2013 Statutory Review Committee Report - Vol. 1

WORKING TOGETHER Safe Accountable Sustainable

Volume One: The Report of the 2013 Statutory Review Committee on Workplace Health, Safety and Compensation

Executive Summary

The statutory review process offers opportunities for stakeholders to provide feedback ĂŶĚ ƚŽ ŝĚĞŶƚŝĨLJ ǁĂLJƐ ƚŽ ŵĂŬĞ ŝŵƉƌŽǀĞŵĞŶƚƐ ŝŶ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘ /Ŷ this report, the Statutory Review Committee (SRC) has considered how best to improve ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ŝŶ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂĚŽƌ ǁŚŝůĞ ďĂůĂŶĐŝŶŐ ƚŚĞ needs and priorities of key stakeholders ʹ workers, employers, and the Workplace Health, Safety and Compensation Commission (WHSCC).

The SRC has been mindful of the work carried out in the past decade to bring the system from a financial crisis to a point where financial sustainability is achievable, safety in the workplace has improved significantly, and legislative change through the Occupational Health and Safety (OHS) Act and the Workplace Health, Safety and Compensation (WHSCC) Act has increased accountability for workplace health and safety.

The public consultations brought together stakeholders to share their knowledge of the ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ŝŶ EĞǁĨŽƵŶĚůand and Labrador and throughout Canada.

The SRC has considered the importance of the collaboration among the workplace parties, employer groups, labour groups, the WHSCC, and the OHS Branch to achieve workplace health and safety; the primacy of prevention of workplace injury and occupational disease; and the value of communication in achieving common goals.

The SRC conducted its consultations and deliberations based upon the key themes identified by the WHSCC and the prime stakeholders ʹ the Newfoundland and Labrador ŵƉůŽLJĞƌƐ͛ ŽƵŶĐŝů (NLEC) and the Newfoundland and Labrador Federation of Labour (NLFL):

Maximum Compensable Assessable Earnings (MCAE)

Financial Sustainability

Labour Market Re-­‐entry

Medical Management

Occupational Disease

Prevention (Role of Stakeholders).

The consultation process also identified other issues affecting tŚĞ ǁŽƌŬĞƌƐ͛ compensation system. These included the need to focus on early and safe return to work, the importance of efficient internal and external review processes, and the value of effective, transparent governance. The SRC carried out additional research to assess the concerns and the impact of the recommendations made by participants in the consultation process and to identify new approaches to ŝŵƉƌŽǀĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system.

Executive Summary The key directions underpinning ƚŚĞ ^Z ͛Ɛ ƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐ ĂƌĞ͗

Prevention Improve training and workplace health and safety through the implementation of additional training certification standards Engage safety sector councils more broadly in prevention Increase collaboration between the WHSCC and the OHS Branch Improve the effectiveness of the OHS Committee Program

Claims management Increase education and awareness of the use of disability management guidelines Increase education and awareness of the initiatives to prevent occupational disease in the workplace

Early and safe return to work Increase awareness and education of the ESRTW program with the objective of increasing planning and collaboration between employers and workers in the ESRTW program

Labour Market Re-­‐entry Ensure the LMR program provides information about regionally relevant occupational classifications to workers Improve key performance indicators for the LMR program

Internal and External Review Implement a mechanism to provide a forum for the WHSCC and the WHSCRD to discuss matters of mutual concern while respecting their arms-­‐length relationship

Financial Sustainability Enhance the approach to achieving financial sustainability by taking a balanced, long term planned approach to reducing assessment rates and increasing ǁŽƌŬĞƌƐ͛ ďĞŶĞĨŝƚƐ

Governance Enhance the statutory review process

/ŵƉůĞŵĞŶƚĂƚŝŽŶ ŽĨ ƚŚĞ ^Z ͛Ɛ ƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐ ǁŝůů ĨĂĐŝůŝƚĂƚĞ the continued improvement of the workplace health, safety, and compensation system in Newfoundland and Labrador.

Executive Summary In a separate but complementary process, a thorough legal review was conducted to evaluate the WHSC Act and to identify areas where the Act should be amended to ƌĞĨůĞĐƚ ďĞƐƚ ƉƌĂĐƚŝĐĞ ŝŶ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ůĞŐŝƐůĂtion.

The SRC is confident its report provides a blueprint for ensuring the wŽƌŬĞƌƐ͛ compensation system is proactive and prevention-­‐focused, driven by stakeholder collaboration and partnership to improve workplace health and safety and financial sustainability.

Safe. Accountable. Sustainable.

Table of Contents

VOLUME ONE: Working Together ʹ Safe Accountable Sustainable The Report of the 2013 Statutory Review Committee

Acknowledgements

PART ONE: REPORT OF THE 2013 STATUTORY REVIEW COMMITTEE

I. Introduction

II. Prevention ʹ Education and Training 2.1 Introduction 2.2 Education and Training for Youth and New Graduates 2.3 Affordability and Accessibility 2.4 Training Certification Standards 2.5 Safety Sector Councils

III. Prevention ʹ OHS and WHSCC 3.1 Introduction 3.2 Organizational Structure of the OHS Branch 3.3 Collaboration and Coordination Between the WHSCC and the OHS Branch 3.4 Occupational Health and Safety Committees 3.4.1 Monitoring Occupational Health and Safety Committees 3.4.2 OHS Committee Program

IV. Client Management 4.1 Introduction 4.2 Client Service and Communications 4.3 Consultants 4.4 Privacy and Confidentiality 4.4.1 Compliance with the Personal Health Information Act 4.4.2 Video Surveillance 4.5 Disputed Claims

V. Medical Management 5.1 Introduction 5.2 Use of Guidelines 5.3 Independent Medical Examinations (IME)

VI. Occupational Disease 6.1 Introduction

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1

3 3 4 5 6 7

9 9 9 12 13 15 16

18 18 18 20 20 21 22 23

25 25 25 27

29 29

Table of Contents 6.2 Occupational Disease ʹ Claims Adjudication 6.3 Occupational Medicine Clinics 6.4 Presumptive Clauses 6.5 Presumptive Clause for Career Firefighters 6.6 Prevention

VII. Early and Safe Return To Work (ESRTW) 7.1 Introduction 7.2 Work to Recover (Early and Safe Return to Work) 7.3 Functional Abilities Information ϳ͘ϰ tŽƌŬĞƌƐ͛ WĂƌƚŝĐŝƉĂƚŝŽŶ ŝn ESRTW Plans 7.5 Support For Employers to Implement the ESRTW Program 7.6 Employment Obligations of Pre-­‐injury Employers 7.7 Reporting Outcomes of the ESRTW Program

VIII. Labour Market Re-­‐Entry (LMR) 8.1 Introduction 8.2 Occupations Identified in the LMR Assessment 8.3 Training 8.4 LMR Outcomes 8.5 Legislative Requirement to Accommodate Injured Workers 8.6 Employment Opportunities

IX. Internal Review 9.1 Introduction 9.2 Lengthy Review Processes 9.3 Internal Review Process

X. External Review 10.1 Introduction 10.2 Timeline/Schedule for External Review 10.3 Representation 10.4 Reconsideration 10.5 Interface Between Internal and External Review

XI. Financial Sustainability 11.1 Introduction 11.2 Employer Assessment Rates 11.2.1 Injury Fund 11.2.2 Assessment Rates 11.3 Benefits 11.3.1 Maximum Compensable Average Earnings (MCAE)

30 32 33 34 36

39 39 39 41 42 43 44 46

48 48 49 49 50 51 51

53 53 53 54

56 56 56 58 59 60

62 63 64 64 65 65

Table of Contents 11.3.2 Income Replacement Rate (IRR) 11.4 PRIME ϭϭ͘ϱ &ŝƐŚ ,ĂƌǀĞƐƚĞƌƐ͛ tŽƌŬĞƌƐ ŽŵƉĞŶƐĂƚŝŽŶ ƐƐĞƐƐŵĞŶƚƐ 11.6 Self-­‐Insured Employers 11.7 IRR for ƚŚĞ ^ƚ͘ :ŽŚŶ͛Ɛ Fire Fighters and the Royal Newfoundland Constabulary Association 11.8 Pension Replacement Benefits 11.9 Minimum Compensation 11.10 Top-­‐Up Provisions 11.11 Compensation for Seasonal Workers

XII. Governance 12.1 Introduction

XIII. Summary of Recommendations

PART TWO: THE 2013 SRC RESPONSE TO THE LEGAL REVIEW OF THE WHSC ACT

I. Introduction II. Housekeeping III. Parking Lot IV. Summary of Recommendations Addendum #1 ʹ WHSCRD Addendum #2 ʹ Housekeeping Amendment: Section 74.1(1.1)

VOLUME TWO: Working Together Safe Accountable Sustainable ʹ Appendices

Appendix A: A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11) Appendix B: Statutory Review Process Methodology Appendix C: List of Presenters Appendix D: SRC Discussion Paper

66 68 69 71 71 73 74 74 74

77 77

80

88 91 102 107 124 128

Acknowledgements

The Statutory Review Committee acknowledges the contributions of the many workers, employers, labour representatives, community advocates and other stakeholders who made the effort to participate in the public consultations. The SRC extends a sincere thank you for the views and opinions expressed by these individuals and organizations.

The SRC has reviewed and considered all of the submissions and presentations in its deliberations.

The SRC extends it appreciation to Mabel Macpherson, Executive Assistant; Martha Muzychka, Praxis Communications; and Theresa Rahal, Strategic Directions Inc.

The SRC also wishes to acknowledge Laurel Courtenay, LLB ʹ Counsel, Worksafe BC and Douglas Mah, LLB, QC ʹ Secretary and General Counsel of the WCB-­‐Alberta, the authors of A Legal Review of the Workplace Health Safety and Compensation Act (RSNL 1990 Chapter W-­‐11.

For their assistance with the provision of information throughout the review process, the SRC thanks the management and staff of:

The Workplace Health, Safety and Compensation Commission (WHSCC) The Occupational Health and Safety Branch (OHS), Service NL The Workplace Health, Safety and Compensation Review Division (WHSCRD).

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PART ONE

The Report of the 2013 Statutory Review Committee

Workplace Health, Safety and Compensation 2013 Statutory Review Committee

I.

Introduction

The statutory review process offers opportunities for stakeholders to provide feedback and to identify ways to improve ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘ /Ŷ this report, the Statutory Review Committee (SRC) has ĐŽŶƐŝĚĞƌĞĚ ŚŽǁ ďĞƐƚ ƚŽ ŝŵƉƌŽǀĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system in Newfoundland and Labrador while balancing the needs and priorities of key stakeholders ʹ workers, employers, and the Workplace Health, Safety and Compensation Commission (WHSCC).

In this 100th anniversary year of the publication of the Meredith principles on which the workĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ǁĂƐ ďƵŝůƚ ŝŶ ĂŶĂĚĂ͕ ŝƚ ǁĂƐ ŝŵƉŽƌƚĂŶƚ ĨŽƌ ƚŚĞ ^Z ƚŽ reflect these principles in its deliberations: 1. No-­‐fault compensation: Workplace injuries are compensated regardless of fault. The worker and employer waive the right to sue. There is no argument over responsibility or liability for an injury. Fault becomes irrelevant, and providing compensation becomes the focus.

2. Collective liability: All employers share the total cost of the compensation system. All employers contribute to a common fund. Financial liability becomes their collective responsibility.

3. Security of payment: A fund is established to guarantee that compensation monies will be available. Injured workers are assured of prompt compensation and future benefits.

4. Exclusive jurisdiction: All compensation claims are directed solely to the compensation board. The Board is the decision-­‐maker and final authority for all claims. Nor is the Board bound by legal precedent; it has the power and authority to judge each case on its individual merits.

5. Independent board: The governing board is both autonomous and non-­‐ political. The Board is financially independent of government or any special interest group. The administration of the system is focused on the needs of its employer and labour clients, providing service with efficiency and impartiality.

The SRC has been mindful of the work carried out in the past decade to bring the system from a financial crisis to a point where financial sustainability is achievable, safety in the workplace has improved significantly, and legislative change through the Occupational Health and Safety (OHS) Act and the Workplace Health, Safety and Compensation (WHSC) Act has increased accountability for workplace health and safety.

The public consultations brought together stakeholders to share their knowledge of the ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ŝŶ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂĚŽƌ ĂŶĚ ƚŚƌŽƵŐŚŽƵƚ ĂŶĂĚĂ.

The SRC has considered the importance of collaboration among the workplace parties,

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I.

Introduction

employer groups, labour groups, the WHSCC, and the OHS Branch to achieve workplace health and safety; the primacy of prevention of workplace injury and occupational disease; and the value of communication in achieving common goals.

The SRC conducted its consultations and deliberations using the key themes identified by the WHSCC and the prime stakeholders ʹ the Newfoundland and Labrador ŵƉůŽLJĞƌƐ͛ ŽƵŶĐŝů ;E> Ϳ͕ ĂŶĚ ƚŚĞ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂdor Federation of Labour (NLFL):

Maximum compensable assessable earnings (MCAE)

Financial sustainability

Labour market re-­‐entry

Medical management

Occupational disease

Prevention (Role of Stakeholders).

The consultation process also identified ŽƚŚĞƌ ŝƐƐƵĞƐ ĂĨĨĞĐƚŝŶŐ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system. These included the need to focus on early and safe return to work, the importance of efficient internal and external review processes and the value of effective, transparent governance. The SRC carried out additional research to assess the concerns and the impact of the recommendations made by participants during the consultation process and to identify new approaches to ŝŵƉƌŽǀĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system.

Volume One of the SRC report contains two parts, both focusing on improvements to the workers͛ compensation system to address concerns raised by the stakeholders. Part One arises from the consultation process and Part Two arises from a thorough legal review conducted to evaluate the existing legislation and to identify areas where the WHSC Act could be amended to ƌĞĨůĞĐƚ ďĞƐƚ ƉƌĂĐƚŝĐĞ ŝŶ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ legislation. Volume Two: Appendix A contains the report, A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11) as submitted by the technical advisors. dŚĞ ^Z ͛Ɛ ƌĞƐƉŽŶƐe to the Legal Review (short title) is presented in Part Two of this report.

The SRC is confident that its report provides a blueprint for ensuring the wŽƌŬĞƌƐ͛ compensation system is proactive and prevention-­‐focused, driven by stakeholder collaboration and partnership to improve workplace health and safety and financial sustainability.

Safe. Accountable. Sustainable.

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II. Prevention ʹ Education and Training 2.1 INTRODUCTION

Since 2000, the lost time injury rate in Newfoundland and Labrador has dropped from 3.3 to 1.6 per 100 workers in 2012. Over the same period, the percentage of injury free employers has increased from 84.3% to 91.8%. Significant factors contributing to the reduction of the lost time injury rate have been the increased focus on prevention and education by workers, employers, employer groups, labour groups, the WHSCC, and the OHS Branch; and legislative changes made to the OHS Act.

Through its Prevention Services Division, the WHSCC raises awareness of prevention and offers prevention services to employers and workers to promote improved health and safety practices in the workplace leading to the reduction of the incidence of workplace injuries. Part of the ŝǀŝƐŝŽŶ͛Ɛ ƌĞƐƉŽŶƐŝďŝůŝƚLJ ŝƐ the design, development, delivery, monitoring, and evaluation of workplace health and safety education and accident prevention initiatives along with implementation and monitoring of safety training certification standards.

In 2012, the WHSCC released its prevention strategy for the province, Engagement to Action: A Prevention Strategy for Newfoundland and Labrador 2012-­‐2014,1 which it developed in collaboration with the OHS Branch ĂŶĚ ƚŚĞ t,^ ͛Ɛ ƉĂƌƚŶĞƌƐ ĂŶĚ stakeholders, including the NLEC, the NLFL, the Newfoundland and Labrador Construction Safety Association (NLCSA) and the Forestry Safety Association of Newfoundland and Labrador (FSA-­‐NL).

Consultation Summary

The SRC received a number of submissions supporting more prevention-­‐focused education and training. Employers, labour groups, and injured workers supported increased education about prevention to reduce injuries and to foster positive approaches to safety in workplaces. The key concerns raised by stakeholders included the need to:

Increase education and training for young workers

Improve accessibility and affordability of required OHS Committee education and training

Identify new approaches for prevention, education and promotion

Emphasize training certification standards

Promote the role and development of safety sector councils.

1

WHSCC, Engagement to Action: A Prevention Strategy for Newfoundland and Labrador 2012-­‐2014, (2012), ^ƚ͘ :ŽŚŶ͛Ɛ͘

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II. Prevention ʹ Education and Training

2.2 EDUCATION AND TRAINING FOR YOUTH AND NEW GRADUATES

Education and training play an important role in fostering a safety culture in the workplace, the adoption of safe work practices, and the heightening of awareness regarding hazards and risks. Training sessions ensure workers are up-­‐to-­‐date with safety requirements and proper use of equipment. The knowledge and use of workĞƌƐ͛ ƌŝŐŚƚƐ regarding refusal to work in unsafe or hazardous environments also reduces the risk for harm or injury in the workplace.

Consultation

An employer recommended that prevention education be integrated in the high school curriculum and another stakeholder recommended occupational health and safety training be integrated in trades and apprenticeship programs.

Assessment

Workplace safety education at the high school and post-­‐secondary levels plays a critical role in developing a safety culture and protecting and preparing youth, a vulnerable group of workers, to participate in the workforce in a safe manner.

Safety education is included in the high school curriculum; for example, safety practices are taught during shop classes. As well, the WHSCC has engaged high school students through an educational game show with good results. The WHSCC has recently sponsored a social marketing campaign targeting youth and young workers.

The 2001 and 2006 Statutory Review reports emphasized the need to educate young workers about workplace safety and each SRC recommended making Workplace Safety 3220 a mandatory part of the high school curriculum. The WHSCC continues to work with the Department of Education to explore provincial designation for the course and recently completed a review of the draft curriculum and guide.

Occupational health and safety awareness is important for all students in post-­‐ secondary programs. For OHS programs in particular, the curriculum should include the new OHS standards.

The SRC supports both these initiatives as prevention education and training have a positive effect on decreasing the incidence of workplace injuries.

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II. Prevention ʹ Education and Training 2.3 AFFORDABILITY AND ACCESSIBILITY

Consultation

Several stakeholders, including employers, workers, labour groups, and safety sector council representatives recommended making the required OHS Committee training programs more accessible in terms of reducing costs and travel time. Suggestions included integrating OHS committee training and other components related to specific industries in post-­‐secondary apprenticeship-­‐based training programs, using on-­‐line courses, and offering more local, on-­‐site offerings closer to where workers are located.

Assessment

The SRC identified several areas where new training approaches could provide significant benefit to employers, workers and other stakeholders in this province. As well, in light of issues raised by stakeholders, the SRC supports the development of training in:

Creating effective early and safe return to work programs2

Developing workplace hazard and risk assessment skills and programs

Understanding the key components of a workplace accident investigation.

Given advances in technology, other delivery models such as distance education and web-­‐based seminars may be more cost effective. The SRC also considered the benefits of delivering more training through safety sector councils to achieve efficiencies and the benefits of developing a model for general prevention training that could be delivered across all sectors.

Recommendations

1. That the WHSCC a) adopt a broader approach to delivering education and training for prevention including using technology, b) encourage awareness of occupational health and safety in post-­‐secondary programs, and c) integrate Occupational Health and Safety (OHS) standards in all OHS training programs.

2.

That the WHSCC collaborate with the Safety Sector Councils to identify opportunities to develop and deliver sector-­‐based safety training.

The SRC also heard from stakeholders that increasing stakeholder engagement in, and ownership of, prevention as a shared responsibility between employers, employees and 2

The SRC discusses Early and Safe Return to Work plans in Section VII.

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II. Prevention ʹ Education and Training the WHSCC was critical. Presenters recommended various approaches to engaging stakeholders in all aspects of prevention.

The SRC discussed potential initiatives to provide opportunities for knowledge sharing, including highlighting emerging trends and new advances in prevention and safety. This may be accomplished through an annual series of learning symposia that is accessible to all workers and employers throughout the province. Engaging youth, CEO Safety Charter members, and safety sector councils in this initiative would advance workplace health and safety in the province.

Recommendation

3. That the WHSCC organize an annual series of learning symposia to provide an opportunity for knowledge sharing, to recognize the innovative approaches implemented by employers and workers, and to promote champions of workplace health and safety in the province.

2.4 TRAINING CERTIFICATION STANDARDS

Training certification standards identify the safe work competencies in which workers are required to be certified under the OHS Act. The WHSCC develops standards and approves training providers and trainers to deliver training in accordance with these standards, thus ensuring consistency in competencies and the quality of training provided to workers.

Consultation

An employer and a worker emphasized the importance of training certification standards and recertification.

Assessment

Using a collaborative approach, the OHS Branch and the WHSCC establish training certification standards. The OHS Branch has responsibility for legislating and enforcing standards through the regulations of the OHS Act. The WHSCC͛Ɛ WƌĞǀĞŶƚŝŽŶ ŝǀŝƐŝŽŶ administers the standards through approval of training curriculum, training providers, and trainers.

At present, there are eight training certification standards: Confined Space Entry, Diving, Fall Protection, First Aid, Mines Rescue, OHS Committees / WHS Representatives / Delegates, Power Line Hazards, and Traffic Control Persons. The OHS Branch and the

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II. Prevention ʹ Education and Training WHSCC have identified new standards to implement; one such example is the development of a supervisory training certification standard. This standard should include competency requirements for hazard recognition, evaluation and control.

Both the OHS Branch and the WHSCC indicated that training certification standards have had a significant impact on workplace safety. For example, in its Annual Performance Report 2012, the WHSCC reported a decline in the injury rate associated with fall from ŚĞŝŐŚƚƐ ĂĨƚĞƌ ƚŚĞ ŝŶƚƌŽĚƵĐƚŝŽŶ ŽĨ ƚŚĞ ĨĂůů ƉƌŽƚĞĐƚŝŽŶ ƚƌĂŝŶŝŶŐ ƐƚĂŶĚĂƌĚ͗ ͞ƚŚĞ ŝŶũƵƌLJ ƌĂƚĞ declined from 9.4 injuries per 10,000 in 2011 to 8.3 injuries per 10,000 in 2012 as of DĂƌĐŚ ϭϭ͕ ϮϬϭϯ͘͟3

The SRC concludes that the continued development and implementation of training certification standards is extremely important.

Recommendation

4. That the WHSCC and the OHS Branch develop a supervisory training certification standard including competency requirements for hazard recognition, evaluation and control.

2.5 SAFETY SECTOR COUNCILS

The WHSCC supports safety sector councils as a means to bring workers and employers together to promote occupational health and safety within specific industries. The WHSCC may provide funding to a safety sector council to develop a business plan which outlines its goals and objectives, including how it will achieve financial sustainability.

There are currently safety sector councils established in the construction, forestry, fishery, and municipalities sectors. These councils are at various stages of development.

For example, the NLCSA is a well-­‐established council with many years͛ experience. The Municipal Safety Council NL (MSCNL) is a new council established in 2013.

Consultation

During the public consultations, representatives of three sector councils spoke to the positive benefits such councils bring to industries regarding prevention, education and training, as well as, the identification and promotion of best practices. Two labour groups recommended the WHSCC continue to promote sector councils. The success of safety sector councils is evident in the collaborative efforts among councils to share information and to support the development of best practices.

3

WHSCC, Annual Performance Report 2012 (2013) 7.

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II. Prevention ʹ Education and Training Assessment

The SRC believes safety sector councils can play an effective role in creating awareness and improving competency in injury prevention, and in fostering employer accountability for safety standards and practices in their industries.

Through consultation with stakeholders, the SRC has identified a number of opportunities to enhance the engagement of safety sector councils in prevention:

Providing sector/industry prevention training

Identifying occupational disease risks and prevention methods

Assisting or engaging OHS Committees in sector-­‐focused activities

Organizing safety forums and workshops

Conducting site visits

Encouraging collaboration among the sectors

Becoming involved in and encouraging early and safe return to work and promoting education and awareness of the ESRTW program (see Section VII: Early and Safe Return to Work).

Recommendation

5. That the WHSCC continue to promote the development of safety sector councils as an important component of prevention and to encourage collaboration among safety sector councils to explore increased strategic mandates for prevention and safety in the workplace.

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III. Prevention ʹ OHS Branch and WHSCC 3.1 INTRODUCTION

The important roles of prevention and enforcement in providing safe and healthy workplaces for workers are widely recognized.

This section addresses the collaborative effort between the WHSCC and the OHS Branch given their complementary mandates of prevention and enforcement, respectively. The SRC considered alternate organizational structures that were proposed to enhance collaboration between the WHSCC and the OHS Branch, ways to improve and monitor the effectiveness of the OHS Committee model, and ways to improve the OHS Committee Program.

Consultation Summary

The SRC received a number of submissions from stakeholders who raised concerns about the need to:

Address the organizational structure of the OHS Branch

Enhance collaboration and coordination between the WHSCC and the OHS Branch

Increase the effectiveness of the Occupational Health and Safety Committee Program.

3.2 ORGANIZATIONAL STRUCTURE OF THE OHS BRANCH

In 1998, the mandate for health and safety education and accident and injury prevention moved to the WHSCC from the Department of Environment and Labour, while the mandate for enforcement remained with the Department.4 Section 19(3) of the OHS Act and section 20.3 of the WHSC Act set out the requirement for cooperation between the OHS Branch and the WHSCC.

The 2001 and 2006 Statutory Review Committees identified the need for greater collaboration between the WHSCC and the OHS Branch as an issue and both made recommendations to address it. However, while the 2001 Task Force agreed with the continued separation, it provided recommendations for improved coordination of activities, many of which were implemented.5 The 2006 SRC recommended that the

4

5

dĂƐŬ &ŽƌĐĞ ZĞƉŽƌƚ ŽŶ ƚŚĞ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ^LJƐƚĞŵ͕ Changing the Mindset (February 16, 2001) 11. dĂƐŬ &ŽƌĐĞ ZĞƉŽƌƚ ŽŶ ƚŚĞ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ^LJƐƚĞŵ͕ Changing the Mindset (February 16, 2001) 11 ʹ 12.

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III. Prevention ʹ OHS Branch and WHSCC provincial government merge the OHS Branch with the WHSCC, a recommendation that government did not accept.6

Consultation

Various stakeholders raised concerns about the status of the OHS Branch during the consultation phase of this statutory review. A number of stakeholders including several labour groups supported maintaining the OHS Branch separate from the WHSCC. Reasons offered for not combining the two entities included:

It would be detrimental to enforcement

It has not been demonstrated that it would be helpful to injured workers

The entities have different mandates.

An employer group recommended that legislative responsibility for enforcement of occupational health and safety be given to the WHSCC for reasons of efficiency and prudent spending.

Assessment

While the OHS Branch and the WHSCC share the goal of achieving safe and healthy workplaces in the province, their mandates and approaches differ. The OHS Branch has the authority to enforce the OHS Act and its regulations and the WHSCC has the authority to educate and raise awareness about occupational health and safety. The mandates are complementary and each contributes to improved workplace safety and health.

The SRC consulted with the OHS Branch and the WHSCC regarding how they work together to achieve their complementary mandates, what strategic areas are targeted for improvement, and what initiatives are planned in prevention and enforcement, among other things.

The WHSCC and the OHS Branch reported they collaborate in areas such as jointly developing a prevention strategy with other stakeholders, implementing a Memorandum of Understanding for information sharing, participating on safety sector councils, preparing hazard alerts, developing training standards and certification, and participating in joint technical advisory committees. However, based on ƚŚĞ ^Z ͛Ɛ observations and assessment of the information provided by both groups, the SRC concludes there are many opportunities to increase collaboration between the WHSCC 6

Finding the Balance: The Report of the 2006 Statutory Review Committee on The Workplace Health, Safety and Compensation Act (May 31, 2006) 32.

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III. Prevention ʹ OHS Branch and WHSCC and the OHS Branch, which will lead to significant improvement in occupational health and safety in the province.

Taking into considerĂƚŝŽŶ ƚŚĞ ƉƌĞǀŝŽƵƐ ^ƚĂƚƵƚŽƌLJ ZĞǀŝĞǁ ŽŵŵŝƚƚĞĞƐ͛ ƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐ and the input received during the stakeholder consultations in 2013, the SRC considered the potential of two organizational models to facilitate increased collaboration between the WHSCC and the OHS Branch:

Combine the OHS Branch with the WHSCC

Establish the OHS Branch as a separate agency of government.

According to the Association of Workers͛ Compensation Boards of Canada (AWCBC), a variety of organizational models are used across Canada. In Alberta, Ontario and Saskatchewan, the government is responsible for enforcement and prevention. In Manitoba, the government is responsible for enforcement and prevention and also shares responsibility for prevention with the ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ďŽĂƌĚ. In New Brunswick, British Columbia, Prince Edward Island, Quebec, Yukon and NWT, the ǁŽƌŬĞƌƐ͛ ĐŽŵƉensation boards are responsible for enforcement and prevention. In Newfoundland and Labrador and Nova Scotia, the provincial governments are ƌĞƐƉŽŶƐŝďůĞ ĨŽƌ ĞŶĨŽƌĐĞŵĞŶƚ ĂŶĚ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ďŽĂƌĚs are responsible for prevention.

While combining the OHS Branch with the WHSCC is an option, the SRC believes it is not necessary to increase collaboration. It would be a challenging undertaking from an organizational perspective and the benefits to be derived from it are unclear. Further, the SRC believes that combining the OHS Branch with the WHSCC will distract both organizations from their mandates as they adapt to working as one entity. As identified in section 3.3 that follows, the SRC has identified key areas for increased collaboration between the separate organizations.

Establishing the OHS Branch as a separate agency of government is another model the SRC considered. The Government Purchasing Agency and the Labour Relations Agency are examples of this model. As a separate agency, the OHS Branch would continue to administer the OHS Act and its regulations and its funding would continue ͞to a ŵĂdžŝŵƵŵ ŽĨ ϱй ŽĨ ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ ƚŽƚĂů ĂƐƐĞƐƐŵĞŶƚ ĂŶĚ ŝŶǀĞƐƚŵĞŶƚ ŝŶĐŽŵĞ ŝŶ ĞĂĐŚ calendar year͟ as required by the Section 20.4 of the WHSC Act.

Some of the benefits of the OHS Branch being a separate agency of government include:

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A higher profile for occupational health and safety enforcement in the province Ăƚ Ă ƉŽŝŶƚ ŝŶ ƚŚĞ ƉƌŽǀŝŶĐĞ͛Ɛ ŚŝƐƚŽƌLJ ǁŚĞŶ Ă ŶƵŵďĞƌ ŽĨ ŵĞŐĂ ƉƌŽũĞĐƚƐ ĂƌĞ simultaneously being planned or executed

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III. Prevention ʹ OHS Branch and WHSCC

An independent branch of government may be preferable for enforcement activity at provincial government workplaces

An opportunity for the WHSCC and the OHS Branch to deal with each other as peer agencies to address the areas of responsibility that overlap between prevention and enforcement that would benefit from increased collaboration

An opportunity to place greater emphasis on establishing a client service organization.

The current structure continues to create uncertainty for both the OHS Branch and the WHSCC, and this may affect the further development of a collaborative working relationship.

More research and analysis is required to identify and evaluate the benefits, as well as the disadvantages, of establishing the OHS Branch as an agency of government.

Recommendations

6. That the OHS Branch remain separate from the WHSCC.

7. That the provincial government determine the potential for the OHS Branch to be an independent agency as a branch of the public service under the management and control of a Chief Operating Officer, similar to the Government Purchasing Agency and the Labour Relations Agency.

3.3 COLLABORATION AND COORDINATION BETWEEN THE WHSCC AND THE OHS BRANCH

A coordinated and planned approach to the WHSCC͛Ɛ and the OHS Branch͛Ɛ respective roles in prevention and enforcement and the overlap between the two would achieve greater results. It is essential that the WHSCC and the OHS Branch develop common goals and initiatives to provide improved client service to stakeholders. This would be a dynamic process of jointly planning and working together to:

Target and prioritize workplace enforcement and prevention activity based on the incidence of injuries and the risk of injury

Identify complementary approaches to ensure the effective coordination of prevention and enforcement strategies in the workplace

Evaluate the t,^ ͛s Prevention Service OHS Audit Program

Identify areas for improving information sharing.

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III. Prevention ʹ OHS Branch and WHSCC

The SRC concludes that increased collaboration between the WHSCC and the OHS Branch would contribute to improved workplace health and safety in the province.

Recommendations

8. That the Chief Executive Officer of the WHSCC and the Assistant Deputy Minister responsible for the OHS Branch collaborate to develop a framework ĨŽƌ ĞĨĨŝĐŝĞŶƚ ƵƐĞ ŽĨ ďŽƚŚ ŽƌŐĂŶŝnjĂƚŝŽŶƐ͛ ƌĞƐŽƵƌĐĞƐ͕ ŝŶ ĐŽŽƌĚŝŶĂƚŝŶŐ Ă ƚĂƌŐĞƚĞĚ approach to high risk, high priority workplaces resulting in improved occupational health and safety outcomes and addressing service delivery issues common to both organizations.

9. That the WHSCC and the OHS Branch establish a committee to address joint initiatives ƚĂƌŐĞƚŝŶŐ ŚŝŐŚ ƌŝƐŬ͕ ŚŝŐŚ ƉƌŝŽƌŝƚLJ ǁŽƌŬƉůĂĐĞƐ ĂŶĚ ƚŚĂƚ ƚŚĞ t,^ ͛Ɛ Chief Executive Officer and the Assistant Deputy Minister responsible for the OHS Branch should report on these initiatives to the WHSCC͛Ɛ Board of Directors and the Ministers responsible semi-­‐annually.

10. That an evaluation of the effectiveness of the OHS Branch and the t,^ ͛Ɛ collaboration be conducted by an independent consultant within two years of establishing the framework and the committee identified in recommendations 8 and 9.

3.4 OCCUPATIONAL HEALTH AND SAFETY COMMITTEES

Section 37 of the OHS Act requires an employer to establish an occupational health and safety committee at workplaces with 10 or more workers. The OHS Committee is an advisory group comprised of worker and employer representatives that plays a critical role in workplace health and safety.

The WHSCC describes the OHS Committee͛s activities as identifying and evaluating occupational health and safety concerns, making recommendations for corrective action and promoting health and safety in the workplace. OHS Committees play a leading role in reducing workplace injuries and health issues.

In accordance with Section 40 of the OHS Act, OHS Committees are required to meet at least once every three months. Section 25 (2) of the OHS Regulations requires OHS Committees to submit the meeting minutes to the WHSCC. The WHSCC reports that WHSCC staff review the OHS Committee minutes. If any immediate dangers to life and health issues are identified, those are immediately referred to a Health and Safety Advisor or to the OHS Branch for follow-­‐up. In most cases, the WHSCC contacts the OHS

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III. Prevention ʹ OHS Branch and WHSCC Committee co-­‐chairs to discuss the resolution of safety issues, and may attend the next committee meeting. According to the WHSCC, the staff visit more than 80 committees each month.

In 2012, 52% of the 3,633 registered OHS Committees in workplaces in the province were considered active and 48% were considered delinquent in the submission of meeting minutes. The WHSCC͛Ɛ protocol for addressing delinquent minutes involves contacting the employer every 30 days up to 180 days delinquent, at which time the WHSCC notifies the OHS Branch. Of the 3,633 registered OHS Committees, 977 committees were referred to the OHS Branch.

Consultation

Several labour groups expressed the following concerns about the effectiveness of the OHS Committee model:

The delinquency rate of submission of meeting minutes to the WHSCC

The lack of a system at the OHS Branch to capture information on whether employers have the required OHS policies and programs in place

The number of government departments that did not have the required OHS programs in place by the end of 2010

The frustration of OHS Committee members because recommendations are not being implemented.

Some stakeholders suggested the OHS Committee program would be improved by revising the OHS Committee and WHS Representative training and including workplace inspections and incident investigation.

Other training needs identified by stakeholders included:

Awareness training for workers and employers on the Occupational Health and Safety Act and regulations and general tools on hazard recognition, evaluation, and controls

Mandatory health surveillance and hazard assessment training for all OHS Committee members and WHS representatives.

In addition to training for OHS Committees, a stakeholder identified the following ways to improve engagement of the OHS Committees by involving:

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OHS Committees in the prevention of occupational disease

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III. Prevention ʹ OHS Branch and WHSCC

Safety sector councils with OHS Committees as the councils are proving to be successful in bringing employers and workers together.

Assessment

3.4.1 Monitoring Occupational Health and Safety Committees

One of the key performance indicators used by the WHSCC to monitor the performance of OHS Committees is submission of the OHS Committee minutes every 90 days, reflecting the requirement of the OHS Act for the committees to meet at least once every three months. The SRC concludes that reporting OHS Committee minutes is an indicator of activity; it is not an indicator of the effectiveness of the committees.

Further, as noted by stakeholders, 48% of the 3,633 OHS Committees were delinquent in submitting minutes at the end of 2012.

While the SRC understands there are many factors contributing to this delinquency, such as seasonal operations, the SRC is concerned that the delinquency of submitting minutes may indicate a larger problem of waning interest in involvement in OHS Committees.

The SRC is encouraged by the following statistics provided by the WHSCC:

The number of OHS Committees registered has increased in 2012 from 3,122 to 3,633

More than 38,000 committee members and WHS Representatives in the province were trained by December 2012, including almost 3,000 trained in that year

The number of workplace inspections conducted by employers has increased significantly since 2007 (from 13,724 to 24,598) reflecting in part growth in the number of employers and also growth in the number of those reporting.

However, the SRC is concerned that the OHS Committee program has not achieved its full potential for improving occupational health and safety in the workplace.

Other areas of concern with regard to the OHS Committee program are:

Requiring an employer to have multiple OHS Committees when the employer has multiple workplaces in close proximity based on an interpretation of the legislative requirement for OHS Committees in workplaces where there are more than 10 workers

In some cases, the content of OHS Committee minutes is insufficient to alert the WHSCC and/or the OHS Branch that an intervention is necessary.

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III. Prevention ʹ OHS Branch and WHSCC

Monitoring OHS Committee minutes will encourage greater participation and validation ŽĨ ƚŚĞ K,^ ŽŵŵŝƚƚĞĞƐ͛ ĞĨĨŽƌƚƐ͘

Recommendations

11. That the WHSCC make the oversight and assessment of OHS Committee activity and minutes a priority. The WHSCC should monitor closely whether risks identified by the OHS Committee have been appropriately addressed in a timely manner by the employer and if not, intervene, or request that the OHS Branch intervene.

12. That the requirement for OHS Committees for an employer with multi-­‐site workplaces which are in close proximity with each other (e.g., in the same building or adjacent buildings) be practically applied so that the number of OHS Committees are not so numerous that they become ineffective and inefficient.

13. That the WHSCC and the OHS Branch ensure hazard recognition, evaluation and control are emphasized in the OHS Committee training certification standard.

3.4.2 OHS Committee Program

One of the topics the SRC discussed during its consultation sessions with the OHS Branch and the WHSCC was the effectiveness of the OHS Committee Program.

The WHSCC and the OHS Branch noted that OHS Committee members are engaged at the workplace in the OHS program development, workplace inspections, hazard assessments, and accident and incident investigations. The WHSCC and the OHS Branch indicated it would be helpful to provide additional training to OHS Committee members in the assessment of workplace hazards, and the identification and recommendation of appropriate controls.

The WHSCC and the OHS Branch informed the SRC that they have undertaken a joint initiative to conduct a review of the OHS Committee Program in consultation with the prime stakeholders. The review will assess the:

Effectiveness of OHS Committees and WHS Representatives/Designates in meeting their mandates as outlined in OHS legislation

Certification Training Standard and training curriculum for OHS Committee and WHS Representative

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III. Prevention ʹ OHS Branch and WHSCC

OHS Committee minutes report form and online reporting system

Educational publications with respect to the standard.

The review report will be submitted to the t,^ ͛Ɛ ŽĂƌĚ ŽĨ ŝƌĞĐƚŽƌƐ ŝŶ :ƵŶĞ ϮϬϭϰ͘

dĂŬŝŶŐ ŝŶƚŽ ĐŽŶƐŝĚĞƌĂƚŝŽŶ ƚŚĞ ĐŽŶĐĞƌŶƐ ĞdžƉƌĞƐƐĞĚ ďLJ ƐƚĂŬĞŚŽůĚĞƌƐ ĂŶĚ ƚŚĞ ^Z ͛Ɛ consultation sessions with the WHSCC and the OHS Branch, the SRC concludes it is necessary to re-­‐emphasize the requirements for, and importance of, OHS Committees in ŝŶƐƚŝůůŝŶŐ Ă ƐĂĨĞƚLJ ĐƵůƚƵƌĞ ŝŶ ƚŚĞ ǁŽƌŬƉůĂĐĞ ŝŶĐůƵĚŝŶŐ ƚŚĞ ĞŵƉůŽLJĞƌƐ͛ ƌĞƐƉŽŶƐŝďŝůŝƚLJ ĨŽƌ workplace health and safety and the role of the OHS Committee as an advisory committee to the employer. The SRC supports the joint review of the OHS Committee Program as described above.

Recommendation

14. That the review of the OHS Committee Program include the following: a) Develop a memorandum of understanding between the WHSCC and the OHS Branch with a clear definition of their roles and responsibilities, jointly and severally, in supporting OHS Committees. b) Implement appropriate refresher training for OHS Committee members. c) Revise the OHS Committee Minutes form in a manner which ensures that longstanding issues or those critical to the health and safety of workers in the workplace are flagged and can be appropriately monitored by the WHSCC and/or the OHS Branch. d) Identify opportunities and approaches to support the engagement of OHS Committees by providing health and safety information such as bulletins on hearing loss/noise on a regular basis to them. e) Identify key performance indicators that measure the effectiveness of OHS Committees and report them to the WHSCC͛^ Board of Directors within six months after receiving direction from the provincial government regarding this recommendation.

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IV. Claims Management

4.1 INTRODUCTION

Claims management focuses on the efficient and effective provision of services and benefits to injured workers throughout the province. In this province, the WHSCC provides injured workers with short term or long term benefits (health care and wage ůŽƐƐ ďĞŶĞĨŝƚƐͿ͕ Žƌ ŝŶ ƚŚĞ ĐĂƐĞ ŽĨ ĚĞĂƚŚ͕ ƐƵƌǀŝǀŽƌ ďĞŶĞĨŝƚƐ ƚŽ ƚŚĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ dependents.

The WHSCC uses a claims management model that focuses on early intervention, the collection of appropriate information, and proactive case management. The goal is to provide the benefits and care to which injured workers are entitled to ensure recovery.

Recovery may include health-­‐only benefits, or implementation of an early and safe return to work plan where appropriate.

Consultation Summary

During the consultation phase, some stakeholders raised concerns relating to:

Client service communications

Independent medical examinations

The use of external consultants to manage claims and employer accounts

Protection of personal information

Video surveillance

Disputed claims.

4.2 CLIENT SERVICE AND COMMUNICATIONS

Consultation

Some injured workers raised concerns related to file and document management, case note documentation, and implementation of WHSCC policies. As well, some injured workers and their family members reported issues with navigating the system, or in becoming properly informed about policies or benefits. Some injured workers reported concerns with how requests were dealt with in terms of service extension, and approvals for tools and assistive devices.

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IV. Claims Management Assessment

The SRC reviewed the injured worker survey reports for additional information and insights to the concerns identified by injured workers during the consultations.

In the 2012 Early and Safe Return-­‐to-­‐Work Program Survey, it was reported that the amount of benefits available to the injured workers was the key factor influencing levels of dissatisfaction with the WHSCC: (Most agreed that) the hours of operation are appropriate, that staff members provided them with a clear understanding of the benefits, that staff members are trustworthy, and written communications are clear and ĞĂƐLJ ƚŽ ƵŶĚĞƌƐƚĂŶĚ͘ ͙ /Ŷ ŐĞŶĞƌĂů͕ ŝŶũƵƌĞĚ ǁŽƌŬĞƌƐ ĂƌĞ ƐĂƚŝƐĨŝĞĚ ǁŝƚŚ ƚŚĞ overall outcome of their claim, although 16 percent of injured workers express dissatisfaction. Among the reasons offered for this dissatisfaction are the amount of money provided through their claim, the fact that they were turned down or cut off, the attitude of WHSCC staff, and the way the claim was handled.7

Notwithstanding the fact that lower financial benefits influence satisfaction levels, the 2012 Injured Workers Survey also found that more communication was necessary overall: Findings indicate that while injured worker clients are modestly satisfied with the communications they receive from the Commission, selected areas continue to present opportunities for improvement. In particular, there is room for improvement in the written communications provided by the WHSCC with regards to the clarity of decisions, and in interactions serving ƚŽ ĞdžƉůĂŝŶ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƉƌŽĐĞƐƐ ƚŽ ĐůŝĞŶƚƐ͘ /ƚ ŵĂLJ ďĞ ďĞŶĞĨŝĐŝĂů for the Commission to review its communications process with respect to, for example, letters concerning the compensation process.8

The SRC has learned that research is underway at the WHSCC on how to enhance communications that best meet the needs of clients. The SRC supports this approach and is satisfied that improving communications continues to be a priority for staff and management.

7

Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey (WHSCC, 2013) 3.

8 Corporate Research Associates Inc, 2012 Injured Workers Survey (WHSCC, 2013) 6.

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IV. Claims Management Recommendation

15. That the WHSCC emphasize face-­‐to-­‐face or telephone communication as the first approach for providing information to injured workers with the use of electronic (web-­‐based) and printed material as a supplement.

4.3 CONSULTANTS

Consultants provide services to employers such as filing reports to the WHSCC, providing advice on claims management, facilitating PRIME rebates, developing early and safe return to work plans, or representing the emƉůŽLJĞƌ͛Ɛ ŝŶƚĞƌĞƐƚƐ ŝŶ ƚŚĞ ĐůĂŝŵƐ process.

Consultation

Some injured workers and a political advocate recommended that the use of consultants be prohibited or regulated. Some injured workers, labour groups, and advocates said introducing a third party to the process made it challenging to maintain a positive relationship with the pre-­‐injury employer. Some employers reported that consultants helped them manage their claims more effectively.

Assessment

ĐĐŽƌĚŝŶŐ ƚŽ ƚŚĞ ƐƐŽĐŝĂƚŝŽŶ ŽĨ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂtion Boards of Canada (AWCBC), consultants are bound by the same policies and requirements governing confidentiality and privacy as the employers they represent.

The SRC concludes the use of consultants is a right of both employers and workers who wish to avail of their services.

4.4 PRIVACY AND CONFIDENTIALITY

WƌŝǀĂĐLJ ĂŶĚ ĐŽŶĨŝĚĞŶƚŝĂůŝƚLJ ĂƌĞ ŬĞLJ ĐŽŶĐĞƌŶƐ ŝŶ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘ Through the statutory review process, stakeholders identified several issues related to collecting, keeping, protecting and sharing personal health information. These were:

Compliance with the Personal Health Information Act

The use of video surveillance.

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IV. Claims Management 4.4.1 Compliance with the Personal Health Information Act

The Personal Health Information Act (PHIA) governs the collection, use and disclosure of personal health information. The aim of PHIA is to keep personal health information confidential and secure, while allowing for the effective delivery of health and community services. PHIA applies to all organizations and individuals involved in providing health and community services, administration, and research in the public, private, health, and education sectors. Everyone who works with personal health information, including the WHSCC, its third-­‐party providers, and agents/representatives of workers and employers, must protect, collect, use and disclose that information in accordance with PHIA.

Consultation

A labour group stated that the NL Privacy Commissioner had recommended the WHSCC audit its contract service providers (health care) for compliance ǁŝƚŚ W,/ ĂŶĚ t,^ ͛Ɛ policies as a result of a privacy breach which occurred in January 2008. An injured worker raised concerns regarding the release of medical information, citing an instance where their entire medical file, including information unrelated to the workplace injury, was sent to the WHSCC. Another injured worker reported that multiple copies of their ĨŝůĞ ŚĂĚ ďĞĞŶ ƌĞůĞĂƐĞĚ ŽǀĞƌ ƚŝŵĞ ƚŽ ƚŚĞŝƌ ĞŵƉůŽLJĞƌ͛Ɛ ĐŽŶƐƵůƚĂŶƚ͘ dŚĞ ǁŽƌŬĞƌ ǁĂƐ concerned with the number of copies available and also with establishing who had access to their personal information.

Assessment

dŚĞ ^Z ͛Ɛ ƌĞƐĞĂƌĐŚ ĐŽŶĨŝƌŵĞĚ ƚŚĂƚ ƚŚĞ t,^ ŚĂƐ ĚĞǀĞůŽƉĞĚ ĂŶĚ ŝŵƉůĞŵĞŶƚĞĚ ŶĞǁ Memorandums of Agreement (MOA) with all major health care provider groups. When contracting with outside service providers, the WHSCC requires the contract to contain specific privacy and confidentiality terms imposing strict requirements on these service providers to protect confidential information. In addition, contracts contain a declaration of confidentiality which must be signed by persons providing services under the contract. Further, all health care providers regulated within the province are bound

by PHIA requirements regarding the use and protection of personal health information.

ƚ ƚŚĞ t,^ ͕ Ă ǁŽƌŬĞƌ͛Ɛ ĨŝůĞ ĐŽŶƚĂŝŶƐ ŵĂŶLJ ĚŽĐƵŵĞŶƚƐ͕ ŝŶĐůƵĚŝŶŐ ŵĞĚŝĐĂů ƌĞƉŽƌƚƐ͕ return to work plans, functional assessments, test reports, and so on. The WHSCC can share with employers, or their designated representatives, copies of return to work plans, LMR plans, functional abilities information, decision letters, and appeal letters.

The medical information shared with an employer is specific to the current claim. In the 2012 Early and Safe Return-­‐to-­‐Work Program Survey, the surveyors report that ͞ŵŽƐƚ

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IV. Claims Management (injured workers) also agree their personal information is secure, and that they were ĐůĞĂƌůLJ ĞdžƉůĂŝŶĞĚ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƉƌŽĐĞƐƐ͘͟9

The WHSCC reported it continues to work with the medical professionals with respect to what information is required for a claim to be managed appropriately. Further, WHSCC staff apply a privacy lens to the file, before releasing information it is required to share, to ensure that material unrelated to the claim is not included. Also, the WHSCC has developed guidelines for the sharing of health information with providers, consistent with the requirements under PHIA.

The SRC is satisfied with the precautions and practices the WHSCC has implemented for the protection of person health information. Once information has left ƚŚĞ t,^ ͛Ɛ purview, it is the employer or their agent who is responsible for upholding the requirements for privacy and confidentiality as required by PHIA.

4.4.2 Video Surveillance

Consultation

An injured worker and an advocate expressed concern with the use of video surveillance.

Assessment

The SRC has reviewed current practice and law in Canada with respect to video surveillance. Video evidence can only be collected and used when a concerned party has not been able to collect the information required through other, less invasive means.

Concerned parties are also not permitted to film a person in their home, and they must avoid as much as possible the filming of third parties who are unrelated to the issue under investigation.

As well, the Office of the Privacy Commissioner of Canada (OPCC) has developed guidelines for the collection and use of video evidence. The WHSCC advises it has ŝŶĐŽƌƉŽƌĂƚĞĚ ƚŚĞ KW ͛Ɛ ŐƵŝĚĞůŝŶĞƐ ŝŶ ŝƚƐ ĐŽŶƚƌĂĐƚƐ ǁŝƚŚ ƉƌŽǀŝĚĞƌƐ ŽĨ ŝŶǀĞƐƚŝŐĂƚŝǀĞ services to ensure compliance with best practice. The WHSCC also advises that it has criteria in place for the review and acceptance of video surveillance provided by other parties. The WHSCC continues to assess the use of video evidence with respect to current legal standards.

9

Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey, (WHSCC, 2013) 3.

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IV. Claims Management dŚĞ ^Z ƌĞǀŝĞǁĞĚ ƚŚĞ t,^ ͛Ɛ ƉƌŽĐĞĚƵƌĞ ŽŶ ƚŚĞ ƵƐĞ ŽĨ ǀŝĚĞŽ ƐƵƌǀĞŝůůĂŶĐĞ͘ dŚĞ procedure states: The Commission accepts photographs/visual recordings as evidence if they: 1. provide new or more complete information than is already on file; 2. are relevant and pertain to the Commission's duty to hear, examine and decide issues under the Act, and 3. are authenticated. This means that the Commission only accepts as evidence video recordings that are accompanied by a signed statement from the author setting out when (date and time) and where the recording was made, and confirming that the recording was not altered, and is a true representation of its subject. 10

The SRC supports the use of the OPCC guidelines for both the purchase of services for the WHSCC and the evaluation and acceptance of evidence collected by other interested parties. Given public interest in privacy and client concerns regarding appropriate use of video surveillance techniques, the SRC concludes the current practices guiding the collection and use of video surveillance at the WHSCC should be outlined more clearly in policy.

Recommendation

16. That the WHSCC amend its policy EN-­‐11 ʹ Investigations to codify current practice of the WHSCC as informed by the guidelines from the Office of the Privacy Commissioner of Canada (OPCC) on the collection and use of video evidence.

4.5 Disputed Claims

Consultation

During the stakeholder consultations, some injured workers raised concerns about disputed claims for minimal cost items such as medical aids.

10

WHSCC, PROCEDURE NUMBER: 57.00 Subject: Utilization of Videotape/Photographic Evidence in Decision-­‐Making. Retrieved from http://www.whscc.nl.ca/policiesandprocedures.whscc

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IV. Claims Management Assessment

The SRC discussed concerns about disputed claims for minimal cost items with both the WHSCC and the WHSCRD as these types of claims have been addressed on occasion through internal review and external review, respectively.

One suggestion brought forward to address claims for minimal cost items is for the claims management and internal review processes to deal with these matters in a fair and reasonable and consistent manner and with a view to cost and efficiency. The SRC concludes this would result in more expedient and cost effective decision-­‐making on this type of disputed claim as well as more judicious use of resources at both Internal Review and External Review (WHSCRD). Overall, it would improve client service by improving the timeliness of decisions.

Recommendation

17. That the WHSCC identify ways to resolve disputes regarding medical aids when the cost variance is minimal and the result would be a more expeditious, efficient, and cost effective resolution of the claim.

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V. Medical Management 5.1 INTRODUCTION

The WHSC Act ĂŶĚ ƚŚĞ t,^ ͛Ɛ ƉŽůŝĐŝĞƐ ƉƌŽǀŝĚĞ ĚŝƌĞĐƚŝŽŶ ĨŽƌ ƚŚĞ ŵĞĚŝĐĂů ŵĂŶĂŐĞŵĞŶƚ of claims. Early intervention on a claim from a medical management perspective ĐŽŶƚƌŝďƵƚĞƐ ƉŽƐŝƚŝǀĞůLJ ƚŽ ĂŶ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ ƌĞĐŽǀĞƌLJ͕ ƐƵƉƉŽƌƚs early and safe return to work planning, and helps with managing claim costs and benefits.

Consultation Summary

During the consultation phase, some employer groups raised the following concerns related to medical management:

Use of disability management guidelines for expectation setting with injured workers Implementation of Independent Medical Examinations (IME) as part of claims management.

5.2 USE OF GUIDELINES

In medicine, clinical practice guidelines are defined as: Systematically developed statements or recommendations to assist practitioner and patient decisions about appropriate health care for specific clinical circumstances. (They are) designed to assist health care practitioners in prevention, diagnosis, treatment and management of specific clinical presentations.11

For example, the Canadian Thoracic Society has produced clinical practice guidelines specifically to manage occupational asthma.12 Disability management guidelines are used to guide the development of rehabilitation and return to work programs. They are ĂůƐŽ ƵƐĞĚ ŝŶ ŽƚŚĞƌ ĐŽŶƚĞdžƚƐ͕ ŽƚŚĞƌ ƚŚĂŶ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ĐůĂŝŵƐ͕ ƚŽ ĂƐƐŝƐƚ individuals with their recovery from injury.13

11

Holness, D Linn. Evidence Based Medicine ʹ Occupational Disease (Toronto: Gage Occupational & EnvironmĞŶƚĂů ,ĞĂůƚŚ hŶŝƚ͕ ^ƚ DŝĐŚĂĞů͛Ɛ ,ŽƐƉŝƚĂů Θ hŶŝǀĞƌƐŝƚLJ ŽĨ dŽƌŽŶƚŽ͕ ϮϬϬϲͿ͘ ZĞƚƌŝĞǀĞĚ ĨƌŽŵ http://www.awcbc.org/common/assets/englishcongress/2006_holness.pdf

12

Tarlo, Susan M et al. Canadian Thoracic Society Guidelines for occupational asthma (1998). Retrieved from http://www.respiratoryguidelines.ca/guideline/asthma

13

Please see http://www.concussionsontario.org/guidelines-­‐for-­‐concussionmtbi-­‐persistent-­‐symptoms-­‐ second-­‐edition/ Released Sept. 24, 2013.

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V. Medical Management Consultation

A number of groups raised concerns about the use of disability management guidelines.

Some employer groups recommended that the use of disability management guidelines be mandatory and that recovery times be included in the WHSC Act to help reduce claims duration costs. Some labour groups disagreed with this approach, saying that identifying specific healing times for injuries may result in the unique considerations of a ǁŽƌŬĞƌ͛Ɛ ŝŶũƵƌLJ ĂŶĚ ƌĞĐŽǀĞƌLJ ďĞing overlooked.

The SRC also heard from some health providers that disability management guidelines are based on best available medical evidence and established practice, and when used appropriately, they offer guidance to health providers in assessing recovery progress, for identifying areas for further investigation when recovery is delayed, and for outlining recommended priorities for treatment or other forms of intervention when an injury occurs.

Assessment

Health care providers use clinical practice guidelines to assess progress of recovery and to provide guidance to the patient or client with respect to treatment options.

The WHSCC advises that it considers disability management guidelines as one factor among many, in developing a medical management program for an injured worker. The WHSCC reports that each case is considered individually. As well, the case management team supports flexibility and responsiveness to the health and recovery needs of each injured worker.

The primary goal of ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵƐ ŝƐ ƚŽ ŚĞůƉ ƚŚĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ ƌĞƚƵƌŶ to suitable and available work as soon as it is safely possible. Research indicates the more quickly an injured worker can return to work, the better the outcomes for long term recovery. In most cases, using guidelines to estimate recovery times and disability duration allows for more effective planning and for ensuring the ǁŽƌŬĞƌ͛Ɛ ĐŽŶŶĞction to their pre-­‐injury employer is maintained.14

The SRC concludes the best use of disability management guidelines is for the WHSCC to continue to use them as part of the case management process/decision-­‐making. The SRC concludes there is a need to provide education for workers and employers about the use and benefits of disability management guidelines.

14

Durand M-­‐:͕ >ŽŝƐĞů W͘ ͞Therapeutic return to work: Rehabilitation in the workplace͘͟ Work: Journal of Prevention, Assessment & Rehabilitation. Vol. 17(1) 2001: 57-­‐64.

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V. Medical Management The SRC concludes that WHSCC staff should discuss with injured workers the expectations for recovery times and the role of disability management guidelines in managing recovery, recognizing challenges to healing, and facilitating planning for early and safe return to work where appropriate.

Recommendation

18. That the WHSCC discuss disability management guidelines with injured workers and employers on the initiation of the claim to facilitate planning for early and safe return to work and to ensure the injury is understood in terms of normal recovery times while recognizing individual recovery times may vary from the guidelines.

5.3 INDEPENDENT MEDICAL EXAMINATIONS (IME)

Independent Medical Examination (IME), or second opinions as they are often called, refers to a new professional assessment or consultation by a medical practitioner who is not the primary care physician. IMEs may be used to identify new approaches in complex cases and/or where medical recovery may have plateaued.

Consultation

An employer group recommended permitting independent medical examinations on the basis of fairness in assessing claims and also to avoid unnecessary costs such as lost time.

Labour groups objected to permitting employer-­‐requested medical assessments, saying that section 62 of the WHSC Act gives the WHSCC the authority to request a medical examination if required. Labour groups also noted that second medical assessments could be used to obtain other health information, unrelated to the workplace injury, thus violating privacy requirements in provincial legislation.

Assessment

Injured workers are entitled to use the services of their own physician for the medical management of their injury. The WHSCC may, and if the situation warrants, with the authority of section 62 of the WHSC Act require injured workers to submit to a medical examination by a physician or medical officer approved or appointed by the WHSCC.

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V. Medical Management In 2006, the SRC reported there was ͙ Ɛtrong representation from employer groups that they have the opportunity to request that their injured worker submit to an independent medical examination (IME). Existing legislation or policies do not contain any provisions to permit this.

The Commission holds exclusively the prerogative for the IME. While employers can request that the Commission order such examination, the final decision is with the Commission.15

The WHSCC reported it developed a policy and met with stakeholders in May 2010 to review it. However, the stakeholders were not able to achieve consensus on the policy.

In the absence of such a policy, the WHSCC reports it is guided by a process to determine the merits of the request for an IME on a case by case basis.

The SRC concludes that this process for IMEs is adequate for the purpose and that no change is required.

15

Finding the Balance: The Report of the 2006 Statutory Review Committee on The Workplace Health, Safety and Compensation Act (May 31, 2006) 26.

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VI. Occupational Disease 6.1 INTRODUCTION

The WHSCC defines and adjudicates occupational disease claims under section 90 of the WHSC Act and section 23 of the WHSC Regulations. In A Strategy for the Prevention of Known Occupational Diseases in Newfoundland and Labrador 2011-­‐2013,16 the WHSCC defines occupational disease as: ;͙Ϳ ĚŝƐŽƌĚĞƌƐ ŽĨ ŚĞĂůƚŚ ƌĞƐƵůƚŝŶŐ ĨƌŽŵ ǁŽƌŬ ŚĂnjĂƌĚƐ ĂŶĚ ĐŽŶĚŝƚŝŽŶƐ ŝŶ ƚŚĞ workplace. These known illnesses or diseases are distinguished from occupational injuries, which are disorders resulting from trauma such as strains or sprains, lacerations, burns or soft-­‐tissue injuries, often resulting from factors such as lifting and bending, or insufficient safety controls.

The WHSCC advises that it relies on medical and scientific evidence to adjudicate occupational disease claims. It is helped in its work by the Occupational Disease Advisory Panel (ODAP), a committee of the WHSCC Board. The ODAP is responsible for reviewing the existing occupational disease strategy and identifying new strategic approaches to managing occupational disease.

In addition to the ODAP, the WHSCC also has a Memorandum of Understanding (MOU) with the Institut de recherche Robert-­‐Sauvé en santé et en sécurité du travail (IRSST), a renowned leader in the area of occupational health and safety research. The ODAP and the partnership with the IRSST allow for the transfer of key medical and scientific knowledge to the WHSCC, health care providers, the workplace parties, and others in the province.

Consultation Summary

During the consultations, the SRC received submissions from employers, injured workers, labour groups, and a municipality, regarding occupational disease. The stakeholderƐ͛ recommendations included: Improving the adjudication of occupational disease claims Establishing occupational medicine clinics for treatment and rehabilitation of injured workers Extending or removing coverage of non-­‐rebuttable presumptive clauses Emphasizing occupational disease prevention.

16

WHSCC, A Strategy for the Prevention of Known Occupational Diseases in Newfoundland and Labrador 2011-­‐2013 (^ƚ͘ :ŽŚŶ͛s) 2.

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VI. Occupational Disease 6.2 OCCUPATIONAL DISEASE CLAIMS ADJUDICATION

Consultation

Some injured workers recommended that the WHSCC develop a new process for managing claims relating to occupational disease because of the complicated nature of identifying occupational diseases and addressing latency issues.

An advocate highlighted the absence of updates of the occupational disease listing contained in the WHSC Act and its regulations, and reported continuing issues regarding exposure and latency. The advocate expressed concern that some workers were not receiving compensation because their illnesses were not listed in the WHSC Regulations or because their claims were assessed improperly.

A family representative reported facing difficulties learning about the process for filing a claim. For workers who have retired and who have moved away from the community where they worked, communications and access to information were also issues in getting a claim started. The family representative recommended that communication support be provided to help claimants navigate the system more successfully.

Another injured worker reported difficulties with the calculation of the amount of compensation for their occupational disease claim. A labour group reported the lengthy processing time for occupational disease claims was unduly difficult for workers who were very ill.

Assessment

Section 23 of the WHSC Regulations provides a list of industrial diseases and related processes. Section 23 also advises that in using the list ͞ƚŚĞ ĚĞŐƌĞĞ ĂŶĚ ƚLJƉĞ ŽĨ ĞdžƉŽƐƵƌĞ ƐŚŽƵůĚ ďĞ ƚĂŬĞŶ ŝŶƚŽ ĂĐĐŽƵŶƚ ǁŚĞŶ ĂƉƉƌŽƉƌŝĂƚĞ͘͟ The WHSCC reports that new additions to the list are dependent on the incidence of a particular disease and the availability of medical and scientific literature supporting a causal relationship between the disease and exposures in the workplace. Further, the WHSCC indicates the WHSC Act requires staff to evaluate compensation claims on the merits of an individual case; as a result, all claims, including occupational disease claims, are adjudicated on a case-­‐ by-­‐case basis. Therefore, the absence of a disease from the list does not disqualify a worker from compensation for an occupational disease.

Workers filing a claim for occupational disease can use Form 6-­‐^͗ tŽƌŬĞƌ͛Ɛ ZĞƉŽƌƚ ŽĨ Occupational Disease, although using the Form 6: Workers Report of an Injury for an occupational disease claim will be accepted. While the adjudication process for both an occupational disease and a workplace injury is the same, workers filing an occupational disease claim may experience a lengthier process for adjudication because of the

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VI. Occupational Disease complexities associated with an occupational disease claim. The injured worker may require additional time to gather necessary information regarding latency, exposure, and work history. In many cases, the original employers or companies have shut down, and new owners and managers are in place, leading to some challenges in retrieving records of employment.

The SRC reviewed the claims management processes at the WHSCC and learned that there is a team in place to provide services to workers and families affected by occupational disease. The team consists of experienced professionals who work with clients and their families to guide them through the process. This team also has experience working with clients who live in areas such as Labrador, and its members are sensitive to concerns regarding access to specialist services. The staff also works to minimize any potential sources of stress related to the claims process and the disease itself.

The SRC found that the claims process information is not readily available to a worker who is filing a compensation claim for occupational disease. For example, while the t,^ ͛Ɛ ǁĞďƐŝte contains much useful information on the prevention of occupational disease, there is little or no information on how to submit a claim for compensation related to an occupational disease, nor are there any details informing injured workers ŽĨ ƚŚĞ t,^ ͛s position on adjudicating occupational disease claims on a case-­‐by-­‐case basis.

As well, the SRC notes that the system already has opportunities and resources it can build on to assist injured workers with their occupational disease claims throughout the province. The WHSCC provides assistance to Labrador claimants through its West Coast office and staff make regular visits to Labrador. As well, workers and employers have access to advisors through the NLFL and NLEC respectively who provide information to injured workers and employers seeking advice on issues related to occupational diseases. There is also an Occupational Disease Working Group with representatives from labour, employers, the OSH Branch and the WHSCC who assist with the identification of priorities related to the implementation of the occupational disease strategy.

In addition to ƚŚĞ t,^ ͛Ɛ ƉƌŽŵŽƚŝŽŶ ŽĨ these resources, the SRC supports the development of an education session that would foster understanding of the risks of occupational disease and share strategies for prevention and risk reduction. This session could also provide information in various formats on how to submit an occupational disease claim as well educate families and advocates on how to access available resources and other support.

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VI. Occupational Disease Recommendation

19. That the WHSCC assess and improve its information and communications approaches with respect to occupational disease, and this would include the WHSCC: a) reviewing its information materials regarding the claims process for occupational disease and update its website and printed materials accordingly b) evaluating its process to identify barriers to communication and ŝŶĨŽƌŵĂƚŝŽŶ ƐŚĂƌŝŶŐ ƚŽ ĞŶƐƵƌĞ ĐůŝĞŶƚƐ ĐĂŶ ŶĂǀŝŐĂƚĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system as easily as possible c) using a collaborative approach, with industry employers, labour, the OHS Branch, and related safety sector councils, develop and deliver to employers, workers and their families, targeted information sessions on occupational disease risks in industries and regions of the province where there is a history of occupational disease or an identified risk of occupational disease.

6.3 OCCUPATIONAL MEDICINE CLINICS

Occupational medicine is the medical specialty that deals with worker health and the prevention of disease and injuries that are work-­‐related, that may be the result of certain work practices and techniques, or that may arise in specific occupations. In other jurisdictions across Canada, there are various clinic models, some under the aegis of labour groups, which provide service to injured workers.

Consultation

Several labour groups and an advocate recommended the establishment of occupational medicine clinics to deal with workplace injuries and to address prevention and education in occupational health and safety including occupational disease.

Advocates of these specialized clinics believe their availability throughout the province will facilitate early treatment for injured workers, reduce costs associated with workplace injuries, improve prevention particularly with respect to soft tissue injuries, and support research on occupational diseases and injuries.

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VI. Occupational Disease Assessment

At present, Newfoundland and Labrador has limited capacity for occupational medicine.

The WHSCC reports it has been working with Memorial University to support curriculum development for this speciality. Specifically, the WHSCC has contributed approximately $1.2 million in research and development funds to support this effort as part of the process for knowledge transfer.

The goal for the new curriculum content is to provide medical school graduates with knowledge of occupational medicine: Understanding the importance of thorough history-­‐taking, including a detailed occupational history Understanding the importance of a thorough examination that not only assists with diagnosis and treatment, but helps determine functional abilities for the purpose of helping patients/workers remain in their workplace through accommodation as they recover, or an early return to work where lost time occurs Fostering development of awareness and understanding of specific occupational diseases and industries and/or environments known for certain exposures linked to symptoms or diseases.

dŚĞ ^Z ƐƵƉƉŽƌƚƐ ĂŶĚ ƐƚƌŽŶŐůLJ ĞŶĐŽƵƌĂŐĞƐ ƚŚĞ t,^ ͛Ɛ ĐŽŶƚŝŶƵŝŶŐ ǁŽƌŬ ǁŝƚh the university to build greater knowledge and practice of occupational medicine in the province. The SRC concludes it is premature to make recommendations regarding the establishment of occupational medicine clinics because of the current limits on available resources.

6.4 PRESUMPTIVE CLAUSES

A non-­‐rebuttable presumptive clause entitles claimants to benefits and compensation based on a defined set of circumstances associated with a particular occupation and its risk for a related occupational disease. In the WHSC Act, the presumptive clause in section 91, addresses coverage only for workers employed at the St. Lawrence mine before January 1, 1984.

Consultation

Presumptive clauses were raised as a concern from several perspectives:

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VI. Occupational Disease Two employer organizations recommended the removal of presumptive clauses, saying claims should be adjudicated on medical evidence only and not presumption.

The ^ƚ͘ :ŽŚŶ͛Ɛ &ŝƌĞ FŝŐŚƚĞƌƐ͛ ƐƐŽĐŝĂƚŝŽŶ and the NLFL recommended the implementation of a presumptive clause for firefighters, with the SJFFA reminding the SRC that the 2006 Statutory Review Committee had recommended its implementation.

The Town of St. Lawrence recommended the extension of the coverage in section 91 of the WHSC Act to include all workers employed by Minworth at the St. Lawrence mine.

Assessment

The SRC does not agree with the removal of the existing presumptive clause. Where there is no presumptive clause, the SRC agrees that the WHSCC must use, as it does, available medical and scientific evidence to adjudicate an occupational disease claim.

6.5 PRESUMPTIVE CLAUSE FOR CAREER FIREFIGHTERS

Consultation

The Newfoundland and Labrador Firefighter (NLFF) Presumptive Cancer Steering Committee and a labour group requested that presumptive rebuttable coverage for cancers contracted by persons in the occupation of firefighting be included in the WHSC Act.

The NLFF Presumptive Cancer Steering Committee highlighted that their current request is for a rebuttable presumptive clause rather than a non-­‐rebuttable presumptive clause as was recommended to the 2006 Statutory Review Committee. The provincial government declined the recommendation of the 2006 Statutory Review Committee: that the Commission undertake to submit to the provincial government the respective change to the Act to allow for presumptive non-­‐rebuttable coverage for cancers contracted by persons in the occupation of firefighting.

The extent of the coverage is to be determined based on a review of cancers recognized by other jurisdictions as related to the occupation of firefighting.17

17

Finding the Balance: The Report of the 2006 Statutory Review Committee on The Workplace Health, Safety and Compensation Act, (May 31, 2006) 38.

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VI. Occupational Disease Employer groups recommended that occupational disease claims be adjudicated based on medical evidence as are other claims, not as part of a presumptive clause.

Assessment

The SRC reviewed the submissions of the NLFF Presumptive Cancer Steering Committee and a labour group and assessed similar provisions available in other jurisdictions across Canada. All provinces except Quebec, Prince Edward Island, and Newfoundland and Labrador have presumptive clauses for firefighters.

Recommendation

20. That the Government of Newfoundland and Labrador enact a separate ĨŝƌĞĨŝŐŚƚĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ĂĐƚ ĂƉƉůŝĐĂďůĞ ƚŽ ĐĂƌĞĞƌ ;ĞŵƉůŽLJĞĚͬƉĂŝĚͿ firefighters, and a) Include in the act a rebuttable presumptive clause for recognized cancers and latency periods and that the government be guided by the list ƉƌĞƐĞŶƚĞĚ ŝŶ ^ĐŚĞĚƵůĞ ĨƌŽŵ ƚŚĞ EĞǁ ƌƵŶƐǁŝĐŬ͛Ɛ &ŝƌĞĨŝŐŚƚĞƌƐ͛ Compensation Act as attached b) Outline that a claim be adjudicated under the WHSC Act first, and if rejected, the claim sŚŽƵůĚ ƚŚĞŶ ďĞ ĂĚũƵĚŝĐĂƚĞĚ ƵŶĚĞƌ ƚŚĞ ĨŝƌĞĨŝŐŚƚĞƌƐ͛ compensation act c) Establish a separate, sustainable fund that is fully funded by the municipalities that employ career firefighters and is based on an actuarial assessment d) Support the fund with the existing occupational disease fund until such time as it is fully funded by the municipalities e) Establish an appropriate Fund Policy with the assistance of the t,^ ͛Ɛ actuary which includes subjecting the fund to an annual review by the t,^ ͛Ɛ ĂĐƚƵĂƌLJ and which requires the WHSCC to administer the fund.

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VI. Occupational Disease ^ĐŚĞĚƵůĞ ͗ EĞǁ ƌƵŶƐǁŝĐŬ ZĞŐƵůĂƚŝŽŶ ƵŶĚĞƌ ƚŚĞ &ŝƌĞĨŝŐŚƚĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ Act Disease and conditions Length of service Primary site brain cancer 10 years Primary site bladder cancer 15 years Primary site colorectal cancer 20 years Primary site oesophageal cancer 25 years A primary leukemia 5 years Primary site lung cancer (in a person who has not 15 years smoked cigarettes for a minimum of 10 years before the initial diagnosis) Primary site kidney cancer 20 years A primary non-­‐,ŽĚŐŬŝŶ͛Ɛ ůLJŵƉŚŽŵĂ 20 years Primary site testicular cancer 20 years Primary site ureter cancer 15 years

6.6 PREVENTION Reducing or mitigating the risk of exposure through education, proper use of equipment, and effective workplace monitoring of health hazards are key components in the prevention of occupational disease.

Consultation

Most of the employers, labour groups and workers presenting to the SRC highlighted the importance of prevention in addressing occupational disease. Both employers and labour groups recommended more education and collaboration to improve awareness of risks with silicosis and crab asthma as specific concerns for attention.

A labour group recommended fast tracking an occupational disease committee of the board and a second labour group recommended the development of an occupational disease strategy. Both groups supported greater enforcement approaches for the prevention of occupational disease. Two labour groups also expressed concerns that increased reporting of occupational disease may be hindered by the experience rating system currently used by the WHSCC.

Assessment

As previously noted, the WHSCC has in place an Occupational Disease Advisory Panel (ODAP), whose primary responsibility is to oversee issues relating to occupational disease at the WHSCC. Established in 2009, the ODAP also has a mandate to manage the

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VI. Occupational Disease ŝŵƉůĞŵĞŶƚĂƚŝŽŶ ŽĨ ƚŚĞ t,^ ͛Ɛ Strategy for the Prevention of Known Occupational Diseases (2010).18

The focus of the strategy has been on the protection of workers from known risks that cause occupational disease. The key elements of the strategy deal with collaboration, education, and evaluation. There are also key initiatives focusing on the Labrador West dust study, hazardous medications, asbestos abatement, radiation inspection, and crab asthma, among others. The strategy is being evaluated and work is underway to set the parameters for the next iteration of the strategy including a focus on reducing the gap in data about known and unknown risks for occupational diseases.

The SRC is satisfied that a strategy and an appropriate process are in place to manage occupational disease issues within the WHSCC.

In its Annual Performance Report 2012, the WHSCC has recorded a $63 million liability for latent occupational disease.19 The compensation for occupational disease related ĐůĂŝŵƐ ŝƐ ĐŽǀĞƌĞĚ ďLJ ƚŚĞ t,^ ͛Ɛ ŐĞŶĞƌĂů ĨƵŶĚ͕ ĂŶĚ ĐůĂŝŵƐ ĨŽƌ ŽĐĐƵƉĂƚŝŽŶĂů ĚŝƐĞĂƐĞ ĚŽ not influence the experience rating used to calculate assessments for individual employers.

An analysis of occupational disease claims between 2005 and 2012 found that the WHSCC accepted: 1519 claims for deafness and hearing loss 144 claims for dermatitis and skin infections 13 claims for crab asthma

As part of its education efforts in this particular area, the WHSCC has implemented an awareness campaign focusing on the risks associated with asbestos, silica, fumes, noise, and chemicals. It has also produced fact sheets on noise and heat stress.

The SRC, in its analysis, concludes that where employers know there are confirmed workplace hazards such as noise exposures or respiratory ailments, it would be both important and useful to provide medical screening or testing specific to those hazards to establish a baseline so that individualized prevention efforts can be put in place.

Periodic medical screening or testing can assist in prevention and/or early identification of issues to mitigate the negative effects of long term exposure.

18

WHSCC, Strategy for the Prevention of Known Occupational Diseases, (2010). Retrieved from http://www.whscc.nl.ca/Publications.whscc 19 WHSCC, Annual Performance Report 2012, (2013) 4.

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VI. Occupational Disease The SRC recognizes that human health assessment is part of the environmental impact statement of major project development. The SRC further recognizes there is a need for continuing surveillance and monitoring as part of prevention through both the WHSCC and the OHS Branch including the collection of data and effective management and analysis of such data relating to occupational disease.

Recommendation

21. That the WHSCC and the OHS Branch continue surveillance and monitoring of high risk environments including the collection and analysis of data to ensure an evidence-­‐based foundation for the development of strategic initiatives targeting the prevention of occupational disease.

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VII. Early and Safe Return to Work 7.1 INTRODUCTION

The Early and Safe Return to Work (ESRTW) program is a self-­‐reliant model, as section 89 of the WHSC Act requires employers and injured workers to co-­‐operate in the injured ǁŽƌŬĞƌƐ͛ ĞĂƌůLJ ĂŶĚ ƐĂĨĞ ƌĞƚƵƌŶ ƚŽ ǁŽƌŬ͕ ƵŶĚĞƌ ƚŚĞ ŐƵŝĚĂŶĐĞ ĂŶĚ ĚŝƌĞĐƚŝŽŶ ŽĨ the WHSCC. The obligation to re-­‐employ, as set out in section 89.1 of the WHSC Act, applies to employers who regularly employ 20 or more employees and the injured worker who on the date of injury has been employed continuously for at least one year by the employer.

Employers and injured workers are required to co-­‐operate in developing an ESRTW plan that follows the hierarchy of return to work and accommodation priorities and is ĐŽŶƐŝƐƚĞŶƚ ǁŝƚŚ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĨƵŶĐƚŝŽŶĂů ĂďŝůŝƚŝĞƐ ĂŶĚ ƉƌŽŐƌĞƐƐŝǀĞ ƌĞĐŽǀĞƌLJ ĂƐ ƐƵƉƉŽƌƚĞĚ by medical rehabilitation if needed. The t,^ ͛Ɛ ƉŽůŝĐLJ ŝƐ ƚŽ ĐŽŶƚĂĐƚ ƚŚĞ ĞŵƉůŽLJĞƌ ĂŶĚ worker within 48 hours of a claim being registered to discuss the ESRTW program, ǁŚĞƌĞ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ ĨƵŶĐƚŝŽŶĂů ĂďŝůŝƚŝĞƐ ĂůůŽǁ ĨŽƌ ƉĂƌƚŝĐŝƉĂƚŝŽŶ ŝŶ ƐĂĨĞ ĂŶĚ ƐƵŝƚĂďůĞ ǁŽƌŬ͘

The t,^ ͛Ɛ ĂƉƉƌŽǀĂů ŽĨ ^Zdt ƉůĂŶƐ ŝƐ ŶŽƚ ƌĞƋƵŝƌĞĚ͕ ĂƐ ƚŚĞ ƉůĂŶ ŝƐ ƚŚĞ ƌĞƐƉŽŶƐŝďŝůŝƚLJ ŽĨ the employer and the injured worker. The WHSCC͛Ɛ ESRTW facilitators and case managers are available to provide assistance to the workplace parties to develop the plan, if needed. Worker Advisors and Employer Advisors are also available to provide assistance to workers and employers, respectively.

Consultation Summary

Employer and labour groups identified some concerns in the following areas with regard to the ESRTW program:

Clarity of information about functional abilities

Ensuring wŽƌŬĞƌƐ͛ involvement in developing ESRTW plans

Support for employers͛ implementation of ESRTW programs

Awareness of employment obligations of pre-­‐injury employers

Improving the reporting of outcomes of the ESRTW program.

7.2 WORK TO RECOVER (EARLY AND SAFE RETURN TO WORK)

Consultation

Several employers identified a number of concerns with regard to the ESRTW Program including the need to:

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VII. Early and Safe Return to Work Initiate return to work in a safe manner consistent with functional abilities at the outset /ŵƉƌŽǀĞ ŚĞĂůƚŚ ĐĂƌĞ ƉƌŽǀŝĚĞƌƐ͛ ŬŶŽǁůĞĚŐĞ ŽĨ ƚŚĞ ^Zdt program so that they can fulfill their role in the ESRTW program Require health care providers to complete functional abilities information consistently in a manner that helps employers and workers to develop and implement an ESRTW plan Provide additional support to employers.

Assessment

KǀĞƌĂůů͕ ƚŚĞ ^Z ďĞůŝĞǀĞƐ ĞŵƉŚĂƐŝƐ ƐŚŽƵůĚ ďĞ ƉůĂĐĞĚ ŽŶ ͞ǁŽƌŬ ƚŽ ƌĞĐŽǀĞƌ͕͟ ƚŚĞ ŽƌŝŐŝŶĂů ŝŶƚĞŶƚ ŽĨ ƚŚĞ ^Zdt ƉƌŽŐƌĂŵ͘ ƐƐŝŐŶŝŶŐ ŵĞĂŶŝŶŐĨƵů ǁŽƌŬ ǁŝƚŚŝŶ ǁŽƌŬĞƌƐ͛ ĨƵŶĐƚŝŽŶĂů abilities and with proper rehabilitative support progressing to full recovery and return to the pre-­‐injury job are the desired outcomes of an ESRTW plan, developed as part of an ĞŵƉůŽLJĞƌ͛Ɛ ^Zdt ƉƌŽŐƌĂŵ. The SRC believes an effective ESRTW program is key for many injured workers͛ successful return to the workplace. As part of its research, the SRC reviewed the ŝƚLJ ŽĨ ^ƚ͘ :ŽŚŶ͛Ɛ ŝƐĂďŝůŝƚLJ DĂŶĂŐĞŵĞŶƚ WƌŽŐƌĂŵ͕ ĂŶ ĞdžĂŵƉůĞ ŽĨ ESRTW program. It may be useful for the WHSCC to examine this model as part of its ongoing review and assessment of the ESRTW program.

,ĞĂůƚŚ ĐĂƌĞ ƉƌŽǀŝĚĞƌƐ ƉůĂLJ Ă ŬĞLJ ƌŽůĞ ŝŶ ƐƵƉƉŽƌƚŝŶŐ ĂŶ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ ƌĞĐŽǀĞƌLJ ƚŚƌŽƵŐŚ the ESRTW program and therefore must be well informed about the program. As required by section 89.3(1) of the WHSC Act ĂŶĚ ĂƐ ŽƵƚůŝŶĞĚ ŝŶ ƚŚĞ t,^ ͛Ɛ Policy RE-­‐ 02 The Goal of Early and Safer Return to Work and the Roles of the Parties, health care providers are to: Provide ŝŶĨŽƌŵĂƚŝŽŶ ŽŶ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ ĨƵŶĐƚŝŽŶĂů ĂďŝůŝƚŝĞƐ ƚŽ ƚŚĞ ǁŽƌŬĞƌ͕ ƚŚĞ employer and the WHSCC Provide medical information to the worker and the WHSCC Identify appropriate treatment for the injury ͞ĞŶƐƵƌ΀Ğ΁ ƚŚĞ ǁŽƌŬĞƌ ƌĞĐĞŝǀĞƐ ƚŝŵĞůLJ ƚƌĞĂƚŵĞŶƚ Ensur΀Ğ΁ ƌĞƚƵƌŶ ƚŽ ǁŽƌŬ ŝƐ ĚŝƐĐƵƐƐĞĚ ƚŚƌŽƵŐŚŽƵƚ ƌĞĐŽǀĞƌLJ͘͟20

dŚĞ ^Z ďĞůŝĞǀĞƐ ƚŚĞ ĐŽŶĐĞƉƚ ŽĨ ͞ǁŽƌŬ ƚŽ ƌĞĐŽǀĞƌ͟ ƐŚŽƵůĚ ďĞ ĞŵƉŚĂƐŝnjĞĚ ŝŶ ĞĚƵĐĂƚŝŽŶ for health care providers including physicians. In the short term, the WHSCC should

20

WHSCC, RE-­‐02 The Goal of Early and Safe Return to Work and the Roles of the Parties, 4. Retrieved from: http://www.whscc.nl.ca/policiesandprocedures.whscc

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VII. Early and Safe Return to Work promote the ESRTW program and provide training to the workplace parties and health care providers.

7.3 FUNCTIONAL ABILITIES INFORMATION

Consultation

Some employers reported difficulty in developing ESRTW plans when the information provided by the physician is unclear as to the functional abilities of the individual.

Focusing on the work that cannot be done Žƌ ƐƚĂƚŝŶŐ ͞ŶŽƚ ĂďůĞ ƚŽ ǁŽƌŬ͟ ŵĂŬĞƐ ŝƚ challenging for the employer to identify how to modify tasks or to assign work. One suggestion was to focus on the work that can be done rather than the activity that cannot be done.

Assessment

The WHSCC͛Ɛ policy RE-­‐03 Functional Abilities Information for Return to Work states the intention of the functional abilities information ͞ŝƐ ƚŽ ŚŝŐŚůŝŐŚƚ ǁŚĂƚ Ă ǁŽƌŬĞƌ ĐĂŶ ĚŽ ĂŶĚ ǁŚĂƚ ůŝŵŝƚĂƚŝŽŶƐ ĂƉƉůLJ͘͟

The WHSCC indicates that in most cases the information provided in the functional abilities section of the 8-­‐10 Form is sufficient to complete the ESRTW plan. When the section is not adequately completed, the WHSCC contacts the physician to request the information.

The WHSCC has a new memorandum of agreement (MOA) with the Newfoundland and Labrador Medical Association (NLMA) through which the WHSCC and the NLMA are working together to raise awareness of the ESRTW program and its requirements. The WHSCC indicates it will continue to monitor the completion of the functional abilities information.

The WHSCC has ESRTW facilitators available to assist employers and workers in the development of ESRTW plans and throughout the process.

The SRC is satisfied that the WHSCC has initiatives in place to address the issue regarding functional abilities information however, there appears to be a need to promote the resources available to assist workers and employers with the ESRTW program.

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VII. Early and Safe Return to Work 7.4 tKZ< Z^͛ W Zd/ /W d/KE /E ^Zdt W> E^

Consultation

A labour group raised the concern that injured workers are often not included in the development of the ESRTW plan and they do not understand their role in the developing the plan and what it means to them.

Assessment

In the 2012 Early and Safe Return-­‐to-­‐Work Program Survey, it is reported that injured workers and employers who have participated in the ESRTW program are both moderately satisfied with the ESRTW program service: ͞ŽŶĞ ŝŶ ƚǁŽ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ ESRTW clients are satisfied with their plan, while slightly more employers report ƐĂƚŝƐĨĂĐƚŝŽŶ ǁŝƚŚ ƚŚĞ ƉƌŽŐƌĂŵ͘͟21

While the majority of injured workers report they participated in the development of their ESRTW plans, only half of them indicated they were satisfied with the extent of their participation. Participation in the development of the plan with the employer was ĨŽƵŶĚ ƚŽ ďĞ ƚŚĞ ŬĞLJ ĚƌŝǀĞƌ ŽĨ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ Ɛatisfaction with the ESRTW plan.22 ͞dŚŽƐĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌƐ ǁŚŽ ĂƌĞ ƐĂƚŝƐĨŝĞĚ ǁŝƚŚ ƚŚĞŝƌ ^Zdt ƉůĂŶ ;ŶсϭϬϬͿ ƌĞůĂƚĞ ƚŚĂƚ ƚŚŝƐ is because it helped get them back to work, or that they were given modified duties or ǁŽƌŬƉůĂĐĞ ĂĐĐŽŵŵŽĚĂƚŝŽŶƐ͘͟23

The survey identifies the following opportunities for the WHSCC to improve the ESRTW program by:

Encouraging greater collaboration between the employer and worker in the development of the ESRTW plan

Becoming more involved in the development of the ESRTW plan

Providing better support to workers and to encourage employers to avail of the t,^ ͛Ɛ ĂƐƐŝƐƚĂŶĐĞ ŝŶ the development of ESRTW plans

Enhancing the t,^ ͛Ɛ ĐŽŵŵƵŶŝĐĂƚŝŽŶƐ ĂŶĚ ĐŽůůĂďŽƌĂƚŝŽŶ ǁŝƚŚ ŝŶũƵƌĞĚ ǁŽƌŬĞƌƐ and employers with regard to ESRTW issues

Providing more education for employers about the ESRTW program.

21

Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey, (WHSCC, 2013) 3.

22 Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey, (WHSCC, 2013) 15.

23 Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey, (WHSCC, 2013) 14.

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VII. Early and Safe Return to Work

The SRC recognizes that the WHSCC is undertaking steps to address the opportunities for improvement, as identified through the survey. The SRC understands that the WHSCC intends to conduct ESRTW surveys every two years.

7.5 SUPPORT FOR EMPLOYERS TO IMPLEMENT THE ESRTW PROGRAM

Consultation

An employer suggested more support is required for employers regarding the ESRTW program.

Assessment

The 2012 Early and Safe Return-­‐to-­‐Work Program Survey notes the high level of satisfaction reported by employers who were helped by WHSCC in developing ESRTW plans, and highlights the opportunity to promote this service to other employers. While employers participating in the survey reported they generally have a high level of understanding of the ESRTW program, it must be noted these employers have experience with the ESRTW program.24

The WHSCC reports that organizations with staff trained in the ESRTW process have better outcomes.25 The WHSCC offers ESRTW training and educational materials such as the ESRTW Handbook. Case managers and ESRTW Facilitators also provide advice and support to employers and workers as needed during the ESRTW process. PRIME includes a requirement for some employers to have a return-­‐to-­‐work program, so there is an incentive for employers to participate in ESRTW.

In its Annual Performance Report 2012, the WHSCC reports that it began targeting a small group of employers, based on accident history and claims costs, to review their ESRTW programs and develop action plans for improvement.

The SRC concludes that an ESRTW education program for the workplace parties is critical to raise their awareness and understanding of the ESRTW program and to make the development of ESRTW plans a common practice. The WHSCC has advised the SRC that they are initiating a social marketing campaign to raise awareness of the importance of working to recover ʹ the ESRTW program. These initiatives will move the province forward in building a culture of safety in the workplace.

24

Corporate Research Associates Inc, 2012 Early and Safe Return-­‐to-­‐Work Program Survey, (WHSCC, 2013) 4.

25 WHSCC, Annual Performance Report 2012, (2013) 23.

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VII. Early and Safe Return to Work

The SRC also concludes that the development of a training certification standard for ESRTW is essential. The training certification standard should include, among other things:

The principles and benefits of return to work for injured workers

Legislative obligations and roles of the worker, employer, health care providers and WHSCC

How to develop and implement ESRTW plans

Best practices for maintaining a supportive, collaborative relationship with the injured worker

Information regarding available advisors/resources.

The target audience for this training includes OHS Committee members, human resources professionals, health, safety and environment professionals, union and worker representatives, and the workplace parties.

Recommendations

22. That the WHSCC, in consultation with the NLEC and the NLFL, develop an ESRTW education program they would jointly promote along with the Safety Sector Councils. This program should convey the importance of ESRTW to workers and employers and clearly identify the roles of the worker, employer, health care providers, and the WHSCC in the ESRTW program. This program should be available to employers and workers without a course fee.

23. That the WHSCC consider the development of a training certification standard for early and safe return to work.

7.6 Employment Obligations of Pre-­‐injury Employers

Section 89.1(7) of the WHSC Act requires an employer to ͞accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the emploLJĞƌ ƵŶĚƵĞ ŚĂƌĚƐŚŝƉ͘͟ The WHSCC Policy RE-­‐07 Undue Hardship outlines the factors considered by the WHSCC in determining whether the test for undue hardship is met.

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VII. Early and Safe Return to Work Consultation

During the stakeholder consultations, there was some concern expressed about accommodation, and that more support is required from the WHSCC for employers in the ESRTW process.

A labour group recommended that the WHSCC investigate whether employers are adhering to early and safe return to work policies and obligations, and enforce return to work policies as employers are not complying with the legislative responsibility to accommodate (i.e., return to work with the pre-­‐injury employer).

Assessment

The SRC has reviewed the plan developed by the WHSCC to enhance the effectiveness of the ESRTW program. This plan was developed at the request of government after the 2006 Statutory Review. The WHSCC advised that the plan was developed in 2010 and implementation continues. Since 2011, through its Claims Management Model, the WHSCC updatĞƐ ĂŶĚ ŵŽŶŝƚŽƌƐ Ă ǁŽƌŬĞƌ͛Ɛ ƉƌŽŐƌĞƐƐ ƚŚƌŽƵŐŚ ƚŚĞŝƌ ^Zdt ƉůĂŶ ŝŶ ƌĞůĂƚŝŽŶ to the Hierarchy of Return to Work, supported by disability management guidelines.

Each case is managed based on its unique circumstances.26

In addition, the WHSCC indicates that since early in 2013, it has been able to access reports from its data warehouse regarding time to first contact, submission of ESRTW plans, time to start of ESRTW, ESRTW durations and the application of the Hierarchy of Return to Work priorities. This information allows the WHSCC to:

Identify issues such as a delay in the initial contact of the workplace parties or a delayed start of ESRTW and to intervene on a more timely basis

Measure results across all regions at the program, manager/regional director, team lead and case manager level

Establish key performance indicators and performance targets for ESRTW.

Reporting is also now available on the Hierarchy of Return of Work, which allows the WHSCC to:

Ensure that the hierarchy priorities are being appropriately applied to all ESRTW claims and to flag those where a priority has not been identified for management review and action

26

WHSCC, A Plan to Enhance the Effectiveness of the ESRTW Program (2010) 17.

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VII. Early and Safe Return to Work

Determine whether a worker is working at a priority level that is as close as possible to the full duties of the pre-­‐injury job, based on current functional abilities

Ensure that the ESRTW plan is progressive in nature by monitoring duration and changes in priority levels which increases the likelihood that the ESRTW plan will be successfully completed and result in a return to the pre-­‐injury occupation.

Recommendation

24. That the WHSCC evaluate the ESRTW program in light of the new information available and revise the program to ensure there is meaningful cooperation between the employer and the worker in the development of an effective ESRTW plan, and ensure: a. That the ESRTW ƉůĂŶ ŝƐ ŝŵƉůĞŵĞŶƚĞĚ ŽŶ Ă ƚŝŵĞůLJ ďĂƐŝƐ ĂƐ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ functional abilities allow, with the objective being to progress through the Hierarchy of Return to Work b. That employers are meeting the legislative requirement to re-­‐employ up to the point of undue hardship.

7.7 Reporting Outcomes of the ESRTW Program

In reviewing the concerns raised in regard to the ESRTW program, the SRC examined the ESRTW outcomes reported by the WHSCC and considered its use of key performance indicators to assess success with ESRTW.

The t,^ ͛Ɛ Annual Performance Report 2012 indicates that fewer claims are moving to extended earnings loss, due to a combination of declining number of injuries, implementing proactive ESRTW program and case management, and improving return to work outcomes.27

The WHSCC indicates 80% of injured workers have returned to work within 26 weeks of an injury. Since 2011, of 5,175 claims with an ESRTW program, 3,648 (70%) achieved one of the following return-­‐to-­‐work outcomes: Return to pre-­‐injury job Return to essential duties of pre-­‐injury job Return to suitable work Return to alternate work or 27

WHSCC, Annual Performance Report 2012, (2013), 21.

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VII. Early and Safe Return to Work Did not return to work but had the capacity to do so.

As required by section 74 of the WHSC Act, the WHSCC seeks to restorĞ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ earning capacity.

The WHSCC was not able to provide a breakdown of the number of ESRTW program participants in each of the outcomes noted above. The WHSCC advised the SRC that it has recently implemented a new module under its Claims Management Model which will provide better data for the evaluation of the ESRTW Program and further, WHSCC staff will be identifying key performance indicators for ESRTW by the end of 2013.

Recommendation

25. That the WHSCC develop key performance indicators for return to work outcomes and at a minimum track and report on each of the following outcomes: the level of return to the pre-­‐injury job, return to essential duties of pre-­‐injury job, return to suitable work, return to alternate work, and did not return to work but had the capacity to work.

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VIII. Labour Market Re-­‐entry 8.1 INTRODUCTION

When a worker is injured, where possible and appropriate, the focus is on supporting ƚŚĞ ǁŽƌŬĞƌ͛Ɛ ƌĞĐŽǀĞƌLJ ĨƌŽŵ ƚŚĞ ŝŶũƵƌLJ ĂŶĚ ĨĂĐŝůŝƚĂƚŝŶŐ ƚŚĞŝƌ ĞĂƌůLJ ĂŶĚ ƐĂĨĞ ƌĞƚƵƌŶ ƚŽ ǁŽƌŬ͘ When an injured worker cannot be accommodated in suitable, available employment and earnings comparable to their pre-­‐injury status, the WHSCC provides the worker with Ă ůĂďŽƵƌ ŵĂƌŬĞƚ ƌĞͲĞŶƚƌLJ (LMR) ƉƌŽĐĞƐƐ ǁŚŝĐŚ ŝŶĐůƵĚĞƐ Ă ůĂďŽƵƌ ŵĂƌŬĞƚ ƌĞͲĞŶƚƌLJ assessment, and if appropriate Ă ůĂďŽƵƌ ŵĂƌŬĞƚ ƌĞͲĞŶƚƌLJ ƉůĂŶ ;Ɛection 89.2 of the WHSC Act) to facilitate re-­‐employment. In its Annual Performance Report 2012, the WHSCC states ͞ƚhe LMR Program ensures workers have the skills, knowledge and abilities to re-­‐ enter the labour market and reduce or eliminate their loss of earnings resulting from the injury.͟28 The program focuses on employability.29

Consultation Summary

A number of injured workers raised concerns regarding the LMR program: The occupations identified in the LMR Assessment that they were capable of performing were not realistic employment opportunities in their community (for example, parking lot attendant, customer service representative, dispatcher, and bank teller) That training/retraining was not available.

Labour groups recommended improvements to the LMR program, including:

The WHSCC should track injured workers who participate in the LMR program to determine if they return to the labour market

dŚĞ >DZ ƉƌŽŐƌĂŵ ƐŚŽƵůĚ ĨŽĐƵƐ ŽŶ ǁŽƌŬĞƌƐ͛ ƌĞĂůŝƐƚŝĐ ŽƉƉŽƌƚƵŶŝƚŝĞƐ ĂŶĚ ƐŬŝůůƐ͕ ŶŽt that there is work available in the province

Existence of employment in other parts of the province should not result in proportionment

The WHSCC should provide LMR services rather than third party providers

The WHSCC should ensure employers are fulfilling the legislative requirement to accommodate injured workers before the injured worker enters the LMR program

The physical, emotional and psychological health of the worker should be considered in the LMR process.

28

WHSCC, Annual Performance Report 2012, (2013) 23.

WHSCC Policy RE-­‐12 Labour Market Re-­‐entry Overview, 3. Retrieved from http://www.whscc.nl.ca/policiesandprocedures.whscc

29

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VIII. Labour Market Re-­‐entry 8.2 OCCUPATIONS IDENTIFIED IN THE LMR ASSESSMENT

Consultation

Some injured workers raised the concern that the occupations for which they were assessed as capable of performing as identified in the LMR Assessment were not realistic employment opportunities in their community. The workers described these occupations as: parking lot attendant, customer service representative, dispatcher, and bank teller.

Assessment

As part of the LMR Assessment, there is a requirement to identify occupations (not employment opportunities), that would be suitable employment for the worker ĐŽŶƐŝĚĞƌŝŶŐ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ ƐŬŝůů ƚLJƉĞ͕ ƐŬŝůů ůĞǀĞů͕ ĞŵƉůŽLJŵĞŶƚ ŚŝƐƚŽƌLJ, and transferable skills. These occupations are identified using the National Occupation Classification (NOC) system.

The SRC concludes injured workers would benefit more from the identification of occupations that are more relevant to where they live in the province. The WHSCC should address this matter with its LMR Assessment service providers directing them to provide occupational information which is relevant to the region.

Recommendation

26. That the WHSCC review the occupational classification component of the Labour Market Re-­‐entry (LMR) Assessment and ensure service providers clearly communicate the process to injured workers. Further, the WHSCC should ensure that recommended occupational classifications and the occupations that are identified within those classifications are suitable for the injured worker and are relevant to where the injured worker lives in the province.

8.3 TRAINING

Consultation

Several injured workers raised the concern that training/retraining was not available to them.

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VIII. Labour Market Re-­‐entry Assessment

If a worker has transferable skills, knowledge and abilities that would allow them to re-­‐ enter the labour market in suitable employment, training is not required. If the worker requires new or upgraded skills to re-­‐enter the labour force, then an LMR Plan is prepared. Based on the LMR Assessment, the WHSCC determines if the worker has transferrable skills or whether an LMR Plan is required.30

/Ŷ ƌĞƐƉŽŶƐĞ ƚŽ ƚŚĞ ^Z ͛Ɛ ŝŶƋƵŝƌŝĞƐ͕ ƚŚĞ t,^ ƌĞƉŽƌƚƐ ƚŚĂƚ ǁŽƌŬĞƌƐ ǁŚŽ ĚŽ ŶŽƚ ƌĞĐĞŝǀĞ LMR Plans have the skills to re-­‐enter the labour market. Some workers who do not have the skills choose not to take upgrading or formal training for various reasons.

The WHSCC does offer Employment Readiness Services and Introductory Computer Training programs designed to enhance skills for all workers in the LMR program.

Participation is voluntary. In 2012, 47 of 265 workers participated in employment readiness.

The SRC concludes that the current WHSCC process for developing and delivering an LMR Plan is satisfactory.

8.4 LMR OUTCOMES

Consultation

Several labour groups recommended that the WHSCC should track injured workers who participate in the LMR program to determine if they return to the labour market.

Assessment

The 2006 SRC recommended that the t,^ ͞ƐŚŽƵůĚ ĚĞǀĞůŽƉ Ă ĨƌĂŵĞǁŽƌŬ ƚŽ ŵŽŶŝƚŽƌ the labour market re-­‐entry program and the labour market re-­‐entry service providers͘͟31 The provincial gŽǀĞƌŶŵĞŶƚ͛Ɛ ϮϬϬ8 Statutory Review Action Plan required the WHSCC to develop a quality improvement plan for the LMR program which would address improved staff training, education, and performance measurement.

The WHSCC developed a quality improvement plan for the LMR program in 2010. The key performance indicators presented in the t,^ ͛Ɛ Annual Performance Report 2012 address important considerations in the LMR process and set specific targets. WHSCC 30 WHSCC Policy RE-­‐12 Labour Market Re-­‐entry Overview, 2.

31 Finding the Balance: The Report of the 2006 Statutory Review Committee on The Workplace Health, Safety and Compensation Act (May 31, 2006) 25.

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VIII. Labour Market Re-­‐entry staff evaluate LMR Planner Assessment Reports on key criteria including worker participation in the process, quality of assessment, reasonable turnaround times and cost. Other key performance indicators include:

The number and percentage of LMR Assessment Reports referred back by case managers for revision

An increase in the number of LMR Screening Assessments completed

An increase in the LMR plans successfully completed and ongoing.

The WHSCC has established targets for the turnaround time of LMR Planner Assessment reports and suitable employment and earnings decisions. In its Annual Performance Report 2012, the WHSCC reported these targets were not being met; however, it indicated it expects to achieve the targets in the future.

Other initiatives undertaken as part of the LMR program quality improvement plan are:

The evaluation of LMR assessment audits (audits examine each phase of the LMR process: referrals, assessment and planning)

Proactive monitoring of internal and external review decisions related to the LMR program.

WHSCC indicates information from these initiatives facilitates the continuous improvement of the LMR program and training.

The SRC concludes that the WHSCC is monitoring the LMR program appropriately through the key performance indicators and its other initiatives.

8.5 LEGISLATIVE REQUIREMENT TO ACCOMMODATE INJURED WORKERS

The legislative obligation for pre-­‐injury employers to accommodate injured workers is addressed in Section VII Early and Safe Return to Work, sub-­‐section 7.6 of this report.

8.6 EMPLOYMENT OPPORTUNITIES

Consultation

Some labour groups raised the concern that the availability of employment in other parts of the province should not result in proportionment. Injured workers raised the same issue from the perspective of it being unreasonable to expect them to relocate for employment, particularly for minimum wage jobs.

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VIII. Labour Market Re-­‐entry

Assessment

The SRC believes that ensuring the occupations identified for injured workers during the LMR Assessment are relevant to the region where the worker resides will be helpful.

Once an injured worker has complĞƚĞĚ ƚŚĞ >DZ WƌŽŐƌĂŵ͕ ƚŚĞ t,^ ŚĂƐ ͞ĞŶƐƵƌĞ΀Ě΁ workers have the skills, knowledge and abilities to re-­‐enter the labour market and ƌĞĚƵĐĞ Žƌ ĞůŝŵŝŶĂƚĞ ƚŚĞŝƌ ůŽƐƐ ŽĨ ĞĂƌŶŝŶŐƐ͘͟32

While the WHSCC has introduced changes to the LMR program based on its 2010 review of the program, the SRC has identified the following opportunities to improve client service:

Develop relationships/partnerships with job/work placement programs in the community which will provide assistance to LMR clients

Ensure career options identified in the LMR assessments are realistic and appropriate to the skills and capability of the worker and are regionally relevant

Engage employers and labour in consultations to identify opportunities for enabling labour market re-­‐entry and identifying new options for employment and re-­‐training.

Recommendation

27. That the WHSCC continue building on the improvements implemented through the 2010 Labour Market Re-­‐entry Program Quality Improvement Plan, and embark on a second phase to ensure a thorough review of the services and assistance available to workers referred to the Labour Market program is carried out and to make any necessary improvements which arise from the review.

32 WHSCC Policy RE-­‐12 Labour Market Re-­‐entry Overview, 2. Retrieved from http://www.whscc.nl.ca/policiesandprocedures.whscc

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IX. Internal Review 9.1 INTRODUCTION

dŚĞ t,^ ͛Ɛ ĂƵƚŚŽƌŝƚLJ ƚŽ ƌĞǀŝĞǁ ŝƚƐ ĚĞĐŝƐŝŽŶƐ ŝƐ ƉƌŽǀŝĚĞĚ ďLJ section 19.3 of the WHSC Act. Through its policy AP-­‐01 Internal Review, the WHSCC has established Internal ZĞǀŝĞǁ͕ Ă ƉƌŽĐĞƐƐ ƚŚƌŽƵŐŚ ǁŚŝĐŚ ĂŶ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͕ ƚŚĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ ĚĞƉĞŶĚĞŶƚ͕ Žƌ the employer can request, in writing, a review within 30 days from the date of receiving a written decision from the WHSCC. The policy also states the Internal Review Division will provide a final written decision to the parties within 45 days from the date the written request for review is received.

After receiving the decision from the t,^ ͛Ɛ /ŶƚĞƌŶĂů ZĞǀŝĞǁ ŝǀŝƐŝŽŶ͕ ŝĨ ƚŚĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͕ ƚŚĞ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ ĚĞƉĞŶĚĞŶƚ Žƌ ƚŚĞ ĞŵƉůŽLJĞƌ ĚŝƐĂŐƌĞĞƐ ǁŝƚŚ ƚŚĞ ĚĞĐŝƐŝŽŶ͕ they can apply to the WHSCRD Requesting a Review, commonly referred to as an external review.

The WHSCC provides services to 19,000 employers and 12,000 injured workers. Many ŝŶĚŝǀŝĚƵĂů ĚĞĐŝƐŝŽŶƐ ĂƌĞ ŵĂĚĞ ŽŶ ĂŶ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ͛Ɛ ĐůĂŝŵ ŽǀĞƌ ƚŝŵĞ ǁŝƚŚ ƌĞƐƉĞĐƚ ƚŽ items such as travel costs, medical aid, and entitlement to rehabilitation services.

Similarly, ŵĂŶLJ ĚĞĐŝƐŝŽŶƐ ĂƌĞ ŵĂĚĞ ŽŶ ĞŵƉůŽLJĞƌƐ͛ ĨŝůĞƐ ǁŝƚŚ ƌĞƐƉĞĐƚ ƚŽ ŝƚĞŵƐ ƐƵĐŚ ĂƐ assessment rate decisions, assignment of the Newfoundland Industrial Classification (NIC) codes, registrations, practice and experience ratings for PRIME, and clearance certificates. In total, the WHSCC estimates it makes approximately 120,000 decisions a year on all claims. Each year a small percentage of these decisions become the subject of a request for an internal review.

Consultation Summary

Some injured workers raised concerns about the internal review process, and an advocate recommended it be eliminated.

9.2 LENGTHY REVIEW PROCESSES

An advocate indicated lengthy review processes negatively affect injured workers as they may experience an extended period without income, and suggested among other things, the elimination of Internal Review as a way to shorten the claims process.

Assessment

Over each of the last five years (2008 to 2012), the Internal Review Division received on average 1,260 requests for internal review and rendered approximately 1,000 decisions.

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IX. Internal Review The volume of requests for internal review is affected by the fact that about 97% of claims are accepted by the WHSCC per year, leaving a small percentage of claims that is denied. As noted previously, any accepted claim may have multiple requests for internal review and subsequently, these may become the subject of a request for external review.

The WHSCC reported that in 2008, after the 2006 Statutory Review, the provincial government asked the WHSCC to evaluate the internal and external review structures to identify options that would ĞŶŚĂŶĐĞ ƚŚĞ ƋƵĂůŝƚLJ ŽĨ ƚŚĞ ĐůŝĞŶƚ͛Ɛ ĞdžƉĞƌŝĞŶĐĞ͘ The WHSCC completed a study and reported to the provincial government. The WHSCC reports that a number of changes have been made since that time with regard to Internal Review as a result, including improvements in:

In-­‐house training

Internal communication on decisions overturned or referred back and decisions on complex issues

Communication with clients to clarify issues and through decision letters which identify the right to appeal and provide contact information

Analysis of internal and external decision outcomes.

From the t,^ ͛Ɛ ƉĞƌƐƉĞĐƚŝǀĞ͕ /ŶƚĞƌŶĂů ZĞǀŝĞǁ ĨƵŶĐƚŝŽŶƐ ĂƐ Ă ƋƵĂůŝƚLJ ĂƐƐƵƌĂŶĐĞ mechanism that verifies whether the decŝƐŝŽŶ ŽŶ ĂŶ ŝŶĚŝǀŝĚƵĂů ĐůĂŝŵ ŝƐ ͞ĨĂŝƌ͕ ƌĞĂƐŽŶĂďůĞ ĂŶĚ ĐŽŶƐŝƐƚĞŶƚ͕͟ ĂŶĚ is in accordance with the WHSC Act, its regulations and policy. For injured workers and employers, Internal Review presents the opportunity to request a review when they believe a decision is not in compliance with the WHSC Act, its regulations and policy.

Based on its examination ŽĨ ƚŚĞ ƉƵƌƉŽƐĞ ŽĨ /ŶƚĞƌŶĂů ZĞǀŝĞǁ ǁŝƚŚŝŶ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system, the SRC is satisfied that Internal Review is an integral part of claims management and is beneficial to injured workers, employers and the WHSCC in terms of undertaking a review of claims decisions and rendering a final decision from the WHSCC.

9.3 INTERNAL REVIEW PROCESS

As noted previously, the WHSCC reviewed the internal review proĐĞƐƐ Ăƚ ŐŽǀĞƌŶŵĞŶƚ͛Ɛ request following the report of the 2006 Statutory Review and implemented improvements. The consultations conducted by the SRC identified several aspects of the internal review process that could be improved.

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IX. Internal Review The WHSCC indicates that Ăƚ ƉƌĞƐĞŶƚ ĂŶ ŝŶƚĞƌŶĂů ƌĞǀŝĞǁ ŝƐ Ă ƉĂƉĞƌ ƌĞǀŝĞǁ͘ t,^ ͛Ɛ policy AP-­‐01 Internal Review allows staff to undertake activities beyond a paper review ŝŶĐůƵĚŝŶŐ ͞ŝŶƚĞƌǀŝĞǁƐ͕ ŵĞĞƚŝŶŐƐ ĂŶĚ ƌĞƋƵĞƐƚƐ ĨŽƌ ĨƵƌƚŚĞƌ ĚĞƚĂŝůƐ ĨŽƌ ĐůĂƌŝĨŝĐĂƚŝŽŶ͘͟

Assessment

Using the exŝƐƚŝŶŐ ĨƵůů ƐĐŽƉĞ ŽĨ ƚŚĞ /ŶƚĞƌŶĂů ZĞǀŝĞǁ ƉƌŽĐĞƐƐ ͞ŝŶƚĞƌǀŝĞǁƐ͕ ŵĞĞƚŝŶŐƐ͕ ĂŶĚ ƌĞƋƵĞƐƚƐ ĨŽƌ ĨƵƌƚŚĞƌ ĚĞƚĂŝůƐ͟ ĂƐ ĚĞƐĐƌŝďĞĚ ŝŶ ƉŽůŝĐLJ͕ ǁŚĞŶ ĂƉƉƌŽƉƌŝĂƚĞ͕ ǁŽƵůĚ ƌĞƐƵůƚ ŝŶ Ă more effective process than a paper review only and likely reduce the number of applications for external review. In turn, this would reduce the time the applicant is waiting for a decision and would improve both client service delivery/satisfaction and the cost effectiveness of the system.

Implementation of these changes requires a review of the Internal Review policy, work process, accountability, and resourcing to ensure it is aligned with this initiative. &ƵƌƚŚĞƌ͕ ƚŚĞ ^Z ĐŽŶĐůƵĚĞƐ ƚŚĂƚ ŵĂŝŶƚĂŝŶŝŶŐ ƚŚĞ /ŶƚĞƌŶĂů ZĞǀŝĞǁ ƉƌŽĐĞƐƐ ƵŶĚĞƌ t,^ ͛Ɛ policy allows for flexibility and adaptability of that process.

Recommendation

28. That the WHSCC should use its discretion to determine the scope of the internal review process regarding the use of interviews, meetings, and requests for further details on a case-­‐by-­‐case basis, and that the WHSCC should undertake a review of its Internal Review policy, work process, accountability and resourcing to ensure it is aligned with this initiative.

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X. External Review 10.1 INTRODUCTION

An injured worker, a dependent of an injured worker, or an employer may request an External Review from the Workplace Health, Safety and Compensation Review Division (WHSCRD) if they disagree with a decision regarding their claim as rendered by the WHSCC͘ ƌĞƋƵĞƐƚ ŵĂLJ ďĞ ŵĂĚĞ ǁŚĞŶ ƚŚĞLJ ŚĂǀĞ ƌĞĐĞŝǀĞĚ t,^ ͛Ɛ ĨŝŶĂů ĚĞĐŝƐŝŽŶ ĨƌŽŵ Internal Review.

The WHSCRD reported to the SRC that it has received on average 330 Request for Review applications in each of the last five years.

Consultation Summary

Injured workers, advocates and labour groups raised several concerns with the external review process, including:

The long wait period for External Review

The availability of representation for injured workers during the external review process

The use of reconsideration as another level of appeal.

10.2 TIMELINE/SCHEDULE FOR EXTERNAL REVIEW

The WHSC Act requires the WHSCRD ƚŽ ĐŽŵŵƵŶŝĐĂƚĞ ƚŚĞ ƌĞǀŝĞǁ ĐŽŵŵŝƐƐŝŽŶĞƌ͛Ɛ decision within 60 days of the date of the application for external review. Both of the previous statutory reviews noted the need to shorten the timeframe for external review decisions with the 2001 Task Force specifically recommending the reduction of the timeframe for external review decisions from 90 days to 60 days for hearings and 45 days for decisions if no hearings were involved. The 2006 Statutory Review Committee͛Ɛ recommendation for a tripartite model for the review process was not accepted by the provincial government.

Consultation

The primary concern raised by injured workers, advocates, and labour groups was the long wait time for external review.

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X. External Review Assessment

In response to the SZ ͛Ɛ ŝŶƋƵŝƌŝĞƐ ĂďŽƵƚ ƚŚĞ ůŽŶŐ ǁĂŝƚ ƚŝŵĞ ĨŽƌ ĂŶ ĞdžƚĞƌŶĂů ƌĞǀŝĞǁ͕ the WHSCRD identified a number of factors contributing to delays with respect to external reviews. Among them were:

A backlog of hearings from 2010 when a full complement of Review Commissioners was not in place

More complex compensation reviews

Challenges with scheduling multiple parties for a hearing

Difficulty achieving an efficient hearings͛ schedule due to postponement of hearings, withdrawal of applications, and requests for rescheduling.

Since 2010, there have been several changes at the WHSCRD that have contributed to improvements in client service and the efficient processing of reviews. These include the appointment by the provincial government of the full complement of Review Commissioners as well as the changes implemented by the WHSCRD such as the recruitment of staff for new positions and improvements to or the establishment of work processes for the management of applications and hearings. With these resources and improved processes in place, the WHSCRD indicates it is hearing new applications and working through the backlog.

Section 28(8) of the WHSC Act requires: A review commissioner shall communicate his or her decision, with reasons, to the person seeking the review, the commission and a person who appeared or made a submission on the review, within 60 days of the date of the application for review.

In practice, this timeline has not been achieved. However, a review of decisions posted on the WHSCRD website shows that the turnaround time in mid-­‐2013 for rendering decisions post hearing is getting shorter.

Based on its consultation with the WHSCRD, the SRC is satisfied that the WHSCRD has taken action to enable them to meet the current legislative timeline, as stated in section 28(8) of the WHSC Act͕ ĨŽƌ ĐŽŵŵƵŶŝĐĂƚŝŽŶ ŽĨ ƚŚĞ ƌĞǀŝĞǁ ĐŽŵŵŝƐƐŝŽŶĞƌ͛Ɛ ĚĞĐŝƐŝŽŶ ĂŶĚ ƚŽ address/eliminate the backlog of hearings.

However, the SRC recognizes there are two phases of the timeline for the external review process: from the date of application to the date of the hearing, and from the date of the hearing to the date of the decision. Both phases contribute to the extended timeline being experienced by injured workers, employers and the WHSCC and require management.

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X. External Review With this in mind, the SRC is recommending a time period for each phase. In addition to the changes made by the WHSCRD, other changes recommended in sections 10.3 and 10.5 of this report are expected to help shorten the timeframe for the external review process.

Recommendation

29. That the provincial government amend Section 28(8) of the WHSC Act to include: That a hearing must be held within 60 days of the application and that the decision must be rendered and communicated within 30 days after the date of the hearing, where there is no delay caused by any of the parties involved in the review, or the introduction of new evidence.

10.3 REPRESENTATION

Several advocates and injured workers indicated that injured workers require assistance to prepare for and be represented at external reviews.

While representation is not a requirement for participating in an External Review, injured workers or their dependents, or employers may choose to have a representative present their application.

At present, assistance for workers and employers with regard to external review is available from several sources:

Worker Advisors are available to help injured workers (union and non-­‐union workers) and/or their dependents throughout the internal review process and to apply for the external review. A similar service is available to employers through the Employer Advisors. These services are provided at no charge. Worker Advisors and Employer Advisors are not permitted to appear on behalf of workers or employers, respectively at the external review hearing.

Hearing Officers from the Members of the House of Assembly Office are available to assist workers and employers.

Labour representatives assist many injured workers, as shown by the t,^ Z ͛Ɛ statistics over the last five years.

Employers and workers can represent themselves, or engage external representation.

The WHSCRD reported to the SRC that the Client Service Representative is available to answer questions about the review process and to assist in preparation for the hearing

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X. External Review and the Appeals Officer supports clients to properly complete review applications, to ƵŶĚĞƌƐƚĂŶĚ ƚŚĞŝƌ ĨŝůĞ ĚŽĐƵŵĞŶƚƐ͕ t,^ Z ͛Ɛ ƉƌŽĐĞƐƐĞƐ͕ ĂŶĚ ĂǀĂŝůĂďůĞ ŶĞdžƚ ƐƚĞƉƐ ĂŶĚ follow up with regard to review options and decision implementation. The WHSCRD also provides a Client Service Manual (currently under review) and has published several brochures about the review process, which are available in print and on-­‐line.

Assessment

Many resources are available to provide assistance and representation to the workplace parties. The WHSCRD reports over the last five years, the number of workers and employers who appear unrepresented has declined.

The SRC is satisfied that sufficient assistance is available to injured workers and employers to be involved effectively in the external and internal review processes.

However, renewed efforts to educate and raise awareness of the workplace parties regarding the available assistance would be beneficial.

Recommendation

30. That the WHSCRD and the WHSCC undertake an educational initiative to raise the awareness of the workplace parties regarding available resources to assist and represent them at external reviews.

10.4 RECONSIDERATION

Under section 28.1 of the WHSC Act, a worker, their dependent, an employer or the WHSCC may apply to the Chief Review Commissioner requesting a reconsideration of a revieǁ ĐŽŵŵŝƐƐŝŽŶĞƌ͛Ɛ ĚĞĐŝƐŝŽŶ͘ As the WHSCRD notes in its brochure, Reconsideration Process: The reconsideration process must not be perceived as another level of review. A reconsideration of a WHSCRD decision is only granted under certain circumstances such as: {

{

{

The Review Commissioner failed to apply the appropriate sections of the WHSC [Act], regulations and/or policies.

When a Review Commissioner has exceeded the authority provided by the WHSC [Act] in relation to the matter under review.

A substantive defect in the decision-­‐making process which may affect the outcome has been identified.

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X. External Review Consultation

A labour group recommended that reconsideration, section 28.1(1) of the WHSC Act be removed from the appeals process, describing it as unhelpful and unnecessary.

Assessment

The WHSCRD reports it received 126 reconsideration requests over the last five years, on average 25 per year. Of these 126, 73% of the decisions were upheld. Injured workers initiated 45% of the requests, employers 11% and WHSCC 44%.

The WHSCRD can, through rules of procedure and evidence, set out the grounds upon which the Review Division will reconsider a decision. Under section 28.1(3) of the WHSC Act, the Review Commissioner has discretion to determine when reconsideration is appropriate.

The SRC is satisfied that reconsideration is a valuable part of the review process, providing an opportunity for review of disputed WHSCRD decisions when there may have been an error on matters of law.

10.5 INTERFACE BETWEEN INTERNAL AND EXTERNAL REVIEW

Assessment

As part of its consultations, the SRC met with the t,^ Z ƚŽ ĚĞƚĞƌŵŝŶĞ ƚŚĞ ŝǀŝƐŝŽŶ͛Ɛ experience within the workplace health and safety compensation system and to identify opportunities for improved service delivery to clients. Over the last several years, the WHSCRD has undergone significant changes to address client service delivery. SRC also met with the WHSCC to discuss their experience with processes that interface with the WHSCRD.

Based on consultation with the WHSCRD and the WHSCC, several areas for potential improvements in client service were identified such as the process for dealing with new information received prior to or during a hearing.

The SRC recognizes and respects the importance of the independence of WHSCC and WHSCRD. That said, it is clear that delays in the review process may be reduced with improved communication between the WHSCC and the WHSCRD.

Other jurisdictions such as British Columbia, Nova Scotia and New Brunswick have ŵŽĚĞůƐ ƚŚĂƚ ĨŽƌŵĂůůLJ ďƌŝŶŐ ƚŽŐĞƚŚĞƌ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ďŽĂƌĚ ĂŶĚ ƚŚĞ ĞdžƚĞƌŶĂů review organization to address quality service improvement issues to make the system

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X. External Review more efficient and effective for clients and to promote consistency in system processes.

For example, the ƌŝƚŝƐŚ ŽůƵŵďŝĂ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ Đƚ, section 234(7) requires ƚŚĞ ŚĂŝƌ ŽĨ ƚŚĞ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ƉƉĞĂů dƌŝďƵŶĂů ;t dͿ ƚŽ ŵĞĞƚ ǁŝƚŚ ƚŚĞ Board of Directors of the tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ŽĂƌĚ ŶŽ ůĞƐƐ ƚŚan four times a year ƚŽ ĚŝƐĐƵƐƐ ͞ŵĂƚƚĞƌƐ ŽĨ ĐŽŵŵŽŶ ŝŶƚĞƌĞƐƚ ĂŶĚ ŝŵƉŽƌƚĂŶĐĞ͘͟

The SRC concludes this model would be helpful to both parties to effect improvements in client service, but the model does not need be included in the WHSC Act.

Recommendation

31. That the WHSCC and the WHSCRD develop a formal mechanism whereby t,^ Z ͛Ɛ ŚŝĞĨ ZĞǀŝĞǁ ŽŵŵŝƐƐŝŽŶĞƌ ĂŶĚ t,^ ͛Ɛ ŚŝĞĨ džĞĐƵƚŝǀĞ KĨĨŝĐĞƌ (CEO) meet no less than twice a year to discuss matters that affect client service delivery. This would include: a. developing and implementing a process to review the effectiveness and efficiency of the interface between the WHSCRD and the WHSCC b. reviewing any common, emerging areas of concern which contribute to delays in information or decisions c. reviewing trends which may indicate any required changes, and d. reporting the results of the foregoing to the WHSCC Board of Directors and the appropriate government authority.

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XI. Financial Sustainability 11.1 INTRODUCTION

In 2000, the t,^ ͛Ɛ ĨŝŶĂŶĐŝĂů ƉŽƐŝƚŝŽŶ ǁĂƐ precarious, as the funded position had declined to 65.2% of the amount needed to ensure the benefits for injured workers in ƚŚĞ ĨƵƚƵƌĞ͘ ůů ƐƚĂŬĞŚŽůĚĞƌƐ ĂĐŬŶŽǁůĞĚŐĞĚ ƚŚĞ ŝŶĚĞƉĞŶĚĞŶƚ ĂĐƚƵĂƌLJ͛Ɛ ĂĚǀŝĐĞ ƚŚĂƚ ƚŚĞ system was heading toward financial collapse. In addition to the financial sustainability issues faced by its ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͕ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂĚŽƌ ŚĂĚ the highest lost time incident rate in Canada at the time. It is important to note that because of the financial crisis of 2000, employers in our province incurred and still have the highest assessment rate in Canada and the income replacement rate (IRR) for workers has remained unchanged.

dŚƌŽƵŐŚ ƚŚĞ ϮϬϬϭ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ dĂƐŬ &ŽƌĐĞ, all stakeholders came together in a plan that would ƌĞƚƵƌŶ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ƚŽ ͞Ă ĨĂŝƌ͕ ĂĨĨŽƌĚĂďůĞ ĂŶĚ ƐƵƐƚĂŝŶĂďůĞ ŝŶƐƵƌĂŶĐĞ ƐLJƐƚĞŵ͘͟ The provincial gŽǀĞƌŶŵĞŶƚ͛Ɛ ƐƵƉƉŽƌƚ ŝŶ ŵĂŬŝŶŐ ƚŚĞ necessary legislative changes helped turn the plan to action.

Employers were required to pay an average assessment rate of $3.24 along with a surcharge, which would result in the Injury Fund returning to a healthy position within an acceptable period of time.

Labour groups played a significant role in prevention education. Workers, labour groups, employers, the WHSCC, and the OSH Branch committed tremendous effort to reducing the injury rate. The WHSCC worked diligently with stakeholders and with actuarial and investment advisors to establish financial and investment policies that would take a long-­‐term approach to the management of the Injury Fund.

Continuing to improve the financial sustainability of the workplace health, safety and compensation system is affected by a number of critical factors:

Continued efforts in prevention by all stakeholders to reduce injuries and fatalities (i.e., reduce the injury experience)

Renewed focus and enhanced education and awareness on work to recover (Early and Safe Return to Work) for injured workers

Continued effort to reduce claim duration

Experience based assessment rates

Providing affordable benefits

Controlling costs by managing procurement initiatives

ĚŚĞƌĞŶĐĞ ƚŽ t,^ ͛Ɛ &ƵŶĚŝŶŐ WŽůŝĐLJ

ĚŚĞƌĞŶĐĞ ƚŽ t,^ ͛Ɛ /nvestment Policy.

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XI. Financial Sustainability

System sustainability is also affected by the growth of the assessment base (growth of the workforce and employers) and the nature of the industries active in the province.

The WHSCC is required by legislation to fund the operating costs of the OHS Branch and the WHSCRD. The WHSCC also reimburses the provincial government for a portion of the Labour Relations Agency͛Ɛ costs in administering the WHSC Act.

Consultation Summary

Concerns were raised about the following areas during the consultation sessions:

Employer assessment rates

Maximum Compensable Assessable Earnings (MCAE)

Income Replacement Rate (IRR)

&ŝƐŚ ŚĂƌǀĞƐƚĞƌƐ͛ workers compensation assessments

Self-­‐insured employers

PRIME

IRR for the ^ƚ͘ :ŽŚŶ͛Ɛ Fire Fighters͛ Association (SJFFA) and the Royal Newfoundland Constabulary Association (RNCA)

Pension replacement benefits (PRB)

Minimum compensation

Top-­‐up provisions

Compensation for seasonal workers.

11.2 EMPLOYER ASSESSMENT RATES

For this section (11.2 Employer Assessment Rates) and for the section that follows (11.3 Benefits), the SRC will first present the concerns raised regarding rates and benefits (Injury Fund, Assessment Rates, IRR and MCAE) and the information gleaned from the consultation process and additional research, and then provide an assessment and analysis. This is a departure from the format employed in other sections, but the SRC believes rates and benefits are inter-­‐related and thus a discussion of both is necessary to understand the context for future change.

dŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ĚĞƌŝǀĞƐ ŝƚƐ ƌĞǀĞŶƵĞ ĨƌŽŵ ƚŚĞ ĂƐƐĞƐƐŵĞŶƚƐ ƉĂŝĚ ďLJ employers and the investment of the Injury Fund.

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XI. Financial Sustainability 11.2.1 Injury Fund

As set out in the t,^ ͛Ɛ &ƵŶĚŝŶŐ WŽůŝĐLJ͕ ĂŐƌĞĞĚ ƚŽ ďLJ Ăůů ƐƚĂŬĞŚŽůĚĞƌƐ͕ the t,^ ͛Ɛ insurance system is fully funded when total assets equal or exceed total liabilities.33 To account for financial market volatility (risk) and investment returns, the Funding Policy has a funding target operating range from 100% to 120% of total assets to total liabilities with a funding target of 110%. In 2012, the funded position was 91.7%.

Financial sustainability is a critical objective of the WHSCC and the Funding Policy adopted in 2009 has helped in improving the funded position.

The deficiency in the funded position is amortized through a surcharge of $0.25 per ΨϭϬϬ ŽĨ ƉĂLJƌŽůů ŝŶ ĂĚĚŝƚŝŽŶ ƚŽ ƚŚĞ ĞŵƉůŽLJĞƌƐ͛ ĂƐƐĞƐƐŵĞŶƚ ƌĂƚĞƐ͘ /Ŷ ϮϬϭϮ, the total funding deficiency was $181 million compared to a funding deficiency of $159.5 million in 2011. The increase in the deficiency was the result of a market change and the accounting change to the International Financial Reporting ^ƚĂŶĚĂƌĚƐ ;/&Z^Ϳ͘ ͞dŚĞ ůĞŶŐƚŚ of the amortization period and the level of the surcharge will depend primarily on future investment performance of the Injury Fund, changes in the assessable payroll base and ĐůĂŝŵƐ ĐŽƐƚ ĞdžƉĞƌŝĞŶĐĞ͘͟34

11.2.2 Assessment Rates

In 2000, when the system was in financial crisis, the required rate was $4.00 (the average assessment rate was $3.24). Since 2006, the average assessment rate has remained at $2.75, despite increasing average claims costs and the global economic crisis of 2008.35

The SRC believes Atlantic Canada has reasonable similarities from a geographical, economic and industrial perspective and has used this region as the basis for its comparisons.

Table 1 presents the 2013 average assessment rates for each of the provinces in Atlantic Canada.

Table 1: 2013 Average Assessment Rate, AWCBC Province 2013 Newfoundland and Labrador $2.75 New Brunswick $1.44 Nova Scotia $2.65 Prince Edward Island $1.97 Average Assessment Rate in Atlantic Canada $2.20 33

WHSCC, 2012 Annual Performance Report (2013) 42.

WHSCC, 2012 Annual Performance Report (2013) 42.

34

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Consultation

In its submission, the NLEC stated: AfƚĞƌ ŶĞĂƌůLJ ƚǁŽ ĚĞĐĂĚĞƐ ŽĨ ƉĂLJŝŶŐ ƚŚĞ ŚŝŐŚĞƐƚ ĞŵƉůŽLJĞƌ ǁŽƌŬĞƌƐ͛ compensation insurance premiums of any province in Canada, together with four statutory reviews designed to fix this problem, multiple WHSCC strategic plans and multiple consultations to find solutions, the only ƌĞĂƐŽŶĂďůĞ ĐŽŶĐůƵƐŝŽŶ ŝƐ ƚŚĂƚ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͕ ĂƐ ŝƚ ŝƐ currently structured in our legislation, is incapable of providing competitive employer insurance premiums.36

Some employers also expressed concern about the impact of high assessment rates on their businesses.

11.3 BENEFITS

11.3.1 Maximum Compensable Assessable Earnings (MCAE)

A comparison of the average weekly earnings for 2012 and the MCAE for 2012 and 2013 for each of the provinces in Atlantic Canada is presented in Table 2.

Table 2: Jurisdictional Comparison of the Average Weekly Earnings (AWE) for 2012 with the MCAE Limit for 2012 and 2013 MCAE MCAE Province AWE 2012 2012 2013 % inc.

Newfoundland and Labrador $1,160 $52,885 $54,155 2.4% New Brunswick $974 $58,100 $59,500 2.4% Nova Scotia $884 $53,900 $54,400 0.9% Prince Edward Island $870 $49,300 $50,000 1.4%

New Brunswick and Newfoundland and Labrador adjust the MCAE for 100% of the Consumer Price Index (CPI), Nova Scotia adjusts for 50% of CPI, and Prince Edward Island for 80% of CPI.

Another factor to consider is the percentage of incomes below the MCAE. The WHSCC reported that in 2012, the percentage of incomes below the MCAE in Newfoundland and Labrador was 81% compared to 86% at the time of the 2006 Statutory Review period. New Brunswick at 85% is the only province in Atlantic Canada currently above 36

NLEC, Who wants to finish last? Recommendations to end two decades of the highest woƌŬĞƌƐ͛ compensation insurance premiums in Canada (April 2, 2013) 39.

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XI. Financial Sustainability Newfoundland and Labrador. The national average was 84% compared with 86% at the time of the previous Statutory Review.

11.3.2 Income Replacement Rate (IRR)

In Atlantic Canada, Nova Scotia, New Brunswick, and Prince Edward Island each have an 85% IRR and a two-­‐ or three-­‐day waiting period while Newfoundland and Labrador has an 80% IRR but no waiting period.

Table 3: Income Replacement Rates in Atlantic Canada % of Workforce Waiting Inflation Jurisdiction IRR Coverage Period Protection New Brunswick 85% 94.0 3 days CPI Prince Edward 85% 95.2 2 days 80% of CPI*, Island

max 4% Newfoundland 80% 97.6 None CPI and Labrador Nova Scotia 75% first 26 71.2 2 days 50% of CPI* weeks/85% from 27 weeks on

Consultation

Labour groups offered recommendations about increasing the maximum compensable assessable earnings (MCAE), including:

Increase MCAE to be at least equivalent to British Columbia at $75,500

Change the calculation of MCAE based on 150% of annual industrial aggregate wage for Newfoundland and Labrador

Eliminate the ceiling/eliminate maximum earnings cap

Allow exemptions from MCAE

Phase in increases to the ceiling over five years in addition to CPI.

Employer groups offered several recommendations regarding MCAE:

That MCAE not be increased

That increases in MCAE be in line with CPI

That maximum insurable earnings be kept as aligned as possible with provincial average yearly earnings.

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XI. Financial Sustainability

A number of labour groups recommended that the income replacement rate (IRR) be increased from 80% to 90% of net earnings or average earnings. An employer group stated that it would be irresponsible to recommend an increase in net benefits at this time.

Assessment for Employer Assessment Rates and Worker Benefits

ĨŝŶĂŶĐŝĂůůLJ ƐƵƐƚĂŝŶĂďůĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ƌĞƋƵŝƌĞƐ ĂĐƚŝǀĞ ĐŽůůĂďŽƌĂƚŝŽŶ among the WHSCC, and the two prime stakeholders, the NLFL and the NLEC to improve occupational health and safety in the workƉůĂĐĞ͘ /Ŷ ƚŚŝƐ ƌĞǀŝĞǁ͕ ƚŚĞ ^Z ͛Ɛ recommendations have focused on improvement in key areas of the system, which it believes will drive significant change and continued improvement of system performance. These areas are:

Improved participation in and outcomes from the early and safe return to work program

Improved occupational health and safety in workplaces through more engaged and effective OHS Committees, and greater collaboration between the WHSCC and the OHS Branch in prevention

Increased education and training

Improved claims management through new mechanisms within internal review, and between the WHSCC and the WHSCRD, including accountability processes.

The SRC believes improvements in these areas over the next five years will move the system forward in a responsible manner that is beneficial to workers, and sustainable and affordable for employers. By working together, workers and employers can achieve safe and healthy workplaces resulting in a continuing decline in work-­‐related injuries and claims.

The SRC recognizes there are jurisdictional variances in the percentage of workers covered, wait periods, inflation protection and coverage for high-­‐risk industries across the provinces in Atlantic Canada. The SRC has also considered the many system improvements implemented in the past 10 years. As a result of these changes, and coupled with the recommendations contained in this report, the SRC concludes that the WHSCC is in a position to achieve parity on income replacement rates (IRR) and employer annual assessment rates with the ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽn systems of the other provinces in Atlantic Canada and be on par with the highest maximum compensable assessable earnings (MCAE) in New Brunswick, Nova Scotia and Prince Edward Island.

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XI. Financial Sustainability Given the 10-­‐year decline in the lost time incident rate to a low of 1.6 per 100 workers, and the 91.7% funded position including a provision for latent occupational disease estimated at 7% of the benefit liability, the ^Z ƐƵƉƉŽƌƚƐ ƚŚĞ t,^ ͛Ɛ interest in reducing the average base assessment rate and increasing the maximum compensable assessable earnings.

Recommendation

32. That the WHSCC develop a plan to achieve and/or maintain parity with Atlantic Canada at the earliest opportunity within a five-­‐year period: a) That is based on a balanced approach to decreasing assessments and increasing benefits ĂŶŶƵĂůůLJ ƌĞǀŝĞǁĞĚ ďLJ ƚŚĞ t,^ ͛Ɛ ĂĐƚƵĂƌLJ ƚŽ determine the assessment rate adjustment and/or benefit improvements available b) dŚĂƚ ŵĂŝŶƚĂŝŶƐ ƚŚĞ ĨŝŶĂŶĐŝĂů ƐƵƐƚĂŝŶĂďŝůŝƚLJ ŽĨ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation insurance system by setting clear financial targets including the funding ratio and injury reduction rates being achieved prior to a reduction in assessment rates or benefit improvements c) That the income replacement rate (IRR) achieve parity with New Brunswick, Nova Scotia and Prince Edward Island (the current IRR in the Maritimes is about 85%) d) That the maximum compensable assessable earnings (MCAE) achieve parity with the province in Atlantic Canada having the highest rate (the highest MCAE currently in Atlantic Canada is $59,500) e) That the average assessment rate for Newfoundland and Labrador achieve parity with the average assessment rate of Atlantic Canada (the average assessment rate currently in Atlantic Canada is $2.20).

11.4 PRIME

Consultation

Several employer groups and employers indicated that the t,^ ͛Ɛ WZ/D ƉƌŽŐƌĂŵ ŝƐ not well suited to small and medium businesses, describing it as onerous. Suggestions for change included developing an incentive program that is more suitable to small and medium size businesses.

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XI. Financial Sustainability Assessment

The goal of the PRIME program is to provide financial incentives to employers based on their efforts to develop a workplace safety culture using effective practices in occupational health and safety and return to work. PRIME is designed to recognize employers for a consistently favourable claims experience and to address persistent and poor accident performance. PRIME employers who make safety improvements and reduce the incidence of injury can influence positively their assessment rate.

The WHSCC reports that the total number of claims for small and medium PRIME eligible employers was 1,711 for 2012, compared to 2,705 claims in 2008. The percentage of small and medium employers meeting the practice requirements increased from 24.4% in 2008 to 32.4% in 2012. Of those meeting the requirements, the percentage of SMEs receiving experience refunds has consistently trended upwards from 41.9% to 55% over the period of 2008 to 2012.

The SRC concludes that PRIME has had an influence in increasing small and medium ďƵƐŝŶĞƐƐĞƐ͛ awareness of prevention and safety. That said, there is a need for WHSCC to identify the potential for small and medium businesses to participate to a greater degree in PRIME.

For employers who are provincially regulated, the OHS Act requirements may exceed those for PRIME. This has been area of discussion and consideration since PRIME was introduced. The WHSCC provides health and safety advisors to help employers meet their full legislative requirements under the OHS Act. The SRC concludes that the WHSCC should review PRIME requirements to ensure it is in alignment with the OHS Act. There is sufficient experience with PRIME to effect such a change.

Recommendations

33. That the WHSCC review PRIME to identify ways to continue to increase the participation of small and medium businesses in the program.

34. That the WHSCC re-­‐align PRIME requirements to meet the OHS Act and its regulations.

11.5 &/^, , Zs ^d Z^͛ tKZ< Z^ KDW E^ d/KE ^^ ^^DENTS

Between 2008 and 2012, the average number of workers in the fish harvesting sector has decreased by 43% from 6,300 to 3,600 workers. During the same period, the lost

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XI. Financial Sustainability time incidence rate increased from 2.1 to 2.9.37 A high incidence of soft tissue injuries is noted for this sector. Over the last decade progress has been made with training fishing crews to respond to emergencies at sea, and in the consistent use of personal floatation devices. The Back Strong, Back Fishing program targets seasonally employed fish harvesters. Its focus is to educate them on maintaining a healthy back in the off-­‐season and it promotes safety practices in the work environment and proper lifting techniques.

In 2012, the Newfoundland and Labrador Fish Harvesting Safety Association (NL-­‐FHSA) was established to promote safety education and awareness initiatives to improve workplace safety in the fishing industry.

Consultation

Raising awareness of the high incidence and cost of lost time injuries and ensuring accountability for safe and healthy workplaces for the fish harvesting sector were ĐŽŵŵŽŶ ƵŶĚĞƌƉŝŶŶŝŶŐƐ ĨŽƌ ŵŽƐƚ ƐƚĂŬĞŚŽůĚĞƌƐ͛ ĐŽŵŵĞŶƚƐ ƌĞŐĂƌĚŝŶŐ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation assessments for harvesters.

Employers and employer groups made a number of suggestions with regard to fish ŚĂƌǀĞƐƚĞƌƐ͛ ǁŽƌŬĞƌƐ͛ compensation employer assessments ranging from fish harvesters paying their own assessments to making compensation coverage optional for small fish harvesting operations. One recommendation was for fish processors to continue to ĚĞĚƵĐƚ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ĞŵƉůŽLJĞƌ ĂƐƐĞƐƐŵĞŶƚƐ ĨŽƌ ĨŝƐŚ ŚĂƌǀĞƐƚĞƌƐ ĂŶĚ ƌĞŵŝƚ it to the WHSCC however the premium would be shown as a separate line item on the landed value of the catch.

Labour representatives said fish processors should continue tŽ ƉĂLJ ĨŝƐŚ ŚĂƌǀĞƐƚĞƌƐ͛ assessments.

Assessment

dŚĞ ^Z ŚĂƐ ƌĞǀŝĞǁĞĚ ƚŚĞ ƐƚĂŬĞŚŽůĚĞƌƐ͛ ƐƵŐŐĞƐƚŝŽŶƐ͘ KĨĨĞƌŝŶŐ ŽƉƚŝŽŶĂů ĐŽǀĞƌĂŐĞ ǁŽƵůĚ weaken the gains being made in prevention education and awareness and expose workers to greater risk, likely leading to an increased incidence of workplace injuries and increased compensation costs.

The SRC concludes that showing the amount of the assessment to the fish harvesters would, to a degree, raise their awareness of the cost associated with workplace injuries and health issues.

37

WHSCC Industry Fact Sheet 2012, Fish Harvesting Retrieved from http://www.whscc.nl.ca/forms.aspx?type=Publications

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XI. Financial Sustainability Recommendation

35. That the fish processors identify ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ĂƐƐĞƐƐŵĞŶƚs as a separate line item on the landed value of the catch but it should not result in any portion of payment by the fisher. Section 9 of the WHSC Regulations states: ͞ ƐƵŵ ƉĂLJĂďůĞ ŝŶ ĂƐƐĞƐƐŵĞŶƚƐ ƐŚĂůů ŶŽƚ ďĞ ĚĞĚƵĐƚĞĚ ĨƌŽŵ Ă ƉĂLJŵĞŶƚ ĚƵĞ ƚŽ Ă ĐŽŵŵĞƌĐŝĂů ĨŝƐŚĞƌ͘͟

11.6 SELF-­‐INSURED EMPLOYERS

Assessment

The SRC examined the effect of the t,^ ͛Ɛ ƉƌŽǀŝƐŝŽŶ ŽĨ ƐĞƌǀŝĐĞƐ ƚŽ ƐĞůĨ-­‐insured employers on the cost of the workers͛ compensation system. The WHSC Act, Section 110, allows WHSCC to enter into agreements with self-­‐insurers.

Ɛ ƌĞƉŽƌƚĞĚ ŝŶ ƚŚĞ t,^ ͛Ɛ 2012 Annual Performance Report, self-­‐insurers are principally federal and provincial government bodies, and they pay for the claims costs they incur and a share of administration costs.

At present, some contracts with self-­‐insured employers result in their paying less than their proportionate share of all the administration costs which are applicable to them.

As a result, an additional portion of administration costs are covered by insured employers.

Recommendation

36. That the WHSCC ensure that the new contracts negotiated with self-­‐insured employers result in their paying their proportionate share of all applicable administration costs.

11.7 IRR FOR THE ^d͘ :K,E͛^ FIRE FIGHTERS͛ ^^K / d/KE AND THE ROYAL NEWFOUNDLAND CONSTABULARY ASSOCIATION

Consultation

dŚĞ ^ƚ͘ :ŽŚŶ͛Ɛ &ŝƌĞ Fighters͛ Association (SJFFA) and the Royal Newfoundland Constabulary Association (RNCA) each recommended that they be entitled to the coverage afforded by section 79 of the WHSC Act, which states:

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XI. Financial Sustainability In the case of a worker suffering injury by accident arising out of and in the course of the employment while doing rescue work for the saving of human life in a mine or in an industry, or on the premises of either of them, during or immediately after an explosion, injury, fire or other catastrophe, the compensation payable in that case shall be calculated on the basis of 100% of net earnings instead of the percentages otherwise provided in this Act.

The SJFFA made the following recommendation to the SRC: [C]onsidering the unique circumstances surrounding the provision of fire and ĞŵĞƌŐĞŶĐLJ ƐĞƌǀŝĐĞƐ͕ ǁĞ͕ ƚŚĞ ^ƚ͘ :ŽŚŶ͛Ɛ &ŝƌĞ &ŝŐŚƚĞƌƐ ƐƐŽĐŝation, are requesting that Section 79 of the Workplace Health Safety and Compensation Act of Newfoundland and Labrador be applied to all fire fighters who are injured while responding to, and while engaged in, fire and emergency service activities at the same rate as other workers performing like duties; 100% of net pay.

The RNCA made the following recommendation to the SRC: In the case of police and peace officers who are injured, incidental to the apprehension of individuals, saving and protecting human life and property, the compensation payable be exempt from the maximum compensable benefit cap and shall be calculated on the basis of their pre-­‐injury net earnings of actual salary.

Assessment

The t,^ ͛Ɛ ƉŽůŝĐLJ EL-­‐01 Earnings Loss: Benefit Calculation states: ͙ workers who are expected to perform rescue activities as part of their regular occupation, such as firefighters, police officers, and emergency services personnel, are compensated based on the appropriate income replacement rate provided by section 74.38

In other words, these workers are not entitled to the 100% net pay under section 79.

The 2006 Statutory Review recommended that the provincial government amend the Act to provide wage loss benefits at 100% of net pre-­‐injury earnings for police officers, career firefighters, and correctional officers when injured while responding or engaged in an emergency situation where the potential for injury exceeds the normal protection offered under the Occupational Health and Safety Act. However, the provincial government did not accept this recommendation.

38

WHSCC Policy EL-­‐01 Earnings Loss: Benefit Calculation Retrieved from http://www.whscc.nl.ca/policiesandprocedures.whscc

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XI. Financial Sustainability The SRC notes there are other occupations where individuals may be at risk, including health care professionals and emergency responders. Extending 100% coverage to these occupations requires more extensive assessment than is possible at this time.

dŚĞ ^Z ͛Ɛ recommended changes to the IRR and MCAE, while not fully addressing the request by both the firefighters and the RNCA, will alleviate some of their concerns.

11.8 PENSION REPLACEMENT BENEFITS

Section 75 of the WHSC Act provides for payment of a pension replacement benefit (PRB) to injured workers who are in receipt of compensation benefits at age 65. The WHSCC reported to the SRC that entitlement is based on the amount that the worker demonstrates was lost under the Canada Pension Plan, the Quebec Pension Plan or a registered employer-­‐sponsored pension plan due to the injury.

Consultation

A labour group raised a concern with the calculation method used by the WHSCC for Pension Replacement Benefits.

Assessment

In response to inquiries by the SRC, the WHSCC indicated that due to the variety of pension plans and the unique nature of each application, an actuarial assessment is often required to determine the PRB.

Considering the variety of pension investment plans in the public and private sectors, the uncertain status of pensions going forward, and the differences in pension replacement benefits entitlement in other provinces, the SRC concludes that the pension replacement benefit program should be reviewed.

Recommendation

37. That the WHSCC undertake, in consultation with stakeholders, a review of the current Pension Replacement Benefit (PRB) program including an actuarial review and an analysis of other pension replacement models, and identify if changes are necessary to the program to ensure a pension replacement benefit that is fair and reasonable for injured workers, and financially sustainable and practical to administer.

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XI. Financial Sustainability 11.9 MINIMUM COMPENSATION

The WHSC Act was amended in 2001 to repeal the requirement for a minimum level of compensation to injured workers, as recommended by the 2001 Task Force on the basis ƚŚĂƚ ŝƚ ͞ĐĂŶ ĂĐƚ ĂƐ Ă ĚŝƐŝŶĐĞŶƚŝǀĞ ĨŽƌ ƐŽŵĞ ǁŽƌŬĞƌƐ ƚŽ ƌĞƚƵƌŶ ƚŽ ǁŽƌŬ ƋƵŝĐŬůLJ ͙͘ ΀ĂŶĚ΁ ŝƚ ŝƐ inconsistent with the basic wage-­‐ůŽƐƐ ƉƌŝŶĐŝƉůĞ ŽĨ ƌĞƉůĂĐŝŶŐ ůŽƐƚ ŝŶĐŽŵĞ͘͟

Consultation

Some injured workers requested minimum compensation. Some injured workers reported that when they moved to extended earnings loss (EEL), their compensation was adjusted and their income reduced. A labour group stated that minimum compensation was necessary to reduce the financial hardship.

Assessment

The SRC believes that minimum compensation payments are inconsistent with the principle of replacing lost earnings. The SRC is not recommending the re-­‐establishment of minimum compensation at this time.

11.10 TOP-­‐UP PROVISIONS

Section 81.1 of the WHSC Act prevents an employer and worker from entering an agreement that the employer could pay an amount in excess of the amount that the worker, as a result of an injury, receives as compensation under the Act.

Consultation

Several labour groups recommended that section 81.1 of the WHSC Act be repealed. An effect of this section of the Act is that unions are unable to negotiate with employers to pay a ǁŽƌŬĞƌ͛Ɛ ƉĞŶƐŝŽŶ ĂŶĚ ŽƚŚĞƌ ďĞŶĞĨŝƚƐ ǁŚĞŶ ĂŶ ŝŶũƵƌĞĚ ǁŽƌŬĞƌ ŝƐ ƌĞĐĞŝǀŝŶŐ ǁŽƌŬĞƌƐ͛ compensation benefits. Injured workers must pay for these benefits.

Assessment

The SRC is not recommending the re-­‐establishment of top-­‐up at this time.

11.11 COMPENSATION FOR SEASONAL WORKERS

Seasonal workers or temporary/contract workers are employees who are employed on a short term, or periodic basis that is non-­‐permanent. This work may be tied to specific

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XI. Financial Sustainability seasons such as summer and fall, to specific projects, to term replacements for permanent employees, or to industries that are subject to work shortage layoffs.

Consultation

Several employer groups ƌĞĐŽŵŵĞŶĚĞĚ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ďĞŶĞĨŝƚƐ be calculated differently for seasonal workers than for permanent, full-­‐time workers. The employer groups proposed ƚŚĂƚ ƐĞĂƐŽŶĂů ǁŽƌŬĞƌƐ͛ ŝŶĐŽŵĞ ƐŚŽƵůĚ ƌĞĨůĞĐƚ ƚŚĞŝƌ ŵƉůŽLJŵĞŶƚ Insurance (EI) benefits, and recommended the WHSCC implement an offset to EI benefits in the same way Canada Pension Plan (CPP) benefits are offset.

An employer group specifically recommended that the WHSCC adopt the model used by ƚŚĞ ůďĞƌƚĂ tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ŽĂƌĚ ƚŽ ĐĂůĐƵůĂƚĞ ďĞŶĞĨŝƚƐ ĨŽƌ ƐĞĂƐŽŶĂů ǁŽƌŬĞƌƐ͘

ŵƉůŽLJĞƌƐ ƐƚĂƚĞĚ ƚŚĂƚ ƐĞĂƐŽŶĂů ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐŚŽƵůĚ ďĞ ŶŽ ŐƌĞĂƚĞƌ ƚŚĂŶ ŝĨ ƚŚĞ injury had not occurred in the first place.

Assessment

The SRC finds that the current method of calculating compensation rates may provide either an advantage or disadvantage to a seasonal worker, depending on when an injury is reported in the employment cycle.

dŚĞ t,^ ͛Ɛ Form 7: The Employers Report of Injury already provides for identification of seasonal workers. Employers need to be more diligent in identifying seasonal workers.

The SRC reviewed both the WHSC Act and the WHSCC policy relating to this issue.

Section 80.(1) of the WHSC Act states: Average weekly earnings shall be calculated on the basis of (a) the amount earned in the period of 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; or (b) the rate of daily, weekly, monthly or other regular remuneration that the worker was receiving at the beginning of the loss of earnings as a result of the injury, whichever, in the opinion of the commission, seems more equitable.

WHSCC Policy EL-­‐01 Earnings Loss: Benefit Calculation also states: An equitable earnings loss benefit rate is one which is fair and reasonable considering all the circumstances of a particular case. It is very important that each case is judged on its own merit when determining an equitable compensation rate, since many cases will not conform to usual circumstances.

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XI. Financial Sustainability Consideration must be given to the worker's employment history, employment status with the accident employer, etc. Care must be taken to ensure an ongoing, objective assessment of the loss of earning capacity due to the compensable injury.39

The SRC concludes that a fair and equitable rate of compensation for seasonal and other non-­‐permanent workers can be achieved under the current legislation and policies.

Recommendation

38. That the WHSCC review its practice and policy if necessary to ensure that seasonal and other non-­‐permanent workers are compensated on a fair and equitable basis including during the first 13 weeks of the claim.

39

WHSCC Policy EL-­‐01 -­‐ Earnings Loss: Benefit Calculation Retrieved from http://www.whscc.nl.ca/policiesandprocedures.whscc

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XII. Governance

12.1 INTRODUCTION

Statutory reviews must be conducted every five years by a Statutory Review Committee as required by section 126 of the WHSC Act.

The last two Statutory Reviews were conducted in 2001 and 2006. The 2001 Review was conducted by the Board of Directors of WHSCC, chaired by the Chair of the Board of WHSCC, and its primary focus was to deal with the financial crisis related to the deficiency in the injury fund which was precipitated by a growth in injury rates and insufficient assessment premiums being collected.

The 2006 Review was conducted by an independent chair with a co-­‐chair, and representatives from the community, labŽƵƌ͕ ĞŵƉůŽLJĞƌƐ ĂŶĚ ƚŚĞ t,^ ͛Ɛ ŽĂƌĚ ŽĨ Directors. Primarily, the 2006 Review dealt with matters of management, legislation and operational issues with rĞƐƉĞĐƚ ƚŽ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘ dŚĞƐĞ ĂŶĚ ŽƚŚĞƌ issues were addressed through the public consultation process.

Consultation Summary

In 2010, the WHSCC and the prime stakeholders ʹ the NLFL and the NLEC ʹ came together to review and revise the approach to the statutory review process. Together, they developed a more streamlined process with a focus on critical issues reflecting the ĐƵƌƌĞŶƚ ŶĞĞĚƐ ŽĨ ƐƚĂŬĞŚŽůĚĞƌƐ ĂŶĚ ƐƵƉƉŽƌƚŝŶŐ Ă ŵŽƌĞ ĞĨĨŝĐŝĞŶƚ ƌĞƐƉŽŶƐĞ ƚŽ ǁŽƌŬĞƌƐ͛ compensation matters.

The three organizations agreed to a number of changes including the overall design of the review process, restructuring of the composition of the committee, reduction in the size of the committee, and a proposed response time from government.

The 2012 Statutory Review Committee was comprised of a three-­‐person committee representing the NLEC, the NLFL and WHSCC. The chair of the SRC was the WHSCC representative. The stakeholders discussed the length of time between statutory reviews. The concept of a six year term was given positive consideration; however no firm consensus was reached.

The provincial government further enhanced the review by proposing a two-­‐phased consultation process. The first phase was a technical review of the legislation conducted by legal experts and the second was a public consultation process to review the ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘

The provincial government requested that the SRC evaluate and comment on the current model with respect to its efficiency and viability.

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XII. Governance

Assessment

Phase One was an important addition to the statutory review process since the WHSC Act had not been reviewed in its entirety since 1980. The SRC concludes that carrying out a more frequent technical review of the legislation including a jurisdictional analysis would keep the legislation up-­‐to-­‐date and incorporate best practices.

A benefit of more frequent technical legislative reviews would be a reduction in the length of time required to conduct the statutory review process. The SRC agrees that the public consultation phase is valuable and should remain as an element of the review process. The level of public interest should dictate the consultation locations as well as the number of consultations required.

The SRC confirms that this model with representation from the prime stakeholders provides for a balanced approach to dealing with issues and concerns raised for the ^Z ͛Ɛ ĐŽŶƐŝĚĞƌĂƚŝŽŶ͘

The addition of an independent non-­‐voting chair to the current committee structure of a representative from the WHSCC͛Ɛ ŽĂƌĚ ŽĨ ŝƌĞĐƚŽƌƐ, and a nominated representative from each of the NLFL and ƚŚĞ E> ǁŽƵůĚ ĨƵƌƚŚĞƌ ĞŶŚĂŶĐĞ ƚŚĞ ^Z ͛Ɛ ƉŽƚĞŶƚŝĂů ĨŽƌ quality deliberations and recommendations. The SRC supports the nominations of individuals who have knowledge of and experience with ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ system.

The SRC concludes that extending the duration between statutory reviews to six years provides a greater time frame to implement and evaluate the effects of previous statutory review recommendations.

The pre-­‐consultation phase to develop the scope and themes of the review has significant value in guiding the focus of the statutory review process.

Recommendations

39. That the provincial government retain the current committee model for the statutory review process with the addition of a fourth committee member as an independent non-­‐voting chair.

40. That the provincial government ensure that the WHSCC and the two prime stakeholders be represented by decision-­‐makers who are knowledgeable about the worŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘

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XII. Governance 41. That the provincial government extend the term of the statutory review to six years with pre-­‐consultation between the WHSCC and the prime stakeholders to commence in the fifth year of the review cycle.

42. That the provincial government ensure a technical review of the legislation is conducted every 12 years or every second statutory review.

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XIII. Summary of Recommendations The Statutory Review Committee submits the following recommendations to the provincial government on completion of its review process.

Prevention ʹ Education and Training

1. That the WHSCC a) adopt a broader approach to delivering education and training for prevention including using technology, b) encourage awareness of occupational health and safety in post-­‐secondary programs, and c) integrate Occupational Health and Safety (OHS) standards in all OHS training programs.

2. That the WHSCC collaborate with the Safety Sector Councils to identify opportunities to develop and deliver sector-­‐based safety training.

3. That the WHSCC organize an annual series of learning symposia to provide an opportunity for knowledge sharing, to recognize the innovative approaches implemented by employers and workers, and to promote champions of workplace health and safety in the province.

4. That the WHSCC and the OHS Branch develop a supervisory training certification standard including competency requirements for hazard recognition, evaluation and control.

PreventionͶOHS Branch and WHSCC

5. That the WHSCC continue to promote the development of safety sector councils as an important component of prevention and to encourage collaboration among safety sector councils to explore increased strategic mandates for prevention and safety in the workplace.

6. That the OHS Branch remain separate from the WHSCC.

7. That the provincial government determine the potential for the OHS Branch to be an independent agency as a branch of the public service under the management and control of a Chief Operating Officer, similar to the Government Purchasing Agency and the Labour Relations Agency.

8. That the Chief Executive Officer of the WHSCC and the Assistant Deputy Minister responsible for the OHS Branch collaborate to develop a framework for efficient ƵƐĞ ŽĨ ďŽƚŚ ŽƌŐĂŶŝnjĂƚŝŽŶƐ͛ ƌĞƐŽƵƌĐĞƐ͕ ŝŶ ĐŽŽƌĚŝŶĂƚŝng a targeted approach to high risk, high priority workplaces resulting in improved occupational health and safety outcomes and addressing service delivery issues common to both organizations.

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XIII. Summary of Recommendations 9. That the WHSCC and the OHS Branch establish a committee to address joint ŝŶŝƚŝĂƚŝǀĞƐ ƚĂƌŐĞƚŝŶŐ ŚŝŐŚ ƌŝƐŬ͕ ŚŝŐŚ ƉƌŝŽƌŝƚLJ ǁŽƌŬƉůĂĐĞƐ ĂŶĚ ƚŚĂƚ ƚŚĞ t,^ ͛Ɛ ŚŝĞĨ Executive Officer and the Assistant Deputy Minister responsible for the OHS ƌĂŶĐŚ ƐŚŽƵůĚ ƌĞƉŽƌƚ ŽŶ ƚŚĞƐĞ ŝŶŝƚŝĂƚŝǀĞƐ ƚŽ ƚŚĞ t,^ ͛Ɛ ŽĂƌĚ ŽĨ ŝƌĞĐƚŽƌƐ Ănd the Ministers responsible semi-­‐annually.

10. dŚĂƚ ĂŶ ĞǀĂůƵĂƚŝŽŶ ŽĨ ƚŚĞ ĞĨĨĞĐƚŝǀĞŶĞƐƐ ŽĨ ƚŚĞ K,^ ƌĂŶĐŚ ĂŶĚ ƚŚĞ t,^ ͛Ɛ collaboration be conducted by an independent consultant within two years of establishing the framework and the Committee identified in recommendations 8 and 9.

11. That the WHSCC make the oversight and assessment of OHS Committee activity and minutes a priority. The WHSCC should monitor closely whether risks identified by the OHS Committee have been appropriately addressed in a timely manner by the employer and if not, intervene, or request that the OHS Branch intervene.

12. That the requirement for OHS Committees for an employer with multi-­‐site workplaces which are in close proximity with each other (e.g., in the same building or adjacent buildings) be practically applied so that the number of OHS Committees are not so numerous that they become ineffective and inefficient.

13. That the WHSCC and the OHS Branch ensure hazard recognition, evaluation and control are emphasized in the OHS Committee training certification standard.

14. That the review of the OHS Committee Program include the following: a) Develop a memorandum of understanding between the WHSCC and the OHS Branch with a clear definition of their roles and responsibilities, jointly and severally, in supporting OHS Committees. b) Implement appropriate refresher training for OHS Committee members. c) Revise the OHS Committee Minutes form in a manner which ensures that longstanding issues or those critical to the health and safety of workers in the workplace are flagged and can be appropriately monitored by the WHSCC and/or the OHS Branch. d) Identify opportunities and approaches to support the engagement of OHS Committees by providing health and safety information such as bulletins on hearing loss/noise on a regular basis to them. e) Identify key performance indicators that measure the effectiveness of OHS Committees and report them to the WHSCC͛Ɛ Board of Directors within six months after receiving direction from the provincial government regarding this recommendation.

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XIII. Summary of Recommendations Claims Management

15. That the WHSCC emphasize face-­‐to-­‐face or telephone communication as the first approach for providing information to injured workers with the use of electronic (web-­‐based) and printed material as a supplement.

16. That the WHSCC amend its policy EN-­‐11 ʹ Investigations to codify current practice of the WHSCC as informed by the guidelines from the Office of the Privacy Commissioner of Canada (OPCC) on the collection and use of video evidence.

17. That the WHSCC identify ways to resolve disputes regarding medical aids when the cost variance is minimal and the result would be a more expeditious, efficient, and cost effective resolution of the claim.

Medical Management

18. That the WHSCC discuss disability management guidelines with injured workers and employers on the initiation of the claim to facilitate planning for early and safe return to work and to ensure the injury is understood in terms of normal recovery times while recognizing individual recovery times may vary from the guidelines.

Occupational Disease

19. That the WHSCC assess and improve its information and communications approaches with respect to occupational disease, and this would include the WHSCC: a) reviewing its information materials regarding the claims process for occupational disease and update its website and printed materials accordingly b) evaluating its process to identify barriers to communication and ŝŶĨŽƌŵĂƚŝŽŶ ƐŚĂƌŝŶŐ ƚŽ ĞŶƐƵƌĞ ĐůŝĞŶƚƐ ĐĂŶ ŶĂǀŝŐĂƚĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system as easily as possible c) using a collaborative approach, with industry employers, labour, the OHS Branch, and related safety sector councils, develop and deliver to employers, workers and their families, targeted information sessions on occupational disease risks in industries and regions of the province where there is a history of occupational disease or an identified risk of occupational disease.

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XIII. Summary of Recommendations ϮϬ͘ dŚĂƚ ƚŚĞ 'ŽǀĞƌŶŵĞŶƚ ŽĨ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂĚŽƌ ĞŶĂĐƚ Ă ƐĞƉĂƌĂƚĞ ĨŝƌĞĨŝŐŚƚĞƌƐ͛ compensation act applicable to career (employed/paid) firefighters, and a) Include in the act a rebuttable presumptive clause for recognized cancers and latency periods and that the government be guided by the list ƉƌĞƐĞŶƚĞĚ ŝŶ ^ĐŚĞĚƵůĞ ĨƌŽŵ ƚŚĞ EĞǁ ƌƵŶƐǁŝĐŬ͛Ɛ &ŝƌĞĨŝŐŚƚĞƌƐ͛ Compensation Act as attached b) Outline that a claim be adjudicated under the WHSC Act first, and if ƌĞũĞĐƚĞĚ͕ ƚŚĞ ĐůĂŝŵ ƐŚŽƵůĚ ƚŚĞŶ ďĞ ĂĚũƵĚŝĐĂƚĞĚ ƵŶĚĞƌ ƚŚĞ ĨŝƌĞĨŝŐŚƚĞƌƐ͛ compensation act c) Establish a separate, sustainable fund that is fully funded by the municipalities that employ career firefighters and is based on an actuarial assessment d) Support the fund with the existing occupational disease fund until such time as it is fully funded by the municipalities e) Establish an appropriate Fund Policy with ƚŚĞ ĂƐƐŝƐƚĂŶĐĞ ŽĨ ƚŚĞ t,^ ͛Ɛ actuary which includes subjecting the fund to an annual review by the t,^ ͛Ɛ ĂĐƚƵĂƌLJ ĂŶĚ ǁŚŝĐŚ ƌĞƋƵŝƌĞƐ ƚŚĞ t,^ ƚŽ ĂĚŵŝŶŝƐƚĞƌ ƚŚĞ ĨƵŶĚ͘ ^ĐŚĞĚƵůĞ ͗ EĞǁ ƌƵŶƐǁŝĐŬ ZĞŐƵůĂƚŝŽŶ ƵŶĚĞƌ ƚŚĞ &ŝƌĞĨŝŐŚƚĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ Đƚ Disease and conditions Length of service Primary site brain cancer 10 years Primary site bladder cancer 15 years Primary site colorectal cancer 20 years Primary site oesophageal cancer 25 years A primary leukemia 5 years Primary site lung cancer (in a person who has not 15 years smoked cigarettes for a minimum of 10 years before the initial diagnosis) Primary site kidney cancer 20 years A primary non-­‐,ŽĚŐŬŝŶ͛Ɛ ůLJŵƉŚŽŵĂ 20 years Primary site testicular cancer 20 years Primary site ureter cancer 15 years

21. That the WHSCC and the OHS Branch continue surveillance and monitoring of high risk environments including the collection and analysis of data to ensure an evidence-­‐based foundation for the development of strategic initiatives targeting the prevention of occupational disease.

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XIII. Summary of Recommendations Early and Safe Return to Work

22. That the WHSCC, in consultation with the NLEC and the NLFL, develop an ESRTW education program they would jointly promote along with the Safety Sector Councils. This program should convey the importance of ESRTW to workers and employers and clearly identify the roles of the worker, employer, health care providers, and the WHSCC in the ESRTW program. This program should be available to employers and workers without a course fee.

23. That the WHSCC consider the development of a training certification standard for early and safe return to work.

24. That the WHSCC evaluate the ESRTW program in light of the new information available and revise the program to ensure there is meaningful cooperation between the employer and the worker in the development of an effective ESRTW plan, and ensure: a) dŚĂƚ ƚŚĞ ^Zdt ƉůĂŶ ŝƐ ŝŵƉůĞŵĞŶƚĞĚ ŽŶ Ă ƚŝŵĞůLJ ďĂƐŝƐ ĂƐ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ functional abilities allow, with the objective being to progress through the Hierarchy of Return to Work b) That employers are meeting the legislative requirement to re-­‐employ up to the point of undue hardship.

25. That the WHSCC develop key performance indicators for return to work outcomes and at a minimum track and report on each of the following outcomes: the level of return to the pre-­‐injury job, return to essential duties of pre-­‐injury job, return to suitable work, return to alternate work, and did not return to work but had the capacity to work.

Labour Market Re-­‐Entry

26. That the WHSCC review the occupational classification component of the Labour Market Re-­‐entry (LMR) Assessment and ensure service providers clearly communicate the process to injured workers. Further, the WHSCC should ensure that recommended occupational classifications and the occupations that are identified within those classifications are suitable for the injured worker and are relevant to where the injured worker lives in the province.

27. That the WHSCC continue building on the improvements implemented through the 2010 Labour Market Re-­‐entry Program Quality Improvement Plan, and embark on a second phase to ensure a thorough review of the services and assistance

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XIII. Summary of Recommendations available to workers referred to the Labour Market program is carried out and to make any necessary improvements which arise from the review.

Internal Review

28. That the WHSCC should use its discretion to determine the scope of the internal review process regarding the use of interviews, meetings, and requests for further details on a case-­‐by-­‐case basis, and that the WHSCC should undertake a review of its Internal Review policy, work process, accountability and resourcing to ensure it is aligned with this initiative.

External Review

29. That the provincial government amend Section 28(8) of the WHSC Act to include: That a hearing must be held within 60 days of the application and that the decision must be rendered and communicated within 30 days after the date of the hearing, where there is no delay caused by any of the parties involved in the review, or the introduction of new evidence.

30. That the WHSCRD and the WHSCC undertake an educational initiative to raise the awareness of the workplace parties regarding available resources to assist and represent them at external reviews.

31. That the WHSCC and the WHSCRD develop a formal mechanism whereby t,^ Z ͛Ɛ ŚŝĞĨ ZĞǀŝĞǁ ŽŵŵŝƐƐŝŽŶĞƌ ĂŶĚ t,^ ͛Ɛ ŚŝĞĨ džĞĐƵƚŝǀĞ KĨĨŝĐĞƌ ; KͿ meet no less than twice a year to discuss matters that affect client service delivery.

This would include: a) developing and implementing a process to review the effectiveness and efficiency of the interface between the WHSCRD and the WHSCC b) reviewing any common, emerging areas of concern which contribute to delays in information or decisions c) reviewing trends which may indicate any required changes, and d) reporting the results of the foregoing to the WHSCC Board of Directors and the appropriate government authority.

Financial Sustainability

32. That the WHSCC develop a plan to achieve and/or maintain parity with Atlantic Canada at the earliest opportunity within a five-­‐year period:

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XIII. Summary of Recommendations a) That is based on a balanced approach to decreasing assessments and ŝŶĐƌĞĂƐŝŶŐ ďĞŶĞĨŝƚƐ ĂŶŶƵĂůůLJ ƌĞǀŝĞǁĞĚ ďLJ ƚŚĞ t,^ ͛Ɛ ĂĐƚƵĂƌLJ ƚŽ determine the assessment rate adjustment and/or benefit improvements available b) dŚĂƚ ŵĂŝŶƚĂŝŶƐ ƚŚĞ ĨŝŶĂŶĐŝĂů ƐƵƐƚĂŝŶĂďŝůŝƚLJ ŽĨ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ insurance system by setting clear financial targets including the funding ratio and injury reduction rates being achieved prior to a reduction in assessment rates or benefit improvements c) That the income replacement rate (IRR) achieve parity with New Brunswick, Nova Scotia and Prince Edward Island (the current IRR in the Maritimes is about 85%) d) That the maximum compensable assessable earnings (MCAE) achieve parity with the province in Atlantic Canada having the highest rate (the highest MCAE currently in Atlantic Canada is $59,500) e) That the average assessment rate for Newfoundland and Labrador achieve parity with the average assessment rate of Atlantic Canada (the average assessment rate currently in Atlantic Canada is $2.20).

33. That the WHSCC review PRIME to identify ways to continue to increase the participation of small and medium businesses in the program.

34. That the WHSCC re-­‐align PRIME requirements to meet the OHS Act and its regulations.

35. dŚĂƚ ƚŚĞ ĨŝƐŚ ƉƌŽĐĞƐƐŽƌƐ ŝĚĞŶƚŝĨLJ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ĂƐƐĞƐƐŵĞŶƚƐ ĂƐ Ă ƐĞƉĂƌĂƚĞ line item on the landed value of the catch but it should not result in any portion of payment by the fisher. Section 9 of the WHSC RegulĂƚŝŽŶƐ ƐƚĂƚĞƐ͗ ͞ ƐƵŵ ƉĂLJĂďůĞ ŝŶ ĂƐƐĞƐƐŵĞŶƚƐ ƐŚĂůů ŶŽƚ ďĞ ĚĞĚƵĐƚĞĚ ĨƌŽŵ Ă ƉĂLJŵĞŶƚ ĚƵĞ ƚŽ Ă ĐŽŵŵĞƌĐŝĂů ĨŝƐŚĞƌ͘͟

36. That the WHSCC ensure that the new contracts negotiated with self-­‐insured employers result in their paying their proportionate share of all applicable administration costs.

37. That the WHSCC undertake, in consultation with stakeholders, a review of the current Pension Replacement Benefit (PRB) program including an actuarial review and an analysis of other pension replacement models, and identify if changes are necessary to the program to ensure a pension replacement benefit that is fair and reasonable for injured workers, and financially sustainable and practical to administer.

38. That the WHSCC review its practice and policy if necessary to ensure that seasonal

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XIII. Summary of Recommendations and other non-­‐permanent workers are compensated on a fair and equitable basis including during the first 13 weeks of the claim.

Governance

39. That the provincial government retain the current committee model for the statutory review process with the addition of a fourth committee member as an independent non-­‐voting chair.

40. That the provincial government ensure that the WHSCC and the two prime stakeholders be represented by decision-­‐makers who are knowledgeable about thĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ͘

41. That the provincial government extend the term of the statutory review to six years with pre-­‐ consultation between the WHSCC and the prime stakeholders to commence in the fifth year of the review cycle.

42. That the provincial government ensure a technical review of the legislation is conducted every 12 years or every second statutory review.

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PART TWO

The 2013 SRC Response to the Legal Review of the WHSC Act

Workplace Health, Safety and Compensation 2013 Statutory Review Committee

I. Introduction

The Government of Newfoundland and Labrador appointed a Statutory Review Committee (SRC) ƚŽ ĞdžĂŵŝŶĞ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ ƐLJƐƚĞŵ ŝŶ ƚŚĞ ƉƌŽǀŝŶĐĞ ĂƐ ƌĞƋƵŝƌĞĚ ďLJ ƚŚĞ Workplace Health, Safety and Compensation (WHSC) Act (RSNL 1990, Chapter W-­‐11). This review was comprised of two phases: a technical review of the WHSC Act and a public stakeholder consultation phase. As part of meeting its requirements, the SRC is submitting this report as its final response to the results of the technical review.

The SRC commissioned legal experts, Laurel Courtenay, WorkSafe BC and Douglas R. Mah, WCB-­‐ Alberta, to conduct a comprehensive review of the WHSC Act to ensure it reflected the current practices of the WHSCC and best practices embodied in similar legislation in place in other provinces. Their report, A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11 (2013), presented in Appendix A and referenced as the Legal Review, provides the first comprehensive review of the WHSC Act in Newfoundland and Labrador since 1983.

dŚĞ ƚĞĐŚŶŝĐĂů ĂĚǀŝƐŽƌƐ͛ ƌĞƉŽƌƚ ĂĚĚƌĞƐƐĞĚ ŝƐƐƵĞƐ ƌĞůĂƚŝŶŐ ƚŽ ŐŽǀĞƌŶĂŶĐĞ ĂŶĚ ŝŶĚĞƉĞŶĚĞŶĐĞ͕ prevention mandate, the appeal process, financial sustainability, occupational disease, and employer accountability, among other matters. The technical advisors also offered a thorough analysis of the current Act͛Ɛ ƉƌŽǀŝƐŝŽŶƐ ǁŝƚŚ ƌĞƐƉĞĐƚ ƚŽ ƚŚĞ ĞdžƚĞƌŶĂů ƌĞǀŝĞǁ ĚŝǀŝƐŝŽŶ͛Ɛ ƌŽůĞ ĂŶĚ practice. Along with undertaking the jurisdictional and best practices review, the technical advisors were tasked with implementing a gender based analysis of the Act, identifying any potential errors, anomalies, or omissions, and presenting any opportunities for reducing red tape and improving readability.

The technical advisors completed a comprehensive review of the WHSC Act, providing 64 recommendations detailing specific changes to provincial legislation and suggesting a number of areas where additional work is required.

In an interim report to the provincial government, the SRC identified the recommendations with which they agreed and those that required further consideration and consultation during the phase two public consultation process. These topics included the WHSCC͛Ɛ Board of DŝƌĞĐƚŽƌƐ͛ roles and responsibilities; matters regarding the Workplace Health, Safety and Compensation Review Division and the Occupational Health and Safety (OHS) Branch; confidentiality and privacy; and the statutory review process. Following the conclusion of the consultative phase, the SRC prepared its final report. The SRC also considered recommendations for legislative amendment submitted by the WHSCRD as well as addressing a housekeeping amendment brought forward by the WHSCC.

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I. Introduction Assessment

After careful consideration, the SRC accepted many of the recommendations and suggestions of the technical advisors. A number of changes recommended by the technical advisors, and agreed to by the SRC, support congruency of language and terminology, or they offer more clearly written clauses for inclusion. Other recommendations provide for more substantive changes. The technical advisors noted in the introduction of their report that the review has been ͞the first section by section review of the Act since 1983 and the first expert technical ƌĞǀŝĞǁ ƐŝŶĐĞ ŝƚƐ ŝŶĐĞƉƚŝŽŶ ŝŶ ϭϵϱϮ͘͟ They further noted that previous amendments and consolidations of the Act have occurred on a piecemeal basis and this leads to a ͞ĚŝƐũŽŝŶƚĞĚ͕ inconsistent statute that contains inaccuracies, errors, and anachronisms.͟40

The technical advisors considered existing practices at the WHSCC and/or best practices ŐůĞĂŶĞĚ ĨƌŽŵ ŽƚŚĞƌ ƉƌŽǀŝŶĐĞƐ͛ ůĞŐŝƐůĂƚŝŽŶ͘ dŚĞ SRC concludes the Legal Review offers a sound blueprint for the process of redrafting the WHSC Act.

Recommendation

1) The SRC recommends that the provincial government rewrite the WHSC Act to incorporate the changes and updates with which the SRC has agreed.

The ^Z ͛Ɛ ƌĞĐŽŵŵĞŶĚĂƚŝŽŶƐ ĂŶĚ commentary were added to the tables provided by the technical advisors which outline the issue description, the page references in the Legal Review, and the relevant sections of the WHSC Act under consideration. The SRC also numbered the recommendations offered by the technical advisors for ease of reference.

The SRC has included two addenda: 1) a review of proposed changes affecting the work processes of the Workplace Health, Safety and Compensation Review Division (WHSCRD) and 2) a drafting error in the WHSC Act identified by the WHSCC. The recommendations arising from the addenda are:

2) That the WHSCRD, as permitted under section 27. (1) of the WHSC Act, develop rules of procedure and evidence which comply with the intent of the legislation, and that the provincial government support this initiative.

3) That the provincial government amend section 74.1(1.1) to correct a drafting error and ensure it reads thusly: 74.1 (1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annual to his or her estimated annual earnings prior to 40

Courtenay, Laurel and Mah, Douglas, A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11 (2013), ( 2012) iv.

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I. Introduction the commencement of his or her loss of earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

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II. HOUSEKEEPING Section II Housekeeping refers to pages 102 to 109 in A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11). The technical advisors identified in this section other areas for consideration that would strengthen the WHSC Act; while they are important, they are less immediate in terms of priority for action compared to the recommendations in Section IV: Summary of Recommendations.

Section Number PART I 2 (1) (j) (vi)

THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION

ĞĨŝŶŝƚŝŽŶ ŽĨ ͞ĞŵƉůŽLJĞƌ͟ʹ Provincial Crown as ͞ĞŵƉůŽLJĞƌ͟

ACCEPTED

x

ĞůĞƚĞ ƚŚĞ ǁŽƌĚ ͞ƉĞƌŵĂŶĞŶƚ͖͟

x

Consider using language similar to the ĚĞĨŝŶŝƚŝŽŶ ŽĨ ͞ƉƵďůŝĐ ďŽĚLJ͟ ŝŶ ƚŚĞ Financial Administration Act ;͞Ă ďŽĂƌĚ͕ corporation, commission or similar body established by, Žƌ ƵŶĚĞƌ ĂŶ Đƚ ͙͖͟

x

^ƚLJůĞ ƚŚĞ ƉƌŽǀŝŶĐŝĂů ƌŽǁŶ ĂƐ ͞ƚŚĞ ƌŽǁŶ ŝŶ ZŝŐŚƚ ŽĨ EĞǁĨŽƵŶĚůĂŶĚ ĂŶĚ >ĂďƌĂĚŽƌ͖͟

x

2(s)

Commentary of the 2013 Statutory Review Committee

Description

We do not believe there is a reason to differentiate between a temporary and permanent board or commission of the Crown and agree with the recommendation to delete the ǁŽƌĚ ͞ƉĞƌŵĂŶĞŶƚ͟ ŝŶ Ϯ ;ϭͿ;ũͿ;ǀŝͿ͘

We agree with the recommendations of the technical reviewers that the Delete the reference to having to submit to provincial government review the operation of the Act as unnecessary red-­‐ the language in the Financial Administration Act; style the tape. ƉƌŽǀŝŶĐŝĂů ƌŽǁŶ ĂƐ ͞ƚŚĞ ƌŽǁŶ in Right of Newfoundland and Labrador;͟ ĂŶĚ ĚĞůĞƚĞ ƚŚĞ reference to having to submit to the operation of the Act as unnecessary red-­‐tape.

ĞĨŝŶŝƚŝŽŶ ŽĨ ͞ŵĞŵďĞƌ ŽĨ ƚŚĞ ĨĂŵŝůLJ͟

ACCEPTED

ůŝŵŝŶĂƚŝŶŐ ͞ŝůůĞŐŝƚŝŵĂĐLJ͟ ĨƌŽŵ ƚŚĞ ĚĞĨŝŶŝƚŝŽŶ ʹ The SRC recommends the change this is a legal concept that has been abolished in for the reasons identified by the NL. technical advisors.

2(v)

2013

ĞĚƵĐƚŝŽŶ ŽĨ ŝŶĐŽŵĞ ƚĂdž ĨƌŽŵ ͞ŶĞƚ ĞĂƌŶŝŶŐƐ͟

NOT ACCEPTED

x

The SRC does not agree with the recommendation. The SRC understands the current practice of the WHSCC is working.

^ŽŵĞ ĐůĂƌŝƚLJ ƌĞƋƵŝƌĞĚ ĂƐ ͞ƉƌŽďĂďůĞ ŝŶĐŽŵĞ ƚĂdž ĚĞĚƵĐƚŝŽŶƐ ĨŽƌ ƚŚŽƐĞ ĞĂƌŶŝŶŐƐ͟ ĐĂŶ ďĞ interpreted as either the amount that would have been deducted or withheld as income tax from those earnings (the correct interpretation) or the amount equal to the deductions from taxable income that

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II. HOUSEKEEPING Section Number

Commentary of the 2013 Statutory Review Committee

Description the worker would have been entitled to make from those earnings;

2.01

x

Further guidance is also required [as to] how the probable income tax deducted or withheld is calculated ƵŶĚĞƌ ƚŽĚĂLJ͛Ɛ Income Tax Act rules, in view of the switch to tax credits versus income tax deductions.

x

See AB tŽƌŬĞƌƐ͛ ŽŵƉĞŶƐĂƚŝŽŶ ZĞŐƵůĂƚŝŽŶ, AR 325/2002, as am AR 164/2010, s. 1(2) & (3) for possible model language. Note that BC, MB, SK and PEI, by legislation or policy, all use tax credits to calculate probable income tax. NS and ON rely on the TD1 claim code supplied by the employer.

Applicability of Human Rights Act, 2010

ACCEPTED

The reference to the Human Rights Code should The SRC recommends the change be updated to the Human Rights Act, 2010. for the reasons identified by the technical advisors.

6

Chief Executive Officer

ACCEPTED

ĞůĞƚĞ ƌĞĨĞƌĞŶĐĞ ƚŽ ͞ǁŚŽ ƐŚĂůů ĚĞǀŽƚĞ ƚŚĞ The SRC recommends the change whole of his or her time to the performance of for the reasons identified by the duties under this Act͘͟ dŚŝƐ ƌĞƋƵŝƌĞŵĞŶƚ ƐĞĞŵƐ technical advisors. unnecessarily restrictive and the Board of Directors, in any event, will make decisions ĂďŽƵƚ ƚŚĞ K͛Ɛ ƉĞƌĨŽƌŵance.

PART I.1

WORKPLACE HEALTH AND SAFETY

20.3

dŚĞ ǁŽƌĚƐ ͞ĂŶĚ ƐŚĂůů ƉƌŽǀŝĚĞ͟ ďĞ ƐƵďƐƚŝƚƵƚĞĚ ĨŽƌ ƚŚĞ ǁŽƌĚƐ ͞ŝŶĐůƵĚŝŶŐ ƚŚĞ ƉƌŽǀŝƐŝŽŶ ŽĨ͟

ACCEPTED

This is a stylistic amendment to the subsection sentence which would provide grammatical accuracy and improve clarity.

2013

The SRC recommends the change for the reasons identified by the technical advisors.

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II. HOUSEKEEPING Section Number PART II

Commentary of the 2013 Statutory Review Committee

Description APPEALS

Title

dŚĞ ƚŝƚůĞ ŽĨ ƚŚŝƐ WĂƌƚ ďĞ ĂŵĞŶĚĞĚ ƚŽ͗ ͞ZĞǀiews ACCEPTED ĂŶĚ ^ƚĂƚĞĚ YƵĞƐƚŝŽŶƐ͟ The SRC recommends the change dŚĞ ƚŝƚůĞ ͞ ƉƉĞĂůƐ͟ ĂƉƉĞĂƌƐ ƚŽ ďĞ Ă ǀĞƐƚŝŐĞ ŽĨ in the title for the reasons the pre-­‐2003 appeal system when the external identified by the technical appeal body was called the Appeal Tribunal. advisors.

Although the Interpretation Act specifies that However, the SRC recommends headings do not form part of the Act, this that the new title be Reviews heading is confusing and misleading. The title and Stated Cases ĂƐ ͞ƋƵĞƐƚŝŽŶƐ͟ should be amended to reference the current ĂƌĞ Ă ƐƵďƐĞƚ ŽĨ ͞ĐĂƐĞƐ͘͟ The SRC Review Division as well as the power of the also notes that the WHSC Act Commission and the Lieutenant Governor in should be reviewed to identify Council to refer questions to the Trial Division ǁŚĞƌĞ ƚŚĞ ǁŽƌĚ ͞ĂƉƉĞĂůƐ͟ as a stated case. ƐŚŽƵůĚ ďĞ ĐŚĂŶŐĞĚ ƚŽ ͞ƌĞǀŝĞǁƐ.͟

22(1) & (2) and 23

ZĞŵŽǀĞ ƌĞĨĞƌĞŶĐĞ ƚŽ ͞ƉĂŶĞů͟ ŝŶ ƐĞĐƚŝŽŶ 22(1)&(2) and section 23 of the Act

x dŚĞ ǁŽƌĚ ͞ƉĂŶĞů͟ ŝƐ ƵŶŶĞĐĞƐƐĂƌLJ ĂŶĚ confusing. Sections 23 and 28 make it clear that reviews are always decided by a panel of one review commissioner; therefore, use ŽĨ ƚŚĞ ǁŽƌĚ ͞ƉĂŶĞů͟ ŝƐ Ăƚ ďĞƐƚ ƐƵƉĞƌĨůƵŽƵƐ͘

x Note that one of the recommendations in this Review is that the Review Division have the ability to appoint a panel of more than one Review Commissioner to hear a review.

If the legislature chooses to adopt this ƌĞĐŽŵŵĞŶĚĂƚŝŽŶ͕ ƚŚĞŶ ƚŚĞ ǁŽƌĚ ͞ƉĂŶĞů͟ should be used to refer to a panel appointed to hear a review.

NOT ACCEPTED After consultation with appropriate stakeholders, the SRC does not recommend the change in wording with respect to section 22(1) and (2), as ͞ƉĂŶĞů͟ ƌĞĨĞƌƐ ƚŽ ƚŚĞ ŐƌŽƵƉ ŽĨ review commissioners at WHSCRD. With respect to section 23, the SRC does not recommend the change to a panel of more than one Review Commissioner to hear a review.

(The Act, ss. 23 and 28)

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II. HOUSEKEEPING Section Number 26(1)(a)

Description dŚĞ ǁŽƌĚ ͞ďĞŶĞĨŝƚƐ͟ ďĞ ƌĞŵŽǀĞĚ ĨƌŽŵ ƐĞĐƚŝŽŶ 26(1)(a) ͞ ŽŵƉĞŶƐĂƚŝŽŶ͟ ŝƐ ĚĞĨŝŶĞĚ ŝŶ ƐĞĐƚŝŽŶ Ϯ ŽĨ ƚŚĞ Đƚ͘ dŚĞ ǁŽƌĚ ͞ďĞŶĞĨŝƚƐ͟ ŝƐ͕ ƚŚĞƌĞĨŽƌĞ͕ redundant. It is also potentially confusing as it raises the question whether there are other ƚLJƉĞƐ ŽĨ ͞ĐŽŵƉĞŶƐĂƚŝŽŶ͟ ĚĞĐŝƐŝŽŶƐ ǁŚŝĐŚ ĂƌĞ ŶŽƚ ͞ĐŽŵƉĞŶƐĂƚŝŽŶ ďĞŶĞĨŝƚƐ͟ ĚĞĐŝƐŝŽŶƐ ĂŶĚ͕ therefore, not reviewable.

Commentary of the 2013 Statutory Review Committee After consultation with appropriate stakeholders, the SRC recommends that 26 (1) be reviewed and updated to represent the current authority of the WHSCRD.

x See recommendations 26 and 27.

[NL, s. 2; BC, s. 96.2(1)(a)] 26(1)(a.1)

ĚĚ ͞ŵĞĚŝĐĂů͟ Žƌ ͞ŚĞĂůƚŚ ĐĂƌĞ͟ ďĞĨŽƌĞ ƚŚĞ word rehabilitation While the term rehabilitation may be read to include both physical and vocational rehabilitation, the word implies such services and benefits a worker receives after medical plateau. This interpretation is supported by the organization of the Act itself, which distinguishes between medical aid in Part V and return to work and rehabilitation in Part VI. /ŶƐĞƌƚŝŶŐ ƚŚĞ ǁŽƌĚ ͞ŵĞĚŝĐĂů͟ Žƌ ͞ŚĞĂůƚŚ ĐĂƌĞ͟ clarifies that the Review Division can consider decisions regarding medical aid.

After consultation with appropriate stakeholders, the SRC recommends that 26 (1) be reviewed and updated to represent the current authority of the WHSCRD.

x See recommendations 26, 27, and 48.

(The Act, Part V and VI) 26(1)(d)

Delete "an employer's merit or demerit rating" After consultation with appropriate stakeholders, the Reviews of merit and demerit ratings are SRC recommends that 26 (1) be covered by section 26(1)(b) "an employer's reviewed and updated to assessment" represent the current authority of the WHSCRD.

x See recommendations 26 and 27.

28(1.2)

Amend to provide that the application shall identify the decision being reviewed, how the decision is contrary to the Act, Regulations or policy and state the outcome requested In order to make this section clear and remove ĂŶLJ ĂŵďŝŐƵŝƚLJ͕ Ă ĚŝƐũƵŶĐƚŝǀĞ ͞Žƌ͟ ŝƐ ƉƌĞĨĞƌĂďůĞ ƚŽ Ă ĐŽŶũƵŶĐƚŝǀĞ ͞ĂŶĚ͟ ďĞĐĂƵƐĞ ͞Žƌ͟ ŵĂŬĞƐ ŝƚ clear that the decision only needs to be

2013

ACCEPTED WITH MODIFICATION After consultation with appropriate stakeholders, the SRC recommends the change for the reasons identified by the technical advisors as the intent in legislation is to choose one of the ways in which the decision is

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II. HOUSEKEEPING Section Number

Commentary of the 2013 Statutory Review Committee contrary to any one of the Act, Regulations or contrary to the Act, Regulations Commission policy and not all three. It is also or WHSCC policy and therefore a desirable to know what remedy the applicant is decision may be reviewed. seeking because the Review Division has a Further, this approach reflects choice of remedies pursuant to Section current practice, and the statute 1 28(4.2). Such a requirement is common in should support this practice. workers compensation appeal provisions and Further, the SRC does not agree ƚŚĞ ZĞǀŝĞǁĞƌƐ ŶŽƚĞ ƚŚĂƚ ƚŚĞ ZĞǀŝĞǁ ŝǀŝƐŝŽŶ͛Ɛ with the technical advisors and ďƌŽĐŚƵƌĞ ĞŶƚŝƚůĞĚ ͞dŚĞ ZĞǀŝĞǁ WƌŽĐĞƐƐ͟ ƐĞƚƐ recommends that the Act should out that an applicant should indentify in the not require that the appellant request for review form the type of benefits state the expected outcome being sought. (remedy).

1 Section 28(4.2) should also be amended such ƚŚĂƚ ƚŚĞ ǁŽƌĚ ͞ĂŶĚ͟ ŝƐ ƌĞƉůĂĐĞĚ ďLJ ͞Žƌ͘͟ Description

[BC, s. 242(2)(b) and (e); ON, s. 125(2); AB, s.

134(3)] 28.1(2) 28(1)

Amend the language for internal consistency and clarity The Reviewers recommend that the time frame set out in this subsection begin to run from 30 days of the date of the decision of the Review Commissioner that is the subject of the reconsideration request. This language is consistent with the recommendations under s.

27 for the triggering of time limitations. It ǁŽƵůĚ ĐůĂƌŝĨLJ ƚŚĞ ƚŝŵĞ ĨƌĂŵĞ ĂƐ ƚŚĞ ǁŽƌĚƐ ͞ƚŚĞ ƌĞĐŽŶƐŝĚĞƌĂƚŝŽŶ ďĞŝŶŐ ŐŝǀĞŶ͟ ƐƵŐŐĞƐƚƐ ƚŚĂƚ ƚŚĞ reconsideration will take place regardless of whether the 30-­‐day time limitation is met.

NOT ACCEPTED The current language is clear and sufficient in both sections 28.1(2) and 28(1) of the Act. Although the commentary provided by the technical advisors does not address 28(1) the SRC is including it to be consistent. The SRC finds there is no relevance to referring to section 27 in this recommendation.

[The Act, ss. 27 and 28.1(2)] 36 & 37

Heading Amendment

ACCEPTED

ŵĞŶĚ ƚŚĞ ŚĞĂĚŝŶŐ ŽĨ ƚŚŝƐ ƐĞĐƚŝŽŶ ƚŽ ͞ZƵůĞƐ ĨŽƌ Stated ĂƐĞƐ͘͟

The SRC recommends the change for the reasons identified by the technical advisors.

These changes bring the language of the Act up-­‐to-­‐date, and also aids in removing inconsistencies introduced in 1994.

2, 7(2), 8 and

2013

ŚĂŶŐĞ ͞ ŽŵŵŝƐƐŝŽŶĞƌ͟ ƚŽ ͞ZĞǀŝĞǁ

ACCEPTED

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II. HOUSEKEEPING Section Number 13 (Workplace Health Safety and Compensation Review Division Regulation, 1117/96)

Description ŽŵŵŝƐƐŝŽŶĞƌ͟ ƚŚƌŽƵŐŚŽƵƚ ƚŚĞ ZĞŐƵůĂƚŝŽŶ dŚĞ ƚĞƌŵ ͞ ŽŵŵŝƐƐŝŽŶĞƌ͟ ŝƐ ƵƐĞĚ ĨƌĞƋƵĞŶƚůLJ ŝŶ ZĞŐƵůĂƚŝŽŶ ϭϭϭϳͬϵϲ͘ ͞ ŽŵŵŝƐƐŝŽŶĞƌ͟ ŝƐ ŶŽƚ ĚĞĨŝŶĞĚ ŝŶ ƚŚĞ ZĞŐƵůĂƚŝŽŶ͘ ͞ZĞǀŝew ŽŵŵŝƐƐŝŽŶĞƌ͟ ŝƐ ĚĞĨŝŶĞĚ ĂŶĚ ͞ ŽŵŵŝƐƐŝŽŶ͟ ŝƐ defined. For greater clarity, and consistency ǁŝƚŚ ƚŚĞ ĚĞĨŝŶĞĚ ƚĞƌŵƐ͕ ͞ ŽŵŵŝƐƐŝŽŶĞƌ͟ ƐŚŽƵůĚ ďĞ ĂŵĞŶĚĞĚ ƚŽ ͞ZĞǀŝĞǁ ŽŵŵŝƐƐŝŽŶĞƌ͘͟

Commentary of the 2013 Statutory Review Committee The SRC recommends the change for the reasons identified by the technical advisors.

These changes bring the language of the Act up-­‐to-­‐date, and also aid in removing inconsistencies introduced in 1994.

[Regulation 1117/96, ss. 2, 7(2), 8, and 13]

PART IV

COMPENSATION AND RIGHT OF ACTION

45(2)

Time limit for election by dependents

ACCEPTED

The timeframe allotted to dependents for electing between benefits and bringing an action in this section (3 months) should be changed to 6 months in order to be consistent with the timeframe for claiming compensation under s. 53(1)(b)(iii).

The SRC recommends the change for the reasons identified by the technical advisors.

No waiver of benefits

ACCEPTED

This section is currently worded as focusing on the worker͛Ɛ ďĞŚĂǀŝŽƵƌ͘ /ƚ ŝƐ͕ ƌĂƚŚĞƌ͕ Ă provision that protects the worker. Make the ůĂŶŐƵĂŐĞ ŵŽƌĞ ŶĞƵƚƌĂů ĂŶĚ ŝŶƐƚĞĂĚ ŽĨ ƐĂLJŝŶŐ ͞ ǁŽƌŬĞƌ ƐŚĂůů ŶŽƚ ĂŐƌĞĞ ͙͕͟ ƐĂLJ ͞EŽ ĂŐƌĞĞŵĞŶƚ between an employer and a worker that waives Žƌ ƉƵƌƉŽƌƚƐ ƚŽ ǁĂŝǀĞ ͙͞

The SRC recommends the change for the reasons identified by the technical advisors.

52

Further, the change in the time limit reflects the current practice of six months.

See AB, s. 140.

56 & 106

^ĞĐƚŝŽŶ ϱϲ ƵƐĞƐ ƚŚĞ ĞdžƉƌĞƐƐŝŽŶ ͞experience record͟ ǁŚŝůĞ ƐĞĐƚŝŽŶ ϭϬϲ ƵƐĞƐ ͞experience account͟ ƚŽ ŵĞĂŶ ƚŚĞ ƐĂŵĞ ƚŚŝŶŐ͘ dŚĞ terminology should be consistent to avoid confusion.

ACCEPTED As the technical reviewers have recommended and the SRC accepted that 56 (3) be deleted, the conflict in terminology is resolved.

Please see recommendation 43.

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II. HOUSEKEEPING Section Number 68

Description Death of child

Commentary of the 2013 Statutory Review Committee ACCEPTED

This section allows the Commission to disallow a compensation claim where a child is unlawfully employed and killed at work. It appears to be aimed at the regulation of child labour. It seems unnecessarily punitive and is perhaps an historical artefact. Modern labour laws already deal with illegal underage employment.

The SRC recommends the deletion of section 68 for the reasons identified by the technical advisors.

Continuation of household

ACCEPTED

^ƵďƐƚŝƚƵƚĞ Ă ŵŽƌĞ ŵŽĚĞƌŶ ƚĞƌŵ ĨŽƌ ͞ĨŽƐƚĞƌ ƉĂƌĞŶƚ͟ ʹ ͞ŐƵĂƌĚŝĂŶ͍͟

The SRC recommends the change for the reasons identified by the technical advisors.

Payment of compensation to confined person

ACCEPTED

hƉĚĂƚĞ ƚŚĞ ͞ŵĞŶƚĂů ŚŽƐƉŝƚĂů͟ ƚĞƌŵŝŶŽůŽŐLJ͘

The SRC recommends the change for the reasons identified by the technical advisors.

PART V

MEDICAL AID

84(1)

ZĞŵŽǀĞ ƚŚĞ ǁŽƌĚƐ ͞Žƌ ǁŚŽ ǁŽƵůĚ ŚĂǀĞ ďĞĞŶ entitled had he or she been disabled longer ƚŚĂŶ ƚŚĞ ĚĂLJ ŽĨ ƚŚĞ ŝŶũƵƌLJ͟ ĨƌŽŵ ƚŚĞ ƉƌŽǀŝƐŝŽŶ

ACCEPTED

70

82(3)

Section 43 provides that compensation is payable if an injury arises out of and in the course of the woƌŬĞƌ͛Ɛ ĞŵƉůŽLJŵĞŶƚ ĂŶĚ Ɛ͘ ϰϳ makes it clear that only medical aid is paid for by the Commission where an injury disables a worker for only the day on which the injury ŽĐĐƵƌƌĞĚ͘ dŚĞƌĞĨŽƌĞ͕ ƚŚĞ ǁŽƌĚƐ ͞Žƌ ǁŚŽ ǁŽƵůĚ have been entitled had he or she been disabled ůŽŶŐĞƌ ƚŚĂŶ ƚŚĞ ĚĂLJ ŽĨ ƚŚĞ ŝŶũƵƌLJ͟ ĂƌĞ unnecessary in s. 84(1) and make the provision cumbersome and difficult to read.

The SRC recommends the change for the reasons identified by the technical advisors.

(The Act, ss. 43 and 47) 84(3)(g)

2013

Amend the subsection to clarify that it covers hearing and vision aids that may be necessary as a result of an incident causing injury or where the Commission is satisfied that replacement or repair of hearing or vision aids is necessary as a result of a work incident

NOT ACCEPTED The SRC does not support making the changes recommended. The SRC believes the original language in the legislation is clear with respect to

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Description

Commentary of the 2013 Statutory Review Committee application.

The section, as written, is not clear. This ĂŵĞŶĚŵĞŶƚ ĐŽĚŝĨŝĞƐ ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ ƉƌĂĐƚŝĐĞ

of repairing or replacing hearing and visual aids where the repair or replacement is necessary as a result of a workplace incident.

[WHSCC Procedure Number 58.00 ʹ Health Care Devices & Supplies (item numbers 58.7.4 and 58.7.5)] 86(2)

Questions concerning payment for health care. ACCEPTED Remove this section because it is redundant as s. 85(1) provides that all questions as to the necessity, character and sufficiency of medical aid shall be determined by the Commission.

The SRC recommends the change for the reasons identified by the technical advisors.

[The Act, s. 85(1)] 87(1)

ZĞŵŽǀĞ ͞ǁŝƚŚŝŶ ƚŚĞ ŵĞĂŶŝŶŐ ŽĨ ƚŚŝƐ Đƚ͟ ĨƌŽŵ the subsection

x This provision is concerned with an ĞŵƉůŽLJĞƌ͛Ɛ ĚƵƚLJ ƚŽ ŽďƚĂŝŶ ŵĞĚŝĐĂů ĂŝĚ ĨŽƌ Ă worker seriously injured or to transport the worker to a place where the worker can receive medical aid. The provision refers to Ă ǁŽƌŬĞƌ ͞ƐŽ ƐĞƌŝŽƵƐůLJ ŝŶũƵƌĞĚ ǁŝƚŚŝŶ ƚŚĞ ŵĞĂŶŝŶŐ ŽĨ ƚŚŝƐ Đƚ͘͟

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

x This is unnecessary language that makes the provision confusing and difficult to read. ͞^ĞƌŝŽƵƐůLJ ŝŶũƵƌĞĚ͟ ŝƐ ŶŽƚ Ă ĚĞĨŝŶĞĚ ƚĞƌŵ ŝŶ ƚŚĞ Đƚ͘ ͞/ŶũƵƌLJ͟ ŝƐ Ă ĚĞĨŝŶĞĚ ƚĞƌŵ ŝŶ Ɛ͘ Ϯ͘ hƐĞ ŽĨ ƚŚĂƚ ǁŽƌĚ ŝƐ ƉƌĞƐƵŵĞĚ ƚŽ ďĞ ĂƐ ŝƚ͛Ɛ defined within the Act. The Interpretation Act, RSNL 1990 CI-­‐19, s. 22(i) provides that where a word is defined, other parts of speech tenses of the same word have corresponding meanings.

[The Act, s. 2; Interpretation Act, s. 22(i)] PART VI

RETURN TO WORK AND REHABILITATION

89.3(3)

Amend the subsection to provide that any person other than the worker, who receives the information in subsection (1) shall not disclose that information, except as required

ACCEPTED

2013

The SRC recommends the change for the reasons identified by the technical advisors.

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II. HOUSEKEEPING Section Number

Commentary of the 2013 Statutory Review Committee for the purposes of returning the worker to The SRC further recommends work that the sections regarding confidentiality be consolidated The current wording of the subsection does not into one section of the Act with prevent a person who is assisting the employer consideration of the proposed from disclosing the information in subsection model structure provided on (1). pages 27 and 28 of the legal [The Act, s. 89.3(3)] review submitted by the technical advisors.

Description

Also, please see recommendations 11, 35, and 45 in Part II , Section IV Summary of Recommendations.

89.1(7)

ŚĂŶŐĞ ƚŚĞ ǁŽƌĚŝŶŐ ƚŽ ŵĂŬĞ ͞ƚŚĞ ǁŽƌŬĞƌ͟ ƚŚĞ ŽďũĞĐƚ ŽĨ ƚŚĞ ǀĞƌď ͞ĂĐĐŽŵŵŽĚĂƚĞ͟

x The subsection as worded contains a

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

grammatical error, which alters the meaning of the sentence. It is the worker that is the

object of the accommodation. The provision should read something like: ͞ŵŽĚŝĨLJ ƚŚĞ ǁŽƌŬ Žƌ ǁŽƌŬ ƉůĂĐĞ ƚŽ ĂĐĐŽŵŵŽĚĂƚĞ ƚŚĞ ǁŽƌŬĞƌ͘͟

x The return to work and duty to accommodate provisions in the Newfoundland Act are almost identical to those in the Ontario Act. It is noted that Section 41(6) of the Ontario Act contains an identical error.

[ON, s. 41(6)] PART VII

INDUSTRIAL DISEASES

92(6)

Change tŚĞ ƌĞĨĞƌĞŶĐĞ ƚŽ ͞ƐĞĐƚŝŽŶ ϯ ŽĨ ƚŚĞ WƵďůŝĐ /ŶƋƵŝƌŝĞƐ Đƚ͟ ƚŽ ͞ƐĞĐƚŝŽŶƐ ϵ ƚŚƌŽƵŐŚ ϭϭ of the Public Inquiries Act ϮϬϬϲ͟

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

Section 92(6) provides that a Committee has the powers conferred on a Commissioner by

Section 3 of the Public Inquiries Act. The Public Inquiries Act was repealed and replaced by the Public Inquiries Act 2006. Section 3 of the Public Inquiries Act 2006 outlines the power of the Lieutenant Governor in Council to appoint a

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II. HOUSEKEEPING Section Number

Commentary of the 2013 Statutory Review Committee

Description Commission of inquiry. The provisions of the Public Inquiries Act 2006 which confer powers on a Commission appointed under Section 3 are Sections 9 through 11. Reference to these sections will elucidate the powers of the Committee (Public Inquiries Act 2006, ss. 3 and 9 through 11)

PART VIII

INJURY FUND AND ASSESSMENTS

93(2)

Payment from Injury Fund ʹ clarification

ACCEPTED

ZĞƉůĂĐĞ ͙͞ ĂŶĚ ŽƚŚĞƌ ĞdžƉĞŶƐĞƐ ƵŶĚĞƌ ƚŚŝƐ Act ͙͟ ǁŝƚŚ ͘͞​͘​͘ ĂŶĚ Ăůů ĞdžƉĞŶƐĞƐ ŝŶĐƵƌƌĞĚ ŝŶ ƚŚĞ administration of this Acƚ ͙͟ Žƌ ŽƚŚĞƌǁŝƐĞ ďĞ more explicit about what be paid out of the Injury Fund [MB, s. 81(1); NB, s. 52(c); NS, 115(1)(c); NT/Nu, s. 67(4)(b) & (c); ON, 96(1)&(2); PEI, s. 35; QC, s. 281].

The SRC recommends the change for the reasons identified by the technical advisors.

Agreements with other provinces

ACCEPTED

ĚĚ Ă ƌĞĨĞƌĞŶĐĞ ƚŽ ͞ƚĞƌƌŝƚŽƌŝĞƐ͟ ŝŶ ĂĚĚŝƚŝŽŶ ƚŽ ͞ƉƌŽǀŝŶĐĞƐ͘͟ E> ŝƐ ƉĂƌƚLJ ƚŽ ĂŶ ĂŐƌĞĞŵĞŶƚ ǁŝƚŚ the three territories of Canada (the Interjurisdictional Agreement).

The SRC recommends the change for the reasons identified by the technical advisors.

Reserves

ACCEPTED

109

116

x x

The SRC recommends the change for the reasons identified by the ͙ ͞ĂŶLJ ƌĞƐĞƌǀĞƐ ƚŚĂƚ ƚŚĞ ĐŽŵŵŝƐƐŝŽŶ ĚĞĞŵƐ technical advisors. ŶĞĐĞƐƐĂƌLJ͟ ĐĂŶ ďĞ ĂĚĚĞĚ ƚŽ Ɛ͘ ϵϳ ĂƐ ŽŶĞ ŽĨ

the purposes for which assessment is collected.

Repeal section;

PART XI

REVIEW

126(7)

Change the reference in Section 126(7) from ACCEPTED the Public Inquiries Act to the Public Inquiries The SRC recommends the change Act, 2006 and refer to the appropriate sections for the reasons identified by the of the current Act technical advisors.

The Public Inquiries Act was repealed and

replaced with the Public Inquiries Act, 2006.

The reference to subsection 3(1) in Section 126(7) should be changed to Sections 9 through 11, references to subsection 3(2) and (3) should

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II. HOUSEKEEPING Section Number

Description

Commentary of the 2013 Statutory Review Committee

be changed to section 8(1) and (2), and the reference to Section 2 should be changed to Section 3.

(Public Inquiries Act, 2006)

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III. PARKING LOT Section III ʹ Parking Lot addresses sections 1, 2 & 2.01 and Parts I, III, IV & VIII of the WHSC Act.

This section refers to pages 110 to 112 of A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11). The technical advisors identified in this section other areas for consideration that would strengthen the WHSC Act; while they are important, they are less immediate in terms of priority for action compared to the recommendations in Section IV ʹ Summary of Recommendations.

Section Number 2(m)

Commentary of the 2013 Statutory Review Committee Industrial diseases that are not prescribed must NOT ACCEPTED ďĞ ͞ƉĞĐƵůŝĂƌ ƚŽ Žƌ ĐŚĂƌĂĐƚĞƌŝƐƚŝĐ ŽĨ Ă ƉĂƌƚŝĐƵůĂƌ The SRC disagrees with the ŝŶĚƵƐƚƌŝĂů ƉƌŽĐĞƐƐ͕ ƚƌĂĚĞ Žƌ ŽĐĐƵƉĂƚŝŽŶ͟ dŚŝƐ recommendation offered by the requirement seems to exclude ordinary technical advisors. The issue of diseases of life that are contracted in the ordinary diseases of life is already workplace. You may wish to consider an addressed by current legislation. amendment that includes these diseases in appropriate circumstances. Examples: viruses are present everywhere but can be picked up by health care workers in hospitals and nursing homes; HIV can be transmitted from a blood splash.

New

For enhanced transparency and accountability purposes, consider a legislated annual general meeting [AB, s. 7.1; SK, 21(4); YT, s. 104]

NOT ACCEPTED

Comment regarding Independence and Labour Relations

The SRC considers this matter to be beyond its mandate under the legislative review.

Financial Administration Act [ss. 6(c), 7(1)(f) & 7(2)(b)-­‐(f])

2013

Description

As a function of the NL Financial Administration, the Treasury Board carries out a number of labour relations functions on behalf of or as agent for the Commission, including negotiation of collective bargaining agreements. The Reviewers accept that this arrangement is to promote equivalency and parity in public sector salary and benefits. However, the Reviewers ŶŽƚĞ ƚŚĂƚ ͞ƉƵďůŝĐ ŵŽŶĞLJ͟ ĂƐ ĚĞĨŝŶĞĚ ŝŶ ƚŚĞ FAA ŝƐ ŶŽƚ Ăƚ ƐƚĂŬĞ ŝŶ ƚŚĞ ĐĂƐĞ ŽĨ ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ labour relations and ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ ĨŝŶĂŶĐĞƐ are not part of the public accounts. &ƵƌƚŚĞƌŵŽƌĞ͕ ǁŚŝůĞ Ă ͞ƉƵďůŝĐ ďŽĚLJ͟ ďĞĐĂƵƐĞ ŽĨ its statutory origin, the Commission is neither a government department nor Crown

The SRC disagrees with the suggested direction offered by the technical advisors.

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Description

Commentary of the 2013 Statutory Review Committee

Corporation. It is also our understanding that ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ employees are not part of the public service of Newfoundland and Labrador and belong to a separate bargaining unit.

The Review Committee may wish to consider from the perspective of enhancing independence and the appearance of independence whether a discussion should be held with government about having the dƌĞĂƐƵƌLJ ŽĂƌĚ ĐŽŶƚŝŶƵĞ ƚŽ ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ labour relations. While the matter of wage parity within the public sector may be a relevant consideration, there is no reason why it could not be adopted as a guideline by the Commission in its labour negotiations.

Further, by separating the Commission from the province for labour relations, the Commission may take a different approach in its effort to become an employer of choice and attract and retain suitable staff.

The change could be effected by having the LGIC rescind the OC that includes the Commission as a public body for the sections noted in the margin.

New

New

2013

Consider a section that authorizes the Commission to prescribe mandatory forms for submitting information to the Commission by workers, employers and health care providers.

ACCEPTED

Consider a section that permits the Commission to issue evidentiary certificates as a means of getting decisions of the Commission or other information of the Commission before the Court or other tribunal. This would be particularly useful for certifying the status of parties under the Act in cases under s. 46 where ƚŚĞ ͚ďĂƌ ƚŽ ƐƵŝƚ͛ ŝƐ ŝŶ ƋƵĞƐƚŝŽŶ͘ ΀ ͕ Ɛ͘ ϭϰϵ ʹ WCB may certify any information; BC, s. 257 ʹ tribunal may certify information relating to an

ACCEPTED

The SRC recommends the change for the reasons identified by the technical advisors. Mandatory forms allow for consistency and efficiency in providing service.

The SRC understands this is a current practice of the WHSCC.

The SRC agrees that including a new section governing use of evidentiary certificates within the Act would provide direct authority to the WHSCC rather than relying on authority offered by other legislation. It will also enhance the control of the

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III. PARKING LOT Section Number

Description action; ON, s. 182 ʹ Board may certify anything; MB, s. 109.6(9) ʹ Board may certify information for prosecution of other proceedings under the Act.]

74.1(1)

81.1

New

2013

Cost of Living Adjustment (COLA) -­‐ the Reviewers ask that the Review Committee consider the following: x

whether the power to set COLA should be exercised by the Board of Directors through policy as part of its exclusive jurisdiction to set compensation policy, rather than set by statute;

x

whether the Canada or the NL CPI is the appropriate index for NL COLA purposes (see website at http://www.statcan.gc.ca/tables-­‐ tableaux/sum-­‐som/l01/cst01/econ09a-­‐ eng.htm);

x

whether whichever CPI index is used needs to be adjusted for bias;

x

whether the COLA adjustment should be on annual earnings or on the compensation itself.

Should the outright ƉƌŽŚŝďŝƚŝŽŶ ĂŐĂŝŶƐƚ ͞ƚŽƉ-­‐ ƵƉ͟ of compensation by employers be maintained?

Commentary of the 2013 Statutory Review Committee WHSCC͛Ɛ ƌĞĐŽƌĚs, maintain quality assurance, and assure professionalism in the way they are used outside of the WHSCC as required. Further, it reflects standards in similar legislation governing other jurisdictions in Canada.

NOT ACCEPTED The SRC concludes that the t,^ ͛Ɛ ĐƵƌƌĞŶƚ ƉƌĂĐƚŝĐĞ ǁŝƚŚ respect to COLA is sufficient.

ACCEPTED The SRC agrees the outright ƉƌŽŚŝďŝƚŝŽŶ ĂŐĂŝŶƐƚ ͞ƚŽƉ-­‐ƵƉ͟ ŽĨ compensation by employers be maintained. Please see Section 11 Financial Sustainability, Sub-­‐ section 11.10 Top-­‐Up Provisions in WĂƌƚ / ŽĨ ƚŚĞ ^Z ͛Ɛ ƌĞƉŽƌƚ͘

Does the Commission want an explicit power to NOT ACCEPTED issue rebates to employers once it exceeds the The SRC understands this issue is optimal funding level? )? [AB, s. 113; MB, s. already addressed through the 82(2)].

WHSCC͛Ɛ Funding Policy.

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III. PARKING LOT Section Number 94, 95 et seq.

New

Description Does the Commission wish to update the statutory terminology for classification (classes, subclasses and departments) to reflect its current practice (industries and industry groups)?

The Reviewers suggest that the Review Committee consider discussing with government whether the tŽƌŬĞƌƐ͛ ĚǀŝƐŽƌ Program should be re-­‐envisioned in order to reflect what appears to be best practice in the rest of Canada. The predominant model in Canada (nine jurisdictions: BC, MB, NB, NT/NU, E^͕ KE͕ W /͕ ^< ĂŶĚ z<Ϳ ŝƐ ĨŽƌ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation agency to fund the program through a levy and for the provincial or territorial government to offer it as a government service (in some cases through the ƐĂŵĞ DŝŶŝƐƚƌLJ ƵŶĚĞƌ ǁŚŝĐŚ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation agency falls, in other cases a totally different Ministry, presumably for independence purposes). This ensures both that the cost is collected as a program cost of the system and that the program is ŝŶĚĞƉĞŶĚĞŶƚ ŽĨ ƚŚĞ ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ agency. In all 9 jurisdictions, the advisors in addition to offering advice and assistance provide actual representation for injured workers before the external appeal tribunal.

Commentary of the 2013 Statutory Review Committee ACCEPTED The SRC agrees with the suggestion of the technical advisors that the terminology be updated to reflect current practice.

NOT ACCEPTED The SRC does not agree with this ƐƵŐŐĞƐƚŝŽŶ͘ dŚĞ ĐƵƌƌĞŶƚ tŽƌŬĞƌƐ͛ Advisor Program is functioning well and change is not required.

The current NL model is based on a funding agreement between the Commission and the Newfoundland and Labrador Federation of Labour, although the services are extended to workers regardless of whether there is union affiliation. By agreement, the services are restricted to advice and assistance and exclude actual representation before the Review Division. The program is accountable to the Commission through annual reporting and is directly financially dependent on the Commission for its continued existence.

As it presently stands, the NL model raises perceived issues of independence, both from

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III. PARKING LOT Section Number

Description

Commentary of the 2013 Statutory Review Committee

the Commission and organized labour. It is recognized that converting to the predominant model, particularly in offering representation services, would increase system costs considerably and create another government office. The rationale for doing so is that presents a more effective check and balance for system fairness. Workers are historically in a lesser position than employers and many lack the coping skills to represent themselves effectively or the financial means to hire legal counsel or other representation.

The AB program is based on a more general legislative provision that permits the WCB to establish programs that benefit workers or employers. The Board of Directors has enacted a policy to imbue the program with functional independence while the advisors remain WCB employees.

The Reviewers have refrained on commenting on the Employer Advisor Program. Only five jurisdictions reference an employer advisor program in the legislation. The remaining jurisdictions do not have such programs, except for NL which has established one by agreement.

We do not see the same imbalance as with workers who are in an historically disadvantaged position.

[See AB, 137 and Policy 01-­‐07; BC, s. 94; MB, s.

108; NB, s. 83.141; NS, ss. 262 & 269; ON, s.

17642; PEI, s. 85; SK, s. 161; YT, s. 109.]

41

/ŶĐůƵĚĞƐ Ă ƉŽǁĞƌ ĨŽƌ ƚŚĞ ŚŝĞĨ tŽƌŬĞƌƐ͛ ĚǀŝƐŽƌ ƚŽ ŚŝƌĞ ůĞŐĂů ĐŽƵŶƐĞů͘ Services provided primarily to non-­‐unionized workers.

42

2013

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IV. SUMMARY OF RECOMMENDATIONS Section IV ʹ Summary of Recommendations refers to pages 113 to 120 of A Legal Review of the Workplace Health, Safety and Compensation Act (RSNL 1990 Chapter W-­‐11).

Sec. #

Rec. #

PART I 1

NEW (should follow s. 3 in existing Act)

2

3

4

5

4(1)

4(1)(3)

5

NEW (should follow s. 5 in existing Act)

2013

Description

THE WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION

Pg. #

Commentary of the 2013 Statutory Review Committee

The Reviewers recommend the addition of 1 a section that clarifies the Commission has all the legal attributes that are necessary to carry out its statutory mandate and objectives.

ACCEPTED

The amendment will clearly establish that 4 the overall role of the board of directors is to provide governance and oversight of the Commission, not to operationally administer the Act.

ACCEPTED

The Reviewers recommend deleting this position or modifying it statutorily to conform with good governance and institutional independence

17

The SRC recommends the change for the reasons identified by the technical advisors.

The SRC recommends the change for the reasons identified by the technical advisors.

NOT ACCEPTED Based on its consultation, the SRC concludes that this position on the Board of Directors enhances the opportunity for greater collaboration between the OHS Branch and the WHSCC.

This amendment spells out with greater 13 clarity the governance powers of the board ŽĨ ĚŝƌĞĐƚŽƌƐ ĂƐ ƐƚĞǁĂƌĚƐ ŽĨ ƚŚĞ ǁŽƌŬĞƌƐ͛ compensation system in the province, particularly in respect of future planning.

ACCEPTED

12

ACCEPTED

This addition specifies the standard of care to be exercised by members of the board of directors in discharging their directorial duties.

The SRC recommends the change for the reasons identified by the technical advisors. The changes, if implemented, will codify current practice.

The SRC recommends the change for the reasons identified by the technical advisors. Standardizing the language of care provides specificity and strengthens the Act.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. # 6

Description

6, 9, 10(c), The reviewers recommend the removal of 11(1) & (2), government approvals in the instances 53(2), 96(3) cited above. & (4), 116(1)(d)

Pg. # 19

Commentary of the 2013 Statutory Review Committee ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

The WHSCC͛Ɛ Board of Directors should be responsible for the hiring of the CEO without requiring the approval of the LGIC. Making these changes would address the separate functions of government and the WHSCC and bring it in line with other boards across Canada.

In addition, government monitors the work of the WHSCC through other mechanisms such as the WHSCC͛Ɛ ŶŶƵĂů ZĞƉŽƌƚ ĂŶĚ Strategic Plan.

7

8

9

7(1) & (2)

The Reviewers recommend that the specific human resources function be removed from the board of directors and the delegation power be deleted. It is also proposed that the Commission be given a power to hire and employ the employees necessary to carry out the administration of the Act and that the CEO be specifically assigned all functions related to human resources for the Commission.

6

10(1)(a) & (3)

This is an amendment that removes ĐŽŶƐƚƌĂŝŶƚƐ ŽŶ ƚŚĞ ŽŵŵŝƐƐŝŽŶ͛Ɛ investment power, allowing it to structure its investments in a way that best achieves ƚŚĞ ŽďũĞĐƚŝǀĞƐ ŽĨ Ă ǁŽƌŬĞƌƐ͛ ĐŽŵƉĞŶƐĂƚŝŽŶ insurer.

7

12(1)

The Reviewers recommend that subsection 23

2013

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

The board of directors should require the CEO to consult with the board on hiring of key personnel such as the executive directors.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

ACCEPTED

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

Description

Pg. #

(1) be amended to more specifically set out the required content of the annual report.

10

11

12

13

Commentary of the 2013 Statutory Review Committee The SRC recommends the change for the reasons identified by the technical advisors.

15(1), 16 & 17

This amendment clarifies that employees 9 and agents of the Commission, as opposed to members of the board of directors, have the operational role of conducting inquiries and investigations under the Act.

18 (replace)

This section consolidates in one place a number of provisions relating to confidentiality. It specifically spells out the instances in which the Commission can disclose worker or employer information, particularly in the case of internal and external review or the health management of the worker. It also ensures that the information disclosed outside of the Commission is used only for purposes consistent with the Workplace Health, Safety and Compensation Act, such as in a review, or otherwise with consent.

18(2)

This amendment changes the responsible 11 body for approving requests for claimant file information from the board of directors to the Commission itself.

ACCEPTED

This amendment is recommended to clarify 30 that the exclusive jurisdiction power encompasses all matters and things arising under the Act.

ACCEPTED

19(1)

2013

25

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

ACCEPTED The SRC agrees with the recommended language and recommends the provincial government implement the proposed model structure of confidentiality provision as presented by the technical advisors with the exception of clause 8.

The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

The SRC recommends the amendment for the reasons identified by the technical advisors. The SRC agrees with sec 19(1) and wishes to ŚŝŐŚůŝŐŚƚ ƚŚĞ ƌĞǀŝĞǁĞƌƐ͛ recommendation regarding

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

14

19

PART I.1 15

16

Description

Pg. #

Commentary of the 2013 Statutory Review Committee the retention of sec. 46.

Consideration should be given to whether it is desirable to include a provision which sets out that the Commission do not have jurisdiction over constitutional questions, Canadian Charter of Rights and Freedoms issues and/or questions arising under the Human Rights Act, 2006.

59

ACCEPTED

WORKPLACE HEALTH AND SAFETY

After consultation with appropriate stakeholders, the SRC is in agreement with the technical advisors with respect to the recommendation regarding the Canadian Charter of Rights and Freedoms and the Human Rights Act.

20.2(e) & (f)

The Reviewers recommend that subsection 31 20.2(e) be amended to specify that the Commission shall set requirements for training of occupational health and safety committees established under s. 37 of the Occupational Health and Safety Act, RSNL 1990 c.0-­‐ϯ ;ƚŚĞ ͞K,^ ͟Ϳ Žƌ ĐŽ-­‐chairpersons of such safety committees, worker health and safety representatives designated under s. 41 of the OHSA, or workplace health and safety designates under s. 42.1 of the OHSA, as well as training programs established under the Occupational Health and Safety Regulation 2009 ;ƚŚĞ K,^Z͟Ϳ and persons who provide training of such programs.

ACCEPTED

20.2(h), 20.3, 20.4, 2 & 4(3)

The Reviewers recommend that the word 33 ͞ ĞƉĂƌƚŵĞŶƚ͟ ďĞ ĂĚĚĞĚ ƚŽ ƐĞĐƚŝŽŶ Ϯ ŽĨ ƚŚĞ Đƚ ĂŶĚ ĚĞĨŝŶĞĚ ĂƐ ͞ƚŚĞ ŐŽǀĞƌŶŵĞŶƚĂů department appointed under the Executive Council Act ƚŽ ĂĚŵŝŶŝƐƚĞƌ ƚŚĞ Đƚ͘͟

ACCEPTED

2013

The SRC recommends the change for the reasons identified by the technical advisors.

The SRC recommends the change for the reasons identified by the technical advisors.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Description

NEW (should follow s.

20.2(h) in the existing Act)

The Reviewers recommend that an additional subsection be added specifying that the Commission shall promote and provide funding for industry specific safety councils.

Rec. # 17

Pg. # 34

Commentary of the 2013 Statutory Review Committee ACCEPTED WITH MODIFICATIONS The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

The SRC supports the wording change but recommends it be shall promote and support sector councils and may provide funding. If the word shall were to be used, there would be no limitations.

Decisions on funding are at the discretion of the WHSCC and should remain so.

18

19

NEW (20.2 ʹ add as new subsection)

Amend section 20.2 to add a new subsection setting out the authority of the Commission to conduct audits and offer services to promote safety in the workplace.

35

NEW subsection (should follow s.

20.4 in the existing Act)

The Reviewers recommend that an additional subsection be added in a form similar to s. 20.5. The new subsection would correspond to the new sectoral council subsection in s. 20.2 (see recommendation at page 33) and set out the maximum percentage of its total income that the Commission may allocate to fund industry specific safety councils or sectoral councils. The new subsection would also expressly provide that the Commission may charge the classes or subclasses of employers which in the opinion of the Commission correspond with the industry covered by a given

36

2013

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

NOT ACCEPTED The SRC does not support making the changes recommended because it will be covered by changes outlined in recommendation #17 above.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

Description

Pg. #

Commentary of the 2013 Statutory Review Committee

sectoral council, a surcharge to cover the cost of funding the sectoral council where the Commission is satisfied that the work of the sectoral council provides a benefit to that class or subclass.

20

20.2(g)

1.PART II

21

NEW subsection (should follow s.

20.7 in the existing Act)

2013

The Reviewers recommend that the words ͞Ă ŚŝŐŚ ƐƚĂŶĚĂƌĚ ŽĨ͟ ďĞ ĂĚĚĞĚ ďĞĨŽƌĞ ƚŚĞ ƉŚƌĂƐĞ ͞ǁŽƌŬƉůĂĐĞ ŚĞĂůƚŚ ĂŶĚ ƐĂĨĞƚLJ͘͟

38

APPEALS

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

The Reviewers recommend that the Act be 40 amended to explicitly set out the two existing levels of review in the system; namely, the division of internal review specialists of the CŽŵŵŝƐƐŝŽŶ ;ƚŚĞ ͞ŝŶƚĞƌŶĂů ZĞǀŝĞǁ ŝǀŝƐŝŽŶ͟Ϳ ĂŶĚ ƚŚĞ ĞdžƚĞƌŶĂů ZĞǀŝĞǁ Division.

NOT ACCEPTED The SRC does not agree with the codification of the internal review process in legislation.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. # 22

23

24

25

26

Description

Pg. #

21, 22(1), 24(1) & (2), 24.1, 25, 27(1), 28(1.4), 30, 2(v.2), & 11(1) & (2)

The Reviewers recommend that the name ͞ZĞǀŝĞǁ ŝǀŝƐŝŽŶ͟ ďĞ ĐŚĂŶŐĞĚ ƚŽ ŝŶĚŝĐĂƚĞ that it is a body external to and independent of the Commission and a stand-­‐alone agency and that sections 2(v-­‐ 2), 11(1) and (2), 21, 22(1), 24(1) and (2), 24.1, 25, 27(1), 28(1.4), 30 be amended accordingly.

42

22

The Reviewers recommend that section 22 of the Act be amended to provided that review commissioners may continue to exercise powers of a review commissioner after resigning or expiration of their appointment in any proceeding over which they had jurisdiction immediately before the end of their term of appointment.

45

The Reviewers recommend that section 23 be amended to allow the Chair to refer a review to one review commissioner or to a three-­‐member panel of review commissioners where the chief review commissioner determines the matter requires it.

43

The Reviewers recommend that section 23(4) be amended to give the Lieutenant Governor in Council the power to re-­‐ appoint the Chair and review commissioners for one or more successive terms.

44

That section 26 be amended to codify the current practice of the Review Division.

46

23

23(4)

26

2013

Commentary of the 2013 Statutory Review Committee ACCEPTED The SRC recommends the change for the reasons identified by the legal advisors. After consultation with appropriate stakeholders, the SRC recommends that the selection of the name be deferred until the WHSCC brand is approved and that the new name be aligned with the WHSCC brand.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

NOT ACCEPTED After consultation with appropriate stakeholders, the SRC does not agree with the recommendation.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

After consultation with appropriate stakeholders, the SRC recommends that 26 (1) be reviewed and updated to represent the current authority of the WHSCRD.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

Description

Pg. #

Commentary of the 2013 Statutory Review Committee

27

28

26(1)

26(1)(c)

Consideration should be given to whether it is desirable to include a provision which sets out that the Commission and the Review Division do not have jurisdiction over constitutional questions, Canadian Charter of Rights and Freedoms issues and/or questions arising under the Human Rights Act, 2006.

59

ĚĚ ƚŚĞ ǁŽƌĚ ͞ǁŝƚŚĚƌĂǁĂů͟ ĂĨƚĞƌ ͞ĂƐƐŝŐŶŵĞŶƚ͟ ĂŶĚ ƌĞŵŽǀĞ ƚŚĞ ǁŽƌĚƐ ͞ƐƵďĐůĂƐƐ Žƌ ŐƌŽƵƉ͟ ĂŶĚ ƐƵďƐƚŝƚƵƚe ͞ŝŶĚƵƐƚƌLJ͟

48

ACCEPTED The SRC is in agreement with the technical advisors with respect to the recommendation regarding the Canadian Charter of Rights and Freedoms and the Human Rights Act. Please see recommendation #14.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

29

30

26.1

27(2)

Codify the common law in this provision 49 with the addition of words to the effect that a Review Commissioner shall not apply a policy established by the Commission under subsection 5(1) that is inconsistent with the Act or Regulations.

Amend the Act to provide authority to examine and cross-­‐examine witnesses generally, not just those called to bring forward evidence in response and reply and amend the Act to provide that Section 8 of the Public Inquiries Act 2006 shall apply to those witnesses.

50

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

ACCEPTED WITH MODIFICATIONS The SRC recommends the change for the reasons identified by the technical advisors such that all interested parties have the right to call, examine, and cross-­‐examine witnesses.

31

28(1)

2013

Clarify the date that time begins to run and 51 ensure this corresponds with the triggering events set out in the Regulation.

NOT ACCEPTED The SRC has considered the recommendation and does not agree.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. # 32

33

28(4)

28(6)

Description

Pg. #

Provide the Review Division the discretion 52 to conduct hearings orally, electronically or in writing.

Provide the Review Division the discretion 53 to decide who is an interested party and require that the party have a direct interest in the matter being decided.

Commentary of the 2013 Statutory Review Committee ACCEPTED WITH MODIFICATIONS The SRC agrees with the recommendation of the technical advisors with the following modification: Provide the Review Division the discretion to conduct hearings orally or electronically or ͞ǁŝƚŚ ƚŚĞ agreement of all parties the hearing may be conducted ŝŶ ǁƌŝƚŝŶŐ͘͟ ACCEPTED WITH MODIFICATION The SRC agrees with the recommendation of the technical advisors with the following modification: That the Review Commissioner be provided with the discretion to decide who is an interested party and that the party have a direct interest in the matter being decided.

34

28(8)

Provide that the decision shall be made within 60 days after the hearing of the appeal ends.

54

NOT ACCEPTED The SRC does not agree with the recommendation of the technical advisors. Instead the SRC makes the following recommendation in Section 10, Sub-­‐section 10.2 Timeline/Schedule of External Reviews in Part I of ƚŚĞ ^Z ͛Ɛ ƌĞƉŽƌƚ: That the provincial government amend Section 28(8) of the WHSC Act to include: That a hearing must

2013

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

35

36

37

Description

Pg. #

Commentary of the 2013 Statutory Review Committee be held within 60 days of the application and that the decision must be rendered and communicated within 30 days after the date of the hearing, where there is no delay caused by any of the parties involved in the review, or the introduction of new evidence.

NEW (should be added as a subsection to section 28)

Add a provision giving the Review Division 55 explicit authority to disclose information to participants necessary to participate in a hearing. The new provision should also provide that any person receiving a ǁŽƌŬĞƌ͛Ɛ Žƌ ĞŵƉůŽLJĞƌ͛Ɛ ŝŶĨŽƌŵĂƚŝŽŶ ƵŶĚĞƌ the new section may only use that information for the purpose of that review.

In addition, the new provision should specify that Item #8 of the Model Structure of Confidentiality Provision at pages 25 and 26 of this Report applies to information disclosed under the new section.

ACCEPTED

NEW (to come after s. 28)

Give the Review Division the authority to dismiss a review without a hearing in certain prescribed circumstances.

56

ACCEPTED

35

ŚĂŶŐĞ ƚŚĞ ǁŽƌĚƐ ͞ ŽŵŵŝƐƐŝŽŶ͛Ɛ ũƵƌŝƐĚŝĐƚŝŽŶ Žƌ Ă ƋƵĞƐƚŝŽŶ ŽĨ ůĂǁ͟ ƚŽ ͞ ŽŵŵŝƐƐŝŽŶ͛Ɛ ĂƵƚŚŽƌŝƚLJ ƚŽ ĚĞĐŝĚĞ Ă matter or a question of law outside the ŽŵŵŝƐƐŝŽŶ͛Ɛ ũƵƌŝƐĚŝĐƚŝŽŶ͘͟

57

2013

After consultation with appropriate stakeholders, the SRC recommends the change for the reasons identified by the technical advisors. As stated in the ^Z ͛Ɛ ĚĞĐŝƐŝŽŶ ŽŶ recommendation #11, the SRC does not agree with the inclusion of clause 8 of the Model Structure of Confidentiality Provision.

The SRC agrees with the recommendation of the technical advisors to permit the summary dismissal of frivolous or improper claims.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. # 38

37

Description

Pg. #

ŵĞŶĚ ƚŚĞ ƚŝƚůĞ ƚŽ ͞EŽƚŝĨŝĐĂƚŝŽŶ ŽĨ ^ƚĂƚĞĚ ĂƐĞ͟ ĂŶĚ ĂŵĞŶĚ Ɛ͘ ϯϳ ƚŽ ƉƌŽǀŝĚĞ ƚŚĂƚ ƚŚĞ trial division has the power to direct that a person who the trial division determines has a direct interest be notified of the hearing.

58

Commentary of the 2013 Statutory Review Committee ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

PART III

APPLICATION OF ACT

39

41

The Reviewers recommend rewriting this section to provide for (1) a definition of ͞ŝŶĚĞƉĞŶĚĞŶƚ ŽƉĞƌĂƚŽƌ͖͟ ;ϮͿ ƚŚĞ ĐŽǀĞƌĂŐĞ of all independent operators as either deemed workers or workers with optional coverage; (3) setting the amount of coverage.

61

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

PART IV

COMPENSATION AND RIGHT OF ACTION

40

45(8) to

This amendment strengthens the ŽŵŵŝƐƐŝŽŶ͛Ɛ ƌŝŐŚƚƐ ďLJ ĐŽŶǀĞƌƚŝŶŐ ( ͞ƐƵďƌŽŐĂƚŝŽŶ͟ ƚŽ ͞ǀĞƐƚŝŶŐ͟ ǁŚĞƌĞ ƚŚĞ 1 Commission seeks third party recovery.

3

)

63

ACCEPTED

An amendment that consolidates of the residency sections

65

An ameŶĚŵĞŶƚ ŵĂŬĞƐ ƚŚĞ ǁŽƌŬĞƌ͛Ɛ reporting obligations less rigorous

66

41

42

48 to 51

53(1)

The SRC recommends the change for the reasons identified by the technical advisors.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

NOT ACCEPTED The SRC does not support making the changes recommended by the technical advisors.

The SRC agrees with retaining the word ͞ŝŵŵĞĚŝĂƚĞůLJ͘͟ There are more consequences to changing the emphasis in that workers or others may assume that reporting an incident does not have to be

2013

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

43

44

56

57 & 58 (replace)

Description

Pg. #

Commentary of the 2013 Statutory Review Committee done quickly, potentially resulting in delays with respect to reporting the incident. The current practice is working.

An amendment that (1) clarifies that an employer has a duty to report an injury even if it is disputed by the employer, and (2) deletes subsection 3 as redundant.

68

ACCEPTED

This is a new section that (a) provides a ĐŽŵƉƌĞŚĞŶƐŝǀĞ ĚĞĨŝŶŝƚŝŽŶ ŽĨ ͞ŚĞĂůƚŚ ĐĂƌĞ ƉƌŽǀŝĚĞƌ͕͟ ĂŶĚ ;ďͿ ĐŽŶƐŽůŝĚĂƚĞƐ ŝŶƚŽ ŽŶĞ section the provisions of three existing sections containing the duties of health care providers.

70

The SRC recommends the change for the reasons identified by the technical advisors.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

Please see recommendation #50.

2013

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. # 45

46

Description

Pg. # 25

58.1 (replace)

This section consolidates in one place a number of provisions relating to confidentiality. It specifically spells out the instances in which the Commission can disclose worker or employer information, particularly in the case of internal and external review or the health management of the worker. It also ensures that the information disclosed outside of the Commission is used only for purposes consistent with the Workplace Health, Safety and Compensation Act, such as in a review, or otherwise with consent.

75

The Reviewers recommend adding 73 subsections that (1) provide a definition of ͞ƌĞŐŝƐƚĞƌĞĚ ĞŵƉůŽLJĞƌ ƐƉŽŶƐŽƌĞĚ ƉĞŶƐŝŽŶ ƉůĂŶ͟ ;ϮͿ ƉƌŽǀŝĚĞ ĐĞƌƚĂŝŶƚLJ ďLJ ƐƉĞĐŝĨLJŝŶŐ that the claimant must be a member of such a plan at age 65, and (3) specify the pension replacement benefit payable under subsection (1) is subject to the maximum LOE payable as prescribed under s. 80(8).

Commentary of the 2013 Statutory Review Committee ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

NOT ACCEPTED The SRC does not support making the changes recommended. The SRC is concerned that changing these definitions may produce unintended consequences. Assessing the potential impact is beyond the scope of the ^Z ͛Ɛ ŵĂŶĚĂƚĞ͘ WůĞĂƐĞ ƐĞĞ recommendation #37 in Section XI: Financial Sustainability, Sub-­‐section 11.8 Pension Replacement Benefits in Part I of the ^Z ͛Ɛ ƌĞƉŽƌƚ.

47

83.1

The Reviewers recommend amending this 75 section to permit the Commission to collect the overpayment by way of filing a certificate as opposed to commencing an action.

ACCEPTED

MEDICAL AID

77

ACCEPTED

PART V

48

Title, ŚĂŶŐĞ ͞ŵĞĚŝĐĂů ĂŝĚ͟ ƚŽ ͞ŚĞĂůƚŚ ĐĂƌĞ͟ ŝŶ s.2(1)(r), 84 the title of Part V and throughout the Act ʹ 87

2013

The SRC recommends the change for the reasons identified by the technical advisors.

The SRC recommends the change for the reasons

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

49

86(1)

Description

Pg. #

Commentary of the 2013 Statutory Review Committee identified by the technical advisors.

The Reviewers recommend that this subsection be amalgamated into s. 87(1).

78

ACCEPTED

RETURN TO WORK AND REHABILITATION

ACCEPTED

The SRC recommends the change for the reasons identified by the technical advisors.

PART VI

50

89 replace) This is a new section that (a) provides a ĐŽŵƉƌĞŚĞŶƐŝǀĞ ĚĞĨŝŶŝƚŝŽŶ ŽĨ ͞ŚĞĂůƚŚ ĐĂƌĞ proviĚĞƌ͕͟ ĂŶĚ ;ďͿ ĐŽŶƐŽůŝĚĂƚĞƐ ŝŶƚŽ ŽŶĞ section the provisions of three existing sections containing the duties of health care providers.

70

89.1(13)(b)

79

51

52

89.4(2)

Amend s. 89.1(13)(b) to prevent double recovery.

The SRC recommends the change for the reasons identified by the technical advisors. Please see recommendation # 44.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

Amend the section to provide that workers 80 and employers engaged primarily in construction shall be required to comply with the duty to cooperate and re-­‐ employment requirements that may be prescribed in the Policy of the Commission or Regulations made under Section 123.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

PART VII

INDUSTRIAL DISEASES

53

Title, 90(1)(a), 90.1 ʹ Heading, 2(m), 2(o)(iv), 53(b)(ii), 92(2), 124(b)

ŚĂŶŐĞ ͞ŝŶĚƵƐƚƌŝĂů ĚŝƐĞĂƐĞ͟ ƚŽ ͞ŽĐĐƵƉĂƚŝŽŶĂů ĚŝƐĞĂƐĞ͟

81

ACCEPTED

90(1)(b)

The Reviewers recommend that the requirement in Section 90(1)(b) that the

54

2013

The SRC recommends the change for the reasons identified by the technical advisors.

82

ACCEPTED

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

Description

Pg. #

disease is due to the nature of the employment in which the worker is engaged be amended to provide that a worker meets the condition if the disease is due to the nature of any employment in which the worker was employed.

55

Commentary of the 2013 Statutory Review Committee The SRC recommends this change for the reasons identified by the technical advisors. The change reverts the legislation to how it read prior to 1990. As there is no material regarding the change at that time, it appears to be a drafting error in the 1990 consolidation. It also codifies current practice regarding latency of occupational disease.

90(3) & 90(3.1)

Amend s. 90(3.1) to remove the 83 requirement that the worker be employed ŝŶ Ă ƉƌŽĐĞƐƐ ŝŶǀŽůǀŝŶŐ ĂƐďĞƐƚŽƐ ͞Ăƚ Žƌ immediately before the date of ĚŝƐĂďůĞŵĞŶƚ͟ ƚŽ ĞdžƉƌĞƐƐůLJ ŝŶĐŽƌƉŽƌĂƚĞ Ă long latency period, which is known to exist between the exposure and onset of the disease.

ACCEPTED

90(5) & 90(6)

Consideration should be given to deleting these sections.

84

ACCEPTED

92(1), 92(2)(a) & (b)

ŚĂŶŐĞ ͞ŵĞĚŝĐĂů ƌĞĨĞƌĞĞ͟ ŝŶ ^ĞĐƚŝŽŶƐ ϵϮ;ϭͿ ĂŶĚ ϵϮ;ϮͿ;ĂͿ ĂŶĚ ;ďͿ ƚŽ ͞ŵĞĚŝĐĂů ƉƌĂĐƚŝƚŝŽŶĞƌ͟ ĂŶĚ ĚĞĨŝŶĞ ͞ŵĞĚŝĐĂů ƉƌĂĐƚŝƚŝŽŶĞƌ͘͟

85

PART VIII

INJURY FUND AND ASSESSMENTS

58

97

The Reviewers recommend an amended section that more closely aligns with the ŽŵŵŝƐƐŝŽŶ͛Ɛ ŽďũĞĐƚŝǀĞƐ ŝŶ ĐŽůůĞĐƚŝŶŐ ƚŚĞ annual assessment.

88

ACCEPTED

56

57

2013

The SRC recommends the change for the reasons identified by the technical advisors as it codifies current practice.

The SRC recommends the change for the reasons identified by the technical advisors.

ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

The SRC recommends the change for the reasons identified by the technical advisors and notes the change codifies current

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Rec. #

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Commentary of the 2013 Statutory Review Committee practice.

The SRC also notes that this recommendation should be aligned with the change in terms from class to industry.

Please see recommendation #19.

59

60

61

62

NEW (follows s.

101)

The Reviewers recommend insertion of a 90 provision allowing the Commission to apply to the court for an order compelling an employer to produce the records required under section 101.

ACCEPTED

111

An amendment is recommended that allows the Commission to require security not just from temporary employers but also from any employer where appropriate.

91

ACCEPTED

113

118, 118.2 & 122 18.1

2013

The SRC recommends the change for the reasons identified by the technical advisors.

The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

This is an addition to the section that 93 would extinguish the in personam liability of the successor when the employer selling the business in a bona fide transaction delivers a clearance certificate before the transaction closes.

ACCEPTED

The Reviewers recommend amendments 94 to consolidate and strengthen the statutory lien and integrate the lien ƐƵƐƉĞŶƐŝŽŶ ͞ǁŝŶĚŽǁ͟ ŝŶ Ɛ͘ ϭϴ͘ϭ ĂůŽŶŐ ǁŝƚŚ other amendments to move, condense and streamline s. 18.1.

ACCEPTED

The SRC recommends the change for the reasons identified by the technical advisors and note the change codifies current practice.

The SRC recommends the changes for the reasons identified by the technical advisors. The reviewers determined that s. 18.1 is much better suited under the lien section (re: s. 118 etc) and the SRC agrees with this for the purpose of consolidation and appropriate placement.

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IV. SUMMARY OF RECOMMENDATIONS Sec. #

Rec. #

Description

Pg. #

Commentary of the 2013 Statutory Review Committee

PART XI

REVIEW

63

126(2)

The Reviewers recommend that Section 126(2) be amended to lengthen the maximum timeframe between statutory reviews.

100 ACCEPTED

64

NEW The Reviewers recommend that the (under Part legislation specify that some of the XI) committee members must be representative of workers and employers.

The SRC agrees with the recommended change for the reasons identified by the technical advisors. The SRC provides an assessment and makes recommendations on the structure and process in Section XII: Governance in WĂƌƚ / ŽĨ ƚŚĞ ^Z ͛Ɛ ƌĞƉŽƌƚ͘

101 ACCEPTED The SRC recommends the change for the reasons identified by the technical advisors.

Please see Section XII: Governance in Part I of the ^Z ͛Ɛ report.

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ADDENDUM #1 ADDENDUM #1 ʹ THE WORKPLACE HEALTH, SAFETY AND COMPENSATION REVIEW DIVISION

1.1 Introduction

The Legal Review proposed a number of recommendations specific to the WHSCRD. The SRC, as part of its consultation process, discussed the proposed changes with the Workplace Health, Safety and Compensation Review Division (WHSCRD) during meetings in February and July 2013.

Consultation Summary

The WHSCRD provided an overview of its work, relevant statistics, and proposed legislative changes. Some of the key areas for discussion were:

Work processes between the WHSCC and the WHSCRD

WHSCRD processes

1.2 Rules of Procedure and Evidence

The WHSCRD identified a number of areas for improvement with respect to its mandate and practice for consideration by the SRC. These included:

ůĂƌŝĨLJ t,^Z ͛Ɛ ĚŝƐĐƌĞƚŝŽŶͬĂƵƚŚŽƌŝƚLJ ƚŽ ŝƐƐƵĞ Ă ƐƵďƉŽĞŶĂ ƚŽ ĐŽŵƉĞů ĂƚƚĞŶdance of witnesses and production of evidence

Confirm the private nature of WHSCRD hearings

Determine the grounds upon which the WHSCRD will reconsider a decision

Authority to terminate a review application if the applicant refuses to accept a hearing date within a specified time period of 12 months and does not provide an acceptable response to notification as to why the review should not be dismissed

Enable the WHSCRD to proceed with an oral hearing in the absence of any other party which refused to accept a hearing date within a reasonable time

Specify the methods of effecting notice, and, when notice is considered to have been deemed to be effected

Specify the order of presentations and examinations during hearings

Assert the private nature of the WHSCRD hearings, based on that found in the Public Inquiries Act, (sections 6-­‐7) with appropriate modifications.

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ADDENDUM #1

In many instances, the WHSCRD proposed changes and/or additions to the WHSC Act or its regulations to address these aspects of the work processes.

Assessment

The SRC consulted with its technical advisors regarding the work processes raised by the WHSCRD. The technical advisors indicated that Section 27.(1) of the WHSC Act allows the WHSCRD to develop rules of procedure and evidence to deal with these work processes, which is an appropriate mechanism. This authority is also supported by section 9 of the Public Inquiries Act, 2006 which addresses other related work processes, such as attendance of witnesses and production of evidence.

The SRC notes that the 2001 Task Force recommended that WHSCRD develop rules of procedure and evidence and to address training and professional development requirements for review commissioners. The training and professional development recommended by the Task Force was provided for review commissioners. The provincial government did not accept the recommendation to develop rules of evidence and procedure.

The technical advisors offered a supplemental recommendation to consider removal of the requirement for the approval by the Lieutenant-­‐Governor in Council (LGIC) for such rules of procedure and evidence. The SRC did not agree with this recommendation, ŶŽƚŝŶŐ ƚŚĂƚ ƚŚĞ >'/ ͛Ɛ ĂƉƉƌŽǀĂů ƉƌŽǀŝĚĞĚ ĂŶ ŝŵƉŽƌƚĂŶƚ ĨƵŶĐƚŝŽŶ ŽĨ ŽǀĞƌƐŝŐŚƚ ĨŽƌ ƚŚĞ implementation of rules of procedure and evidence.

The SRC recognizes and agrees with the changes the WHSCRD has made to improve client service; however, the SRC concludes that changes in legislation are not required.

The SRC concludes that the development of rules of procedure and evidence as recommended would address many of the administrative concerns reported by the WHSCRD.

Recommendation

2) That the WHSCRD, as permitted under section 27. (1) of the WHSC Act, develop rules of procedure and evidence which comply with the intent of the legislation, and that the provincial government support this initiative.

1.3 Delegation of Administrative Responsibilities

The WHSCRD proposed:

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ADDENDUM #1 ƚŚĂƚ ƐĞĐƚŝŽŶ Ϯϰ ŽĨ ƚŚĞ Đƚ͕ ǁŚŝĐŚ ĚĞĂůƐ ǁŝƚŚ ͞ŽĨĨŝĐĞƌƐ ĂŶĚ ĞŵƉůŽLJĞĞƐ͕͟ ďĞ amended to include a delegation provision similar to that found in Section 7(3) as it pertains to the ability of the WHSCC͛Ɛ ŽĂƌĚ ŽĨ ŝƌĞĐƚŽƌƐ ƚŽ delegate administrative functions to its staff.

Assessment

The SRC reviewed the recommendation and concluded that the delegation of administrative functions to staff is an internal matter and does not require a change in legislation.

1.4 Returning a Matter to the WHSCC

The WHSCRD proposed ͞ƚŚĂƚ ƚŚĞ ĞdžŝƐƚŝŶŐ ΀t,^ Z ΁ ZĞŐƵůĂƚŝŽŶ ϭϭ ďĞ ŵŽǀĞĚ ŝŶƚŽ WĂƌƚ // of the Act, with modification. The language should be changed so that the Review Division [WHSCRD] may make this direction at any time prior to the hearing, rather than ƵƉŽŶ ƌĞǀŝĞǁ ŽĨ ƚŚĞ ƉƉůŝĐĂƚŝŽŶ ĂŶĚ ĞĐŝƐŝŽŶ ĂůŽŶĞ͘͟

Assessment

The SRC reviewed regulation 11 and concludes that it gives the Review Commissioner the authority to issue an order returning the matter to the WHSCC for a decision at any time. Further, the SRC notes that section 28(4.2) of the WHSC Act provides the Review Commissioner with the legislative authority to return the matter to the WHSCC for a decision at any time.

The SRC does not recommend a change at this time.

1.5 Ability of Board Staff/Counsel to Pose Questions

The WHSCRD proposed ͞ƚŚĂƚ Ă ƉƌŽǀŝƐŝŽŶ ďĞ ĂĚĚĞĚ ƚŽ ƚŚĞ ZĞŐƵůĂƚŝŽŶƐ ƉĞƌŵŝƚƚŝŶŐ ŽĂƌĚ staff or counsel to pŽƐĞ ƋƵĞƐƚŝŽŶƐ ĚƵƌŝŶŐ ŚĞĂƌŝŶŐƐ͘͟

Assessment

The WHSC Act ĞŵƉŽǁĞƌƐ ZĞǀŝĞǁ ŽŵŵŝƐƐŝŽŶĞƌƐ ƚŽ ĚĞƚĞƌŵŝŶĞ ŝĨ ƚŚĞ t,^ ͛Ɛ ĚĞĐŝƐŝŽŶƐ uphold or are contrary to the WHSC Act, its regulations, or policy. While the WHSC Act also empowers the WHSCRD to employ staff to support its work, the decision-­‐making authority rests with the Review Commissioner.

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ADDENDUM #1 The SRC does not agree with permitting WHSCRD Board staff or counsel to pose questions during hearings. The SRC concludes that only the Review Commissioner may pose questions on behalf of the WHSCRD at a hearing.

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ADDENDUM #2 ADDENDUM #2 ʹ Housekeeping Amendment re: Section 74.1 (1.1)

2.1 Introduction

The WHSCC identified a drafting error in section 74.1(1.1) of the WHSC Act. On the advice of the Office of the Legislative Counsel, this error was referred to the SRC to have it rectified through the statutory review process.

The WHSCC provided the following background: In 1992 the Act was amended to add a requirement to review extended earnings loss benefits annually and to apply the CPI for Canada to those benefits. Section 74.1(1) was added: 74.1. (1) Extended earnings loss benefits being paid to a worker shall be reviewed annually and the Consumer Price Index for Canada as published by Statistics Canada shall be applied to that worker͛Ɛ estimated annual earnings prior to the commencement of his or her loss of earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

In 2001, this section was further amended to remove the requirement to review extended earnings loss benefits annually, while maintaining the requirement for annually indexing those benefits by the CPI for Canada. The Explanatory Notes accompanying the draft bill stated: Clause 18 of the Bill would amend section 74.1 of the Act to remove the requirement for an annual review of long term claims and retain the requirement for annual indexing.

The wording of s. 74.1 (1.1) in the Bill passed in the House of Assembly for the indexing requirement was as follows: 74.1 (1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annual to his or her estimated annual earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

This is how the Act remains worded today.

Assessment

dŚĞ t,^ ŝŶĚŝĐĂƚĞƐ ƚŚĂƚ ͟ŝt has become apparent that the words ͞ƉƌŝŽƌ ƚŽ ƚŚĞ ĐŽŵŵĞŶĐĞŵĞŶƚ ŽĨ ŚŝƐ Žƌ ŚĞƌ ůŽƐƐ ŽĨ ĞĂƌŶŝŶŐƐ͟ were dropped in the 2001 amendment pĂƐƐĞĚ ŝŶ ƚŚĞ ,ŽƵƐĞ ŽĨ ƐƐĞŵďůLJ͘͟

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ADDENDUM #2 dŚĞ t,^ ŚĂƐ ĚŝƐĐƵƐƐĞĚ ƚŚŝƐ ͞with the Office of the Legislative Counsel and they have confirmed that these words were likely dropped inadvertently since the drafting instruction was to maintain, not change, the indexing requirement. The new section should have read (emphasis added):͟ 74.1 (1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annual to his or her estimated annual earnings prior to the commencement of his or her loss of earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

dŚĞ t,^ ŚĂƐ ĐŽŶĨŝƌŵĞĚ ƚŚĂƚ ͞the earnings used in the referenced calculation are pre-­‐ injury earnings and therefore the operational area performs the calculation as if the missing words were still there. This is correct since there was no legislative intent to change the practice in applying the annual indexing to extended earnings loss benefits.͟

The SRC concludes that the change to section 74.1(1.1) as recommended by the WHSCC should be made.

Recommendation

3) That the provincial government amend section 74.1(1.1) to correct a drafting error and ensure it reads thusly: 74.1 (1.1) Where a worker is in receipt of extended earnings loss benefits, the Consumer Price Index for Canada as published by Statistics Canada shall be applied annual to his or her estimated annual earnings prior to the commencement of his or her loss of earnings resulting from the injury and the benefits shall be recalculated in accordance with subsection 74(2).

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