Return to Work

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Preventing injuries at work is everyone’s responsibility. When a workplace injury occurs, it is important for employers to promote early and safe return to work (ESRTW) to assist the injured worker back into the workplace. Effectively managing return to work also minimizes human and financial costs.

ESRTW is the process where injured workers return to the workplace in a safe and timely manner while still recovering from their injury. An ESRTW program will ensure that you know what to do when an injury occurs. It provides a consistent approach that will help when challenges occur and return to work plans need to be adjusted. It also defines the policies, procedures, and best practices to follow.

Return to work (RTW) is a broader category that encompasses ESRTW but also includes other processes that help a worker return to the workplace following an injury.

The first priority of ESRTW is to return the worker to their pre-injury job. To achieve this goal, the workplace parties including the employer and the injured worker must co-operate and develop an ESRTW plan.

All employers and workers are obligated to cooperate in a worker’s early and safe return to suitable and available employment with the injury employer. [WHSCC Act, s. 89]

Employer Responsibilities

Employers must:

Co-operate in the ESRTW of a worker injured in their employment by: [WHSCC Act, s. 89(1)]

Contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the worker’s recovery period;
Providing suitable employment that is available and consistent with the worker's functional abilities and that, where possible, restores the worker's pre-injury earnings;
Giving information about the worker’s return to work to WorkplaceNL; and
Doing other things that may be prescribed in WHSCC Regulations.

Not disclose information concerning a worker’s functional abilities, as provided by a health care provider, unless to a person who is assisting the employer in returning the worker to work. [WHSCC Act, s. 89.3(3)]
Comply with the requirements respecting the duty to co-operate and the re-employment of those workers as prescribed in Regulations, where workers are those who perform construction work. [WHSCC Act, s. 89.4]

Employers may:

Request and receive from WorkplaceNL medical information related to an injured worker if WorkplaceNL believes that providing the information is reasonably necessary for the employer’s determination of the worker's fitness to return to work. [WHSCC Act, s. 58.1(1)]
May request from a health care provider information concerning the worker's functional abilities on the form that may be required by WorkplaceNL. [WHSCC Act, s. 89.3(1)]

Reemployment obligation

WorkplaceNL, the employer, and the worker all have a role to play in re-employment.

For an injury to a worker which occurs on or after January 1, 2002, the employer must: [WHSCC Act, s. 89.1(17)]

Re-employ the worker who is unable to work in their pre-injury job as a result of a workplace injury if: [WHSCC Act, s. 89.1(1)]

The worker had been employed continuously for at least one year by the employer immediately before the date of injury; [WHSCC Act, s. 89.1(2)]
The employer regularly employs 20 or more workers; and [WHSCC Act, s. 89.1(3)]
The worker is medically able to perform the essential duties of the pre-injury employment or to perform suitable work.

Offer to re-employ the worker in the position they held on the date of injury, or offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of injury, when the worker is medically able to perform the essential duties of their pre-injury employment. [WHSCC Act, s. 89.1(5)]
Offer the worker the first opportunity to accept suitable employment that may become available with the employer, when the worker is medically able to perform suitable work but is unable to perform the essential duties of their pre-injury employment. [WHSCC Act, s. 89.1(6)]
Accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship. [WHSCC Act, s. 89.1(7)]
May rebut the presumption by WorkplaceNL that they have not fulfilled their obligation to re-employ in cases where an employer re-employs a worker and then terminates the employment within 6 months by showing that the termination of the worker's employment was not related to their injury. [WHSCC Act, s. 89.1(10)]
Meet their obligations to re-employ despite any conflict with a collective agreement that is binding upon the employer, and where the employer's obligations give a worker greater re-employment terms than the collective agreement, this obligation to re-employ prevails over the collective agreement. Obligations must not displace the seniority provisions of a collective agreement. [WHSCC Act, s. 89.1(15) and (16)]

When an injured worker was injured prior to January 1, 2002, they are not entitled to a labour market re-entry assessment or plan, except where WorkplaceNL considers it appropriate. [WHSCC Act, s. 89.2(8)]

WorkplaceNL Responsibilities

WorkplaceNL is responsible for facilitating the workplace parties in the ESRTW process by:

Communicating to the workplace parties their statutory obligations to co-operate in the ESRTW process;
Ensuring the return to work plans are achieving the hierarchy of return to work priorities (refer to Policy RE-18, Hierarchy of Return to Work and Accommodation) and are consistent with the worker’s functional abilities (refer to Policy RE-03, Functional Abilities Information for Return to Work);
Monitoring activities, progress, and co-operation of the workplace parties;
Proactively managing the medical rehabilitation of the worker in consultation with the worker and health care provider(s);
Determining compliance with the obligation to co-operate and, where applicable, to re-employ;
Offering or providing dispute resolution; and
Communicating regularly and effectively with the workplace parties and health care providers.

Where WorkplaceNL receives a request from a worker's employer for medical information related to an injured worker and the commission believes that providing the information to the employer is reasonably necessary for the determination of the worker's fitness to return to work, WorkplaceNL may provide the information to the employer. Where WorkplaceNL provides an employer with information about a worker, the worker is considered to have consented to the provision of the information. WorkplaceNL must inform a worker when it provides information about them to their employer. [WHSCC Act, s. 58.1]

WorkplaceNL:

May determine the following matters on its own initiative or shall determine them if a worker and an employer disagree about the fitness of the worker to return to work: [WHSCC Act s. 89.1(4)]

Where the worker has not returned to work with the employer, whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work; and
Where WorkplaceNL has previously determined that the worker is medically able to perform suitable work, whether the worker is medically able to perform the essential duties of the worker's pre-injury employment.

Presumes the employer has not fulfilled their obligation to re-employ when an employer re-employs a worker and then terminates the employment within six months. [WHSCC Act, s. 89.1(9)]
Must determine whether an employer has fulfilled their obligations to re-employ a worker when requested by the worker except where a worker who has been re-employed and whose employment is terminated within six months where the request is made more than three months after the date of termination of employment. [WHSCC Act, s. 89.1(11) and (12)]
May decide the employer has not fulfilled the employer's obligations to a worker and may: [WHSCC Act, s. 89.1(13) and (14)]

Levy a penalty on the employer, an amount owing to WorkplaceNL and may be added to the employer's assessment and payment enforced under the Act, not exceeding the amount of the worker's net average earnings for the 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; and
Make payments to the worker for a maximum of one year as if the worker were entitled to payments under the Act.

May contact the employer and the worker to monitor their progress on returning the worker to work to determine whether they are fulfilling their obligations to co-operate and to determine whether any assistance is required to facilitate the worker's return to work. [WHSCC Act, s. 89(3)]
May suspend, reduce or terminate the worker's compensation, where it determines that a worker has failed to cooperate in ESRTW. [WHSCC Act, s. 89(7)]
May levy a penalty on the employer not exceeding the cost to the commission of providing benefits, return to work and rehabilitation services to the worker while the non-compliance continues where it determines that an employer has failed to cooperate in ESRTW. A penalty is an amount owing to WorkplaceNL and may be added to the employer's assessment and payment. [WHSCC Act, s. 89(8) and(9)]
May, with the approval of the Lieutenant-Governor in Council, make Regulations that outline the obligations of an employer engaged primarily in construction and a worker who performs construction work in respect of a worker's ESRTW and the re-employment of a worker. [WHSCC Act, s. 123(2.1)(b)]

Labour market re-entry assessment and plan

WorkplaceNL will provide a worker with a labour market re-entry assessment and plan under certain conditions. WorkplaceNL must:

Provide a worker with a labour market re-entry assessment when: [WHSCC Act, s. 89.2(1)]

It is unlikely that the worker will be re-employed by their employer because of the nature of the injury;
The worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings; or
The worker's employer is not co-operating in the ESRTW of the worker.

Determine, after reviewing the results of an assessment, whether a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury, and must determine the employment that is suitable for the worker. [WHSCC Act, s. 89.2(2)]
Arrange for a plan to be prepared for the worker where WorkplaceNL determines that a worker requires a labour market re-entry plan. A plan must contain the steps necessary to enable a worker to re-enter the labour market in the employment that is suitable for the worker. [WHSCC Act, s. 89.2(3) and (5)].
Prepare the labour market re-entry plan in consultation with: [WHSCC Act, s. 89.2(4)].

The worker and, unless WorkplaceNL considers it inappropriate to do so, the worker's employer; and
The worker's health care providers if WorkplaceNL considers it necessary to do so.

Pay the expenses related to a labour market re-entry assessment and plan that WorkplaceNL considers appropriate to enable the worker to re-enter the labour market. [WHSCC Act, s. 89.2(7)]

Health Care Provider Responsibilities

A health care provider must:

Give WorkplaceNL, the worker and the employer information concerning the worker's functional abilities on the form that may be required by WorkplaceNL at the request of the worker or the worker's employer. [WHSCC Act, s. 89.3(1)]

Health care providers will be paid a fee set by WorkplaceNL for providing information concerning the worker's functional abilities. [WHSCC Act, s. 89.3(2)]

Worker Responsibilities

Workers must:

Co-operate in their ESRTW by: [WHSCC Act, s. 89(2)]

Contacting their employer as soon as possible after the injury occurs and maintaining communication throughout the period of their recovery;
Assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, where possible, restores their pre-injury earnings, and accept this suitable employment;
Giving WorkplaceNL the information they may request concerning the worker's return to work; and
Doing other things that may be prescribed in regulations under the WHSCC Act.

Notify WorkplaceNL of any difficulty or dispute concerning co-operation with the employer in their ESRTW. [WHSCC Act, s. 89(4)]
Seek and co-operate in any medical aid or treatment that, in the opinion of WorkplaceNL, promotes the worker's recovery and return to work. [WHSCC Act, s. 54.1(1)]
Co-operate in all aspects of a labour market re-entry assessment or plan provided to the worker. [WHSCC Act, s. 89.2(6)]

Related Topics

Earnings

Earnings includes a share or portion of proceeds or profits referred to in subparagraph (z)(i). [WHSCC Act, s. 2(1)(h)]

WorplaceNL

Formerly known as the Workplace Health, Safety and Compensation Commission (WHSCC) or the Commission.

Policy RE-18

Hierarchy of Return to Work and Accommodation https://workplacenl.ca/site/uploads/2019/06/re-18-hierarchy-of-return-to-work-and-accommodation.pdf

Policy RE-03

Functional Abilities Information for Return to Work https://workplacenl.ca/site/uploads/2019/06/re-03-functional-abilities-information-for-return-to-work-2017-05-25.pdf

Net average earnings

The net earnings of a worker means his or her average earnings while employed in the industry in which the worker was injured, less the total of:

Unemployment insurance contributions for those earnings;
Canada Pension Plan contributions for those earnings; and
Probable income tax deductions for those earnings based on appropriate tables produced by Revenue Canada. [WHSCC Act, s. 2(1)(v)]

WORKPLACE HEALTH, SAFETY AND COMPENSATION ACT
R.S.N.L. 1990, c. W-11

Section 2 Definitions

2. (1) In this Act

(a) Repealed. [S.N.L. 1994, c. 12, s. 1]

(b) "board of directors" means the board of directors appointed under section 4;

(c) "class" means the class into which an industry has been assigned on the division of industries into classes under section 94;

(c.1) "cohabiting partner" means either of 2 persons who are cohabiting and

(i) have cohabited continuously in a conjugal relationship outside marriage for not less than 1 year, or

(ii) have entered into a written agreement in respect of their cohabitation, in which they agree on their respective rights and obligations during cohabitation, upon ceasing to cohabit or upon the death of either of them;

(d) "commission" means the Workplace Health, Safety and Compensation Commission continued under section 3;

(e)"compensation" means compensation paid in accordance with this Act to a worker or his or her dependents in respect of an injury;

(f) "dependent" means a member of the family of a worker who is wholly or partly dependent upon his or her earnings at the time of the death of the worker or who, but for the incapacity due to the injury, would have been so dependent;

(g) "director" means a director of a corporation;

(g.1) "disability" means the loss of earning capacity of a worker as a result of an injury;

(h) "earnings" includes a share or portion of proceeds or profits referred to in subparagraph (z)(i);

(i) "educational institution" means those institutions so prescribed by the regulations;

(j) "employer" means an employer to whom this Act applies and who is engaged in, about or in connection with an industry in the province and includes

(i) a person having in his or her service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in a work in or about an industry within the scope of this Act,

(ii) the principal, contractor and subcontractor referred to in section 120,

(iii) in respect of an industry referred to in subparagraph (i) a receiver, liquidator, executor, administrator and a person appointed by a court or a judge who has authority to carry on an industry,

(iv) a municipality,

(v) the Crown in right of Canada where it may in its capacity of employer submit to the operation of this Act,

(vi) the Crown and a permanent board or commission of the Crown where the province may in its capacity of employer submit itself or a board or commission to the operation of this Act, and

(vii) in respect to the industry of fishing, whaling or sealing, the managing owner or person operating a boat, vessel or ship employed or intended to be employed in the industry;

(j.1) "employer-sponsored pension plan" includes

(i) a pension plan that is registered with and certified by the Superintendent of Pensions under the Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada, and

(ii) a pension plan that is established under an Act of the province;

(ii) the principal, contractor and subcontractor referred to in section 120,

(iii) in respect of an industry referred to in subparagraph (i) a receiver, liquidator, executor, administrator and a person appointed by a court or a judge who has authority to carry on an industry,

(iv) a municipality,

(v) the Crown in right of Canada where it may in its capacity of employer submit to the operation of this Act,

(vi) the Crown and a permanent board or commission of the Crown where the province may in its capacity of employer submit itself or a board or commission to the operation of this Act, and

(vii) in respect to the industry of fishing, whaling or sealing, the managing owner or person operating a boat, vessel or ship employed or intended to be employed in the industry;

(k) "employment" means and refers to the whole or a part of an establishment, undertaking, work, operation, trade or business within the scope of this Act, and in the case of an industry not as a whole within the scope of this Act includes a department of part of the industry that would if carried on separately be within the scope of this Act;

(l) "fishing" means fishing for gain, other than for sport, in tidal waters, and

(i) includes fishing for anadromous fish while in those waters,

(ii) is considered to include work performed in the functioning, while fishing or proceeding to or returning from fishing, of the vessel used for fishing, and

(iii) is considered to include other work incidental to or connected with fishing usually performed by persons engaged in fishing;

(l.1) "impairment" means a physical or functional abnormality or loss, including disfigurement, as a result of an injury;

(m) "industrial disease" means a disease prescribed by regulation under section 90 and another disease peculiar to or characteristic of a particular industrial process, trade or occupation;

(n) "industry" includes the whole or a part of an industry, operation, undertaking, establishment, work, trade or business that is not excluded by section 38;

(o) "injury" means

(i) an injury as a result of a chance event occasioned by a physical or natural cause,

(ii) an injury as a result of a wilful and intentional act, not being the act of the worker,

(iii) disablement,

(iv) industrial disease, or

(v) death as a result of an injury

arising out of and in the course of employment and includes a recurrence of an injury and an aggravation of a pre-existing condition but does not include stress other than stress that is a reaction to a traumatic event or events;

(p) "injury fund" means the fund referred to in section 93;

(q) "invalid" means physically or mentally incapable of earning financial remuneration;

(r) "medical aid" means medical, surgical and dental aid, hospital and skilled nursing services and a prosthesis or apparatus and the repairing and replacement of them, transportation and other matters and things that the commission may authorize or provide;

(s) "member of the family" includes spouse, cohabiting partner, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister and a person who stood in place of a parent to the worker or to whom the worker stood in place of a parent, whether related to him or her by consanguinity or not, and where the worker is the parent or grandparent of an illegitimate child, includes that child and where the worker is an illegitimate child, includes his or her parents and grandparents;

(t) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(u) "municipality" includes the City of St. John's, the City of Corner Brook, the City of Mount Pearl, the St. John's Metropolitan Area and a town, community, region and local service district, established or continued under the Municipalities Act;

(v) "net earnings" of a worker means his or her average earnings while employed in the industry in which the worker was injured, less the total of

(i) unemployment insurance contributions for those earnings,

(ii) Canada Pension Plan contributions for those earnings, and

(iii) probable income tax deductions for those earnings based on appropriate tables produced by Revenue Canada;

(v.1) Repealed. [S.N.L. 2001, c. 10, s. 1]

(v.2) "review division" means the review division established under section 21;

(w) "settlement" means a settlement whether or not it was made before or after an action has been started in a court;

(x) "spouse" means either of two persons who

(i) are married to each other,

(ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or

(iii) have gone through a form of a marriage with each other, in good faith, that is void and are cohabiting or have cohabited with each other within the preceding year;

(y) "work training program" means a training program prescribed by the regulations; and

(z) "worker" means a worker to whom this Act applies and who is a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes

(i) in respect of the industry of fishing, whaling or sealing, a person who becomes a member of the crew of a boat, vessel or ship under an agreement to prosecute a fishing, whaling or sealing voyage in the capacity of a person receiving a share of the voyage or is described in the Shipping Articles as a person receiving a share of the voyage or agrees to accept in payment for his or her services a share or portion of the proceeds or profits of the venture, with or without other remuneration, or is employed on a boat, vessel or ship provided by the employer,

(ii) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment,

(iii) a part-time or casual worker, and

(iv) an executive officer, manager or director of an employer.

(2) Notwithstanding paragraph (1)(o), stress that may be the result of an employer's decision or action relating to the employment of a worker including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the worker's employment does not constitute an injury.

[S.N.L. 1992, c. 29, s. 1; 1994, c. 12, s. 1; 1998, c. 19, s. 3; 2001, c. 10, s. 1; 2001, c. 22, s. 40; 2018, c. 38, s. 2; 2018, c. 35, s. 1]

Part IV COMPENSATION AND RIGHT OF ACTION

Section 54.1 Mitigation of injury

54.1 (1) A worker shall

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

(b) seek out and co-operate in any medical aid or treatment that, in the opinion of the commission, promotes the worker's recovery and return to work;

(c) take all reasonable steps to provide to the commission full and accurate information on a matter relevant to a claim for compensation; and

(d) notify the commission immediately of a change in circumstances that affects or may affect the worker's initial or continuing entitlement to compensation.

(2) The commission may suspend, reduce or terminate any compensation otherwise payable to a worker where the worker fails to comply with subsection (1).

[S.N.L. 1998, c. 19, s. 12]

54.2 Repealed. [S.N.L. 2001, c. 10, s. 13]

Section 58.1 Medical information

58.1 (1) Where the commission receives a request from a worker's employer for medical information related to an injured worker and the commission believes that providing the information to the employer is reasonably necessary for the determination of the worker's fitness to return to work, the commission may provide the information to the employer.

(2) Where the commission provides an employer with information about a worker under subsection (1), the worker is considered to have consented to the provision of the information.

(3) The commission shall inform a worker where it provides information about him or her to his or her employer under subsection (1).

[S.N.L. 1998, c. 19, s. 13]

Part VI RETURN TO WORK AND REHABILITATION

Section 89 Duty to co-operate in return to work

89. (1) An employer shall co-operate in the early and safe return to work of a worker injured in his or her employment by,

(a) contacting the worker as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery;

(b) providing suitable employment that is available and consistent with the worker's functional abilities and that, where possible, restores the worker's pre-injury earnings;

(d) doing other things that may be prescribed in regulations made under section 123.

(2) The worker shall co-operate in his or her early and safe return to work by,

(a) contacting his or her employer as soon as possible after the injury occurs and maintaining communication throughout the period of the worker's recovery;

(b) assisting the employer, as may be required or requested, to identify suitable employment that is available and consistent with the worker's functional abilities and that, where possible, restores his or her pre-injury earnings;

(d) giving the commission the information the commission may request concerning the worker's return to work; and

(e) doing other things that may be prescribed in regulations made under section 123.

(3) The commission may contact the employer and the worker to monitor their progress on returning the worker to work, to determine whether they are fulfilling their obligations to co-operate and to determine whether any assistance is required to facilitate the worker's return to work.

(4) The employer or the worker shall notify the commission of any difficulty or dispute concerning their co-operation with each other in the worker's early and safe return to work.

(5) The commission shall attempt to resolve the dispute through mediation and, if mediation is not successful, shall decide the matter within 60 days after receiving the notice or within the longer period that the commission may determine.

(6) Where mediation is provided under this section, the mediator shall not participate in a hearing or proceeding in relation to the subject of the mediation without the consent of the parties to the hearing or proceeding.

(7) Where the commission determines that a worker has failed to comply with this section, the commission may suspend, reduce or terminate the worker's compensation.

(8) Where the commission determines that an employer has failed to comply with this section, the commission may levy a penalty on the employer not exceeding the cost to the commission of providing benefits, return to work and rehabilitation services to the worker while the non-compliance continues.

(9) A penalty payable under subsection (8) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

[S.N.L. 2001, c. 10, s. 21]

Section 89.1 Obligation to re-employ

89.1 (1) An employer of a worker who has been unable to work as a result of an injury and who, on the date of the injury, had been employed continuously for at least one year by the employer shall offer to re-employ the worker in accordance with this section.

(2) This section applies only to an employer and a worker who had been in an employment relationship for a continuous period of one year immediately prior to the date of the worker's injury.

(3) This section does not apply to an employer who regularly employs fewer than 20 workers.

(4) The commission may determine the following matters on its own initiative or shall determine them if a worker and an employer disagree about the fitness of the worker to return to work:

(a) where the worker has not returned to work with the employer, whether the worker is medically able to perform the essential duties of his or her pre-injury employment or to perform suitable work; and

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

(5) When a worker is medically able to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall,

(a) offer to re-employ the worker in the position that the worker held on the date of injury; or

(b) offer to provide the worker with alternative employment of a nature and at earnings comparable to the worker's employment on the date of injury.

(6) When a worker is medically able to perform suitable work but is unable to perform the essential duties of his or her pre-injury employment, an employer to whom this section applies shall offer the worker the first opportunity to accept suitable employment that may become available with the employer.

(7) An employer to whom this section applies shall accommodate the work or the workplace for the worker to the extent that the accommodation does not cause the employer undue hardship.

(8) An employer is obligated under this section until the earliest of,

(a) 2 years after the date of disability;

(b) one year after the worker is medically able to perform the essential duties of his or her pre-injury employment; and

(9) Where an employer re-employs a worker in accordance with this section and then terminates the employment within 6 months, the employer is presumed not to have fulfilled the employer's obligations under this section.

(10) An employer may rebut the presumption in subsection (9) by showing that the termination of the worker's employment was not related to the injury.

(11) Upon the request of a worker or on its own initiative, the commission shall determine whether an employer has fulfilled the employer's obligations to the worker under this section.

(12) The commission is not required to consider a request under subsection (11) by a worker who has been re-employed and whose employment is terminated within 6 months where the request is made more than 3 months after the date of termination of employment.

(13) Where the commission decides that an employer has not fulfilled the employer's obligations to a worker, the commission may,

(a) levy a penalty on the employer not exceeding the amount of the worker's net average earnings for the 12 months immediately preceding the beginning of the loss of earnings as a result of the injury; and

(b) make payments to the worker for a maximum of one year as if the worker were entitled to payments under section 74.

(14) A penalty payable under subsection (13) is an amount owing to the commission and may be added to the employer's assessment and payment enforced under section 118.

(15) Where this section conflicts with a collective agreement that is binding upon an employer, and the employer's obligations under this section give a worker greater re-employment terms than does the collective agreement, this section prevails over the collective agreement.

(16) Subsection (15) shall not operate to displace the seniority provisions of a collective agreement.

(17) This section shall only apply in respect of an injury to a worker which occurs on or after January 1, 2002.

[S.N.L. 2001, c. 10, s. 21; 2009, c. 7, s. 7]

Section 89.2 Labour market re-entry assessment and plan

89.2 (1) The commission shall provide a worker with a labour market re-entry assessment where

(a) it is unlikely that the worker will be re-employed by his or her employer because of the nature of the injury;

(b) the worker's employer has been unable to arrange work for the worker that is consistent with the worker's functional abilities and that restores the worker's pre-injury earnings; or

(2) The commission shall determine, after reviewing the results of an assessment, whether a worker requires a labour market re-entry plan in order to enable the worker to re-enter the labour market and reduce or eliminate the loss of earnings that may result from the injury, and shall determine the employment that is suitable for the worker.

(3) Where the commission determines that a worker requires a labour market re-entry plan, the commission shall arrange for a plan to be prepared for the worker.

(4) A labour market re-entry plan shall be prepared in consultation with

(a) the worker and, unless the commission considers it inappropriate to do so, the worker's employer; and

(b) the worker's health care providers if the commission considers it necessary to do so.

(5) A plan shall contain the steps necessary to enable a worker to re-enter the labour market in the employment that is suitable for the worker.

(6) A worker shall co-operate in all aspects of a labour market re-entry assessment or plan provided to the worker.

(7) The commission shall pay the expenses related to a labour market re-entry assessment and plan that the commission considers appropriate to enable the worker to re-enter the labour market.

(8) Where a worker was injured prior to January 1, 2002 and has received services under section 89 as it read prior to January 1, 2002, the worker shall not be entitled to a labour market re-entry assessment or plan except where the commission considers it appropriate.

[S.N.L. 2001, c. 10, s. 21]

Section 89.3 Provision of information

89.3 (1) Where a worker or a worker's employer requests, a health care provider shall give the commission, the worker and the employer information concerning the worker's functional abilities on the form that may be required by the commission.

(2) The commission shall pay a health care provider for providing information under this section and shall fix the fee to be paid.

(3) A person who receives the information in subsection (1) on behalf of an employer shall not disclose that information except to a person who is assisting the employer in returning the worker to work.

[S.N.L. 2001, c. 10, s. 21]

Section 89.4 Construction industry

89.4 (1) Sections 89 and 89.1 shall not apply to a worker who performs construction work and to an employer who is engaged primarily in construction in respect of those of his or her workers who perform construction work.

(2) Notwithstanding subsection (1), a worker who performs construction work and an employer who is engaged primarily in construction shall be required to comply with the requirements respecting the duty to co-operate and the re-employment of those workers that may be prescribed in regulations made under section 123.

[S.N.L. 2001, c. 10, s. 21]

Part IX REGULATIONS

Section 123 General regulations

123. (1) Subject to the approval of the Lieutenant-Governor in Council, the commission may make regulations that are considered necessary for the administration of this Act and may prescribe the form and use of payrolls, records, reports, certificates, declarations and documents that may be required.

(2) Subject to the approval of the Lieutenant-Governor in Council, the commission may by regulation prescribe penalties for the violation of this Act or of rules, regulations or orders made under the authority of this Act.

(2.1) The commission may, with the approval of the Lieutenant-Governor in Council, make regulations

(a) prescribing the obligations of an employer and a worker under section 89; and

(b) prescribing the obligations of an employer engaged primarily in construction and a worker who performs construction work in respect of a worker's early and safe return to work and the re-employment of a worker.

(3) Regulations made under this section may be made with retroactive effect.

[S.N.L. 2001, c. 10, s. 23]

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