Computation of benefits
38.6(1)Where a worker dies on or after January 1, 1982, but before January 1, 1998, as a result of an injury incurred before or after January 1, 1982, benefits shall be payable to the worker’s dependents as set out in this section.
38.6(2)Where a worker is survived by a dependent spouse, there shall be payable to that spouse up to age sixty-five or for two years, whichever is greater, subject to subsection (3), benefits equal to eighty per cent of the worker’s average net earnings, based on his or her average earnings as determined by the Commission.
38.6(3)Where the payment of the full benefit under subsection (2) would, when combined with
(a)
the earnings of the surviving spouse at the time of the award or review of benefits under this section, less
(b)
any income tax and premiums under the
Employment Insurance Act and contributions under the
Canada Pension Plan that are payable by the spouse on those earnings,
exceed ninety percent of the net family income, there shall be payable to the dependent surviving spouse only that portion of benefits which, when combined with the amount calculated pursuant to paragraphs (
a) and (
b), does not exceed ninety per cent of the net family income.
38.6(4)“Net family income”, for the purposes of subsection (3), means the aggregate of
(a)
the average net earnings of the worker, and
(b)
the earnings of the surviving spouse, not exceeding the maximum annual earnings, at the time of the award or review of benefits under this section, less any income tax and premiums under the
Employment Insurance Act and contributions under the
Canada Pension Plan payable by the spouse based on those earnings.
38.6(5)Benefits awarded to a spouse under this section shall be reviewed each year as of the anniversary date of the death of the worker and for the purposes of this review the average earnings of the worker as previously determined by the Commission shall be adjusted in accordance with the percentage increase in the New Brunswick Industrial Aggregate Earnings.
38.6(6)Where there is a surviving child of the worker and the dependent surviving spouse is unable or unwilling to care for the child, the dependent surviving spouse subsequently dies, or the worker leaves no dependent surviving spouse, benefits shall be payable to the guardian of the child as follows:
(a)
for a child up to but not including seven years of age, an amount equal to ten per cent of the New Brunswick Industrial Aggregate Earnings,
(b)
for a child of seven years to and including thirteen years of age, an amount equal to twelve and one-half per cent of the New Brunswick Industrial Aggregate Earnings,
(c)
for a child of fourteen years to and including seventeen years of age, an amount equal to fifteen per cent of the New Brunswick Industrial Aggregate Earnings, and
(d)
for a child of eighteen years to and including twenty-one years of age, where that child is attending school on a full-time basis, an amount equal to fifteen per cent of the New Brunswick Industrial Aggregate Earnings, and such other supplements as the Commission may award.
38.6(7)Repealed: 1998, c.4, s.10
38.6(8)Repealed: 1998, c.4, s.10
38.6(9)Adjustments in the benefits payable under subsection (6) due to a change in the child’s age shall become effective the month following the child’s anniversary month.
38.6(10)Where benefits are payable for a child of sixteen years of age or more under subsection (6), the Commission in its discretion may pay directly to the child, in whole or in part, the benefits payable under those subsections.
38.6(11)Benefits shall be payable for a surviving dependent invalid child without regard to age, at a rate reasonable and proportionate to the pecuniary loss to the dependent invalid child on a scale to be determined by the Commission, having in view the scale of payments laid down in subsection (6), but the yearly amount paid by the Commission shall not be less than fifteen per cent of the New Brunswick Industrial Aggregate Earnings, and the payments shall continue during the lifetime of the child or until he ceases to be an invalid or dependent.
38.6(12)Where a dependent other than a dependent surviving spouse or child under subsection (6) or (11) was dependent upon the worker at the time of his or her death, the Commission may pay benefits to the dependent
(a)
at a rate reasonable and proportionate to the pecuniary loss to the dependent, on a scale to be determined by the Commission, having in view the scales of payments laid down in this section, and
(b)
only so long as in the opinion of the Commission it might reasonably have been expected had the worker lived he would have continued to contribute to the support of the dependent.
1981, c.80, s.15; 1985, c.38, s.6; 1989, c.65, s.13; 1994, c.70, s.12; 1998, c.4, s.10; 2008, c.45, s.43