may be based on an amount that the Board considers best reflects the worker's loss of earnings.
(2) Subsection (1) does not apply in the circumstances described in section 33.2, 33.3, 33.5 or 33.6.
33.5 If a worker's pattern of employment at the time of the injury is casual in nature, the Board's determination of the amount of average earnings under section 33.1 from the date of injury must be based on the worker's gross earnings, as determined by the Board, for the 12 month period immediately preceding the date of injury.
33.6 If an independent operator or employer, to whom the Board directs that this Part applies under section 2 (2), has purchased coverage under this Act, the Board must determine the amount of average earnings under section 33.1 from the date of injury based on the gross earnings for which coverage is purchased.
33.7 If a worker had no earnings at the time of the injury, the Board must determine the amount of average earnings of a worker under section 33.1 from the date of injury in a manner that the Board considers appropriate.
33.8 (1) In this section, "allowable deductions" means the deductions estimated by the Board under this section, based on the worker's earnings, for the following:
(a) premiums payable by a worker under the Employment Insurance Act (Canada);
(b) contributions payable by a worker under the Canada Pension Plan;
(c) probable income taxes payable by a worker under the Income Tax Act and the Income Tax Act (Canada).
(2) This section applies to the determination of average net earnings for a worker for whichever of the following periods is shorter for the worker:
(a) the initial payment period;
(b) the period starting on the date of the worker's injury and ending on the date the worker's injury results in a permanent disability, as determined by the Board.
(3) In order to determine a worker's average net earnings under this section, the Board must subtract the worker's allowable deductions for the immediately preceding calendar year from the worker's average earnings, as determined under sections 33.1 to 33.7.
(4) For the purposes of this section, premiums and contributions referred to in subsection (1) (a) and (b) are deemed to be payable by all workers.
(5) To estimate the probable income taxes for the purposes of this section, the Board must assume that
(a) the following deductions under the Income Tax Act and the Income Tax Act (Canada) are made for a worker:
(i) the amounts that may be deducted under section 4.3 (1) (c) of the Income Tax Act and section 118 (1) (c) of the Income Tax Act (Canada), multiplied by 1.5;
(ii) the amounts that may be deducted under section 4.64 of the Income Tax Act and section 118.7 of the Income Tax Act (Canada), and
(b) no other deductions may be made for a worker under the Acts referred to in paragraph (a).
33.9 (1) In this section, "allowable deductions" means the deductions estimated by the Board under this section, based on the worker's earnings, for the following:
(a) if premiums are payable by the worker under the Employment Insurance Act (Canada), those premiums;
(b) if contributions are payable by the worker under the Canada Pension Plan, those contributions;
(c) unless a worker is exempt from, or not subject to, the taxes imposed by the Income Tax Act and the Income Tax Act (Canada), probable income taxes payable by the worker under the Income Tax Act and the Income Tax Act (Canada).
(2) This section applies to the determination of average net earnings for a worker starting after the end of the period referred to in section 33.8 (2) (a) and (b) that is shorter for the worker.
(3) In order to determine a worker's average net earnings under this section, the Board must subtract the worker's allowable deductions for the immediately preceding calendar year from the worker's average earnings, as determined under sections 33.1 to 33.7.
(4) To estimate the probable income taxes for the purposes of this section, the Board must assume that the following are the only deductions that may be made for a worker under the Income Tax Act and the Income Tax Act (Canada):
(a) the amounts that may be deducted under section 4.3 (1) (c) of the Income Tax Act and section 118 (1) (c) of the Income Tax Act (Canada);
(b) the amounts that may be deducted under section 4.64 of the Income Tax Act and section 118.7 of the Income Tax Act (Canada);
(c) the amounts that may be deducted under section 4.3 (1) (a), (b) or (e) of the Income Tax Act and section 118 (1) (a), (b) or (d) of the Income Tax Act (Canada).
33.91 (1) The Board may establish for each calendar year one or more schedules of allowable deductions, or procedures for determining allowable deductions, that may be used as a guide to determining the allowable deductions under sections 33.8 and 33.9.
(2) The Board is not required to consider a worker's actual circumstances
(a) in establishing a schedule or procedure under subsection (1), or
(b) in calculating the average net earnings of a worker under section 33.8 and 33.9.
34 (1) In fixing the amount of a periodic payment of compensation, consideration must be had to payments, allowances or benefits which the worker may receive from the worker's employer during the period of the disability, including a pension, gratuity or other allowance provided wholly at the expense of the employer, and a sum deducted under this section from the compensation otherwise payable may be paid to the employer out of the accident fund.
(2) Subject to sections 7 (4.1), 22 (2) and 23 (4), the Board must deduct, from the amount of a periodic payment of compensation paid to a worker under section 22 (1) or 23 (1) or (3) for an injury, an amount equal to 50% of any disability benefit that the worker is paid in respect of the injury under the Canada Pension Plan.
35 (1) Payments of compensation must be made periodically at the times and in the manner and form the Board considers advisable and, in the case of minors or persons of unsound mind who the Board considers are incapable of managing their own affairs, may be made to the persons that the Board thinks are best qualified in all the circumstances to administer the payments, whether or not the person to whom the payment is made is the legal guardian of the person in respect of whom the payment is being made.
(2) The Board may in its discretion
(a) commute all or part of the future amounts that are to be set aside for payment of a retirement benefit and the periodic payments due or payable to the worker to one or more lump sum payments, to be applied as directed by the Board; and
(b) divide into periodic payments compensation payable in a lump sum.
(3) In case of death or permanent total disability or in case of permanent partial disability where the impairment of the earning capacity of the worker exceeds 10% of the worker's earning capacity at the time of the injury, commutation of periodic payments must not be made under subsection (2) except on the application of and at an amount agreed to by the dependant or worker entitled to the payments.
(4) Any compensation owing or accrued to a worker or pensioner for a period not exceeding 3 months before his or her death may, at the discretion of the Board, be paid to a widow, widower or a person who takes charge of the funeral arrangements, free from debts of the deceased.
(5) Where a worker is receiving custodial care in a hospital or elsewhere, periodical payments of compensation due to the worker under this Part may be paid to or for the benefit of
(a) the worker to the extent the worker is able to make use of the money for his or her personal needs or is able to manage his or her own affairs; or
(b) any person who is dependent on the worker for support,
or in a case of temporary disability of the worker may be
(c) applied to the maintenance of a home to which the worker is likely to return on his or her recovery; or
(d) accumulated by the Board for payment to the worker on his or her recovery,
or in a case of permanent disability may be applied toward the cost of the worker's maintenance, but, in that case and where the worker is conscious, there must be paid to, or for the use of, the worker a comfort allowance of at least $201.95 out of each periodic payment.
(6) Subsection (5) applies, regardless of the date of the injury.
35.1 (1) In this section, "transition date" means the date that this section comes into force.
(2) Subject to subsection (7), this Act, as amended by the Workers Compensation Amendment Act, 2002, applies to an injury that occurs on or after the transition date.
(3) Subject to subsections (4) to (8), this Act, as it read immediately before the transition date, applies to an injury that occurred before the transition date.
(4) Subject to subsections (5) to (8), if a worker's permanent disability first occurs on or after the transition date, as a result of an injury that occurred before the transition date, this Act, as amended by the Workers Compensation Amendment Act, 2002, applies to the permanent disability.
(5) For the purposes of subsection (4), sections 22 (1) and 23 of this Act, as amended by the Workers Compensation Amendment Act, 2002, apply as if
(a) all references, other than references in section 23 (3) (d) (i),
(i) to 90% were read as 75%, and
(ii) to "average net earnings" were read as "average earnings determined under this Act immediately before the transition date", and
(b) section 23 (3) (d) (i) read as follows:
(i) the average earnings that the worker is earning after the injury, as determined under this Act immediately before the transition date.
(6) Section 34 (2) of this Act, as enacted by the Workers Compensation Amendment Act, 2002, does not apply in the circumstances described in subsection (4).
(7) Subject to section 19 (2.1) of this Act, section 25 of this Act, as that section read on the date section 35.2 (5) came into force, applies to compensation paid on or after that date to a worker, irrespective of the date the worker was injured.
(8) If a worker has, on or after the transition date, a recurrence of a disability that results from an injury that occurred before the transition date, the Board must determine compensation for the recurrence based on this Act, as amended by the Workers Compensation Amendment Act, 2002.
35.2 (1) In this section, "transition date" means the date on which this section comes into force.
(2) Subject to subsection (5), this Act, as amended by the Skills Development and Labour Statutes Amendment Act, 2003, applies to the death of a worker that occurs on or after June 30, 2002.
(3) Subject to subsections (5) and (6), this Act, as it read immediately before June 30, 2002, applies to the death of a worker that occurred before June 30, 2002.
(4) Subject to subsections (5) and (6), in recalculating compensation under section 17 (4) or (5), the Board must, if the actual date of the death of a worker was before June 30, 2002, base the recalculation on this Act as it read immediately before June 30, 2002.
(5) Subject to section 19 (2.1) of this Act, section 25 of this Act, as amended by the Skills Development and Labour Statutes Amendment Act, 2003, applies to compensation paid on or after the transition date in respect of the death of a worker irrespective of the date the worker died.
(6) Commencing on the transition date, for the purposes of applying subsections (3) and (4), the Board must adjust the dollar amounts referred to in sections 17 and 18 and Schedule C of this Act, as it read immediately before June 30, 2002, in accordance with section 25.2 (1), as amended by the Skills Development and Labour Statutes Amendment Act, 2003.
(7) In applying section 17, as amended by Skills Development and Labour Statutes Amendment Act, 2003, to a death that occurred on or after June 30, 2002 but before the transition date, the Board must consider payments paid before the transition date.
Division 4 — Accident Fund and Assessments
36 (1) The Board must continue and maintain the accident fund for payment of the compensation, outlays and expenses under this Part and for payment of expenses incurred in administering Part 3 of this Act.
(2) The Board is solely responsible for the management of the accident fund and must manage it with a view to the best interests of the workers' compensation system.
37 (1) The following classes are established for the purpose of assessment in order to maintain the accident fund:
| Class 1: | Primary resource |
| Class 2: | Manufacturing |
| Class 3: | Construction |
| Class 4: | Transportation and warehousing |
| Class 5: | Trade |
| Class 6: | Public services |
| Class 7: | General services |
| Class 8: | Canadian Airlines International Ltd., Canadian Pacific Hotels Corporation, Canadian Pacific Railway Company, Cominco Ltd. |
| Class 9: | The Burlington Northern and Santa Fe Railway Company |
| Class 10: | Air Canada, Canadian National Railway Company, Via Rail Canada Inc. |
| Class 11: | British Columbia Assessment Authority, British Columbia Ferry Corporation, British Columbia Railway Company, Emergency and Health Services Commission, Government of British Columbia, Workers' Compensation Board of British Columbia. |
(2) The Board may do one or more of the following:
(a) create new classes in addition to those referred to in subsection (1);
(b) divide classes into subclasses and divide subclasses into further subclasses;
(c) consolidate or rearrange any existing classes and subclasses;
(d) assign an employer, independent operator or industry to one or more classes or subclasses;
(e) withdraw from a class
(i) an employer, independent operator or industry,
(ii) a part of the class, or
(iii) a subclass or part of a subclass,
and transfer it to another class or subclass or form it into a separate class or subclass;
(f) withdraw from a subclass
(i) an employer, independent operator or industry,
(ii) a part of the subclass, or
(iii) another subclass or part of another subclass,
and transfer it to another class or subclass or form it into a separate class or subclass.
(3) If the Board exercises authority under subsection (2), it may make the adjustment and disposition of the funds, reserves and accounts of the classes and subclasses affected that the Board considers just and expedient.
(4) Without limiting subsection (2) or (3), for the purposes of transition in relation to the classes established by subsection (1) as enacted by section 31 of the Labour Statutes Amendment Act, 1999, the Board may
(a) assign or reassign employers, independent operators or industries to those classes as the Board considers advisable, and
(b) make the adjustment and disposition of the funds, reserves and accounts of the pre-existing classes that the Board considers advisable.
38 (1) Every employer must
(a) keep at all times at some place in the Province, the location of which the employer has given notice to the Board, complete and accurate particulars of the employer's payrolls;
(b) cause to be furnished to the Board
(i) when the employer becomes an employer within the scope of this Part; and,
(ii) at other times as required by a regulation of the Board of general application or an order of the Board limited to a specific employer,
an estimate of the probable amount of the payroll of each of the employer's industries within the scope of this Part, together with any further information required by the Board; and
(c) furnish certified copies of reports of the employer's payrolls, at or after the close of each calendar year and at the other times and in the manner required by the Board.
(2) Where the employer fails to comply with subsection (1), the employer is liable to pay and must pay as a penalty for the default a percentage of the assessment prescribed by the regulations or determined by the Board, and the Board may make its own estimate of the payrolls and may make its assessment and levy on that estimate, and the employer is bound by it.
(3) In computing the amount of the payroll for the purpose of assessment, regard must be had only to that portion of the payroll that represents workers and employment within the scope of this Part. Where the wages of a worker exceed the maximum wage for one year as fixed for the time being under section 33, a deduction may be made where practical in respect of the excess; and where the wages of a worker are shown to exceed the above maximum wage rate, the Board may make a deduction where practical in respect of the portion in excess of that rate; and where a worker within the scope of this Part works at a nominal wage or no wage, the amount of the worker's average earnings for purposes of this Part may be fixed by the Board.
(4) If an employer does not comply with subsection (1), or if a statement made in pursuance of its requirements is not true and accurate, the employer, for every failure to comply and for every such statement, commits an offence against this Part.
39 (1) For the purpose of creating and maintaining an adequate accident fund, the Board must every year assess and levy on and collect from independent operators and employers in each class, by assessment rated on the payroll, or by assessment rated on a unit of production, or in a manner the Board considers proper, sufficient funds, according to an estimate to be made by the Board to
(a) meet all amounts payable from the accident fund during the year;
(b) provide a reserve in aid of industries or classes which may become depleted or extinguished;
(c) provide in each year capitalized reserves sufficient to meet the periodical payments of compensation accruing in future years in respect of all injuries which occur during the year;
(d) provide a reserve to be used to meet the loss arising from a disaster or other circumstance which the Board considers would unfairly burden the employers in a class;
(e) provide and maintain a reserve for payment of that portion of the disability enhanced by reason of a pre-existing disease, condition or disability; and
(f) provide and maintain a reserve for payment of retirement benefits.
(2) Assessments may be made in the manner and form and by the procedure the Board considers adequate and expedient, and may be general as applicable to a class or subclass, or special as applicable to an industry or part or department of it.
(3) Assessments may, wherever it is considered expedient, be collected in half yearly, quarterly or monthly installments, or otherwise; and where it appears that the funds in a class are sufficient for the time being, an instalment may be abated or its collection deferred.
(4) If the Board thinks that there are not sufficient funds to provide the compensation or additional compensation required to be paid under this Part, it may levy and collect from employers within the scope of this Part sufficient funds for this purpose without regard to the date of injury or the period during which the employer carried on an industry under this Part; and the levy and collection may be made in the manner and at the times the Board considers equitable, and may be by way of addition to the usual assessment or by levy of special or additional assessment.
(5) If the estimated assessments in a class prove insufficient, the Board may make further assessments and levies as necessary, or the Board may temporarily advance the amount of a deficiency out of any reserve provided for that purpose and add that amount to any subsequent assessments.
(6) The Board must notify each employer of the amount of each assessment due in respect of the employer's industry and the time when it is payable. The notice may be sent by post to the employer, and is deemed to be given to the employer on the day the notice is mailed.
(7) If for any reason an employer liable to assessment is not assessed in any year, the employer is nevertheless liable to pay the Board the amount for which the employer 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.
(8) If it is found, on an estimate made by the Board, that more than sufficient funds have been provided for the purposes set out in subsection (1) (a), (b), (d) and (e), the excess may be transferred to the capitalized reserves.
(9) Where special circumstances, including legislative change, result in claims being made or liabilities being imposed on the accident fund in excess of what the Board considers should reasonably be funded by assessments levied during the current year, the Board must raise sufficient funds by assessments during that year to meet the estimated payments due within the year, but need not establish within the year reserves to meet future payments on those claims or liabilities, and the Board may establish those reserves by assessments levied over a period of years.
40 (1) Where the Board
(a) notifies an employer of assessment rates or percentages determined by the Board in respect of the industries in which the employer is engaged; and
(b) informs the employer of the manner in which the assessment is calculated, and the date it is payable,
the notice constitutes an assessment under section 39, and the employer must, within the time limited in the notice,
(c) make a return on the form provided or prescribed by the Board; and
(d) remit the amount of the assessment.
(2) Every employer who neglects or refuses to comply with subsection (1) is liable for the penalty prescribed by the regulations or determined by the Board, and that penalty is enforceable as an assessment under this Part.
42 The Board must establish subclassifications, differentials and proportions in the rates as between the different kinds of employment in the same class as may be considered just; and where the Board thinks a particular industry or plant is shown to be so circumstanced or conducted that the hazard or cost of compensation differs from the average of the class or subclass to which the industry or plant is assigned, the Board must confer or impose on that industry or plant a special rate, differential or assessment to correspond with the relative hazard or cost of compensation of that industry or plant, and for that purpose may also adopt a system of experience rating.
43 The Board may, in a manner that it determines, vary the rates of assessment as between different employers or levy supplementary assessments according to the estimated exposure of workers to industrial noise, and it may do so whether or not hearing protection is worn.
44 (1) Where an employer engages in any industry within the scope of this Part and has not been assessed in respect of it, the Board, if it considers that the industry is to be carried on only temporarily, may require the employer to pay or to give security for the payment to the Board of a sum sufficient to pay the assessment for which the employer would be liable if the industry had been in existence when the last preceding assessment was made.
(2) Every employer who makes default in complying with a requirement of the Board under subsection (1) commits an offence against this Part.
45 (1) If an assessment or part of it is not 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, together with costs of the action.
(2) Where default is made in the payment of an assessment, or part of it, the Board may issue its certificate stating that the assessment was made, the amount remaining unpaid on account of it and the person by whom it was payable, and that certificate, or a copy of it certified by the secretary under the seal of the Board to be a true copy, may be filed with any district registrar of the Supreme Court, and when so filed becomes an order of that court and may be enforced as a judgment of the court against that person for the amount mentioned in the certificate.