Acts and Regulations

W-13 - Workers’ Compensation Act

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Document at 12 December 2018
CHAPTER W-13
Workers’ Compensation Act
Definitions
1In this Part
“accident” includes a wilful and intentional act, not being the act of a worker, and also includes a chance event occasioned by a physical or natural cause, as well as a disablement caused by an occupational disease and any other disablement arising out of and in the course of employment, but does not include the disablement of mental stress or a disablement caused by mental stress, other than as an acute reaction to a traumatic event;(accident)
“Accident Fund” means the Accident Fund referred to and defined in the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act;(caisse des accidents)
“Appeals Tribunal” means the Workers’ Compensation Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act;(Tribunal d’appel)
“association” Repealed: 1980, c.56, s.1
“average earnings” when used in reference to the time of or before the injury, means the average earnings as calculated in accordance with section 37, 38.1, 38.11, 38.2, 38.51, 38.52, 38.53, 38.6 or 48, as the case may be;(salaire moyen)
“Board” Repealed: 1994, c.70, s.12
“Canada Pension Plan” means the Canada Pension Plan, chapter C-5 of the Revised Statutes of Canada, 1970, and any regulations under that Act, and includes the Québec Pension Plan;(Régime de pensions du Canada)
“Commission” means the Workplace Health, Safety and Compensation Commission established under the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act;(Commission)
“coal miners pneumonoconiosis” Repealed: 1989, c.65, s.1
“construction” includes reconstruction, repair, alteration, demolition, removal, renovating, painting and decorating;(construction)
“dependents” means the members of the family of a worker who were wholly or partly dependent upon his earnings at the time of his death, or who but for the incapacity due to the accident would have been so dependent;(personnes à charge)
“earning capacity” , when used in reference to the time of or before the injury, means the earning capacity calculated in accordance with section 37, 38 or 48, as the case may be;(capacité de gain)
“employer” includes(employeur)
(a) every person having in his service under contract of hire or apprenticeship, written or oral, express or implied, any worker engaged in any work in or about an industry,
(b) a municipal corporation, commission, committee, body or other local authority established or exercising any powers or authority with respect to the affairs or purposes, including school purposes, of a municipality,
(c) a person who authorizes or permits a learner to be in or about an industry for the purposes mentioned in the definition “learner”,
(c.1) a deemed employer, and
(d) the Crown in right of the Province of New Brunswick, and of Canada, and any permanent board, commission, or corporation established by the Crown in right of the Province of New Brunswick, or of Canada, in so far as they, or either of them, in their capacity as employers, submit to the operation of this Act;
Employment Insurance Act means the Employment Insurance Act, chapter 23 of the Statutes of Canada, 1996, and any regulations under that Act;(Loi sur l’assurance-emploi)
“industrial disease” Repealed: 1989, c.65, s.1
“industry” means the whole or any part of any industry, operation, undertaking or employment within the scope of this Part; and in the case of any industry, operation, undertaking or employment not as a whole within the scope of this Part means any department or part of such industry, operation, undertaking or employment as would, if carried on by itself, be within the scope of this Part;(industrie)
“invalid” means physically or mentally incapable of earning;(invalide)
“learner” means any person who, although not under contract of service or apprenticeship, becomes subject to the hazards of an industry within the scope of this Act, for the purpose of undergoing training or probationary work supplied or stipulated by the employer as a preliminary to employment and includes a student attending an educational institution in the Province while participating in an approved work experience program at the place of business of an employer to whom this Act applies;(stagiaire)
“manufacturing” Repealed: 2001, c.36, s.1
“medical aid” includes medical, surgical and dental aid, hospital and skilled nursing services, services of a registered chiropractor within his legal jurisdiction, artificial members and apparatus including the repair and replacement thereof, transportation, clothing allowances with respect to damage caused to clothing as a result of the use of an artificial apparatus or as a result of any accident, and such other treatment, services or attendance as are necessary as a result of any injury;(aide médicale)
“medical practitioner” means a person duly registered under the laws of the Province as authorized to practice medicine in the Province, and includes a medical officer of Her Majesty’s armed forces serving in the Province;(médecin)
“member of a municipal volunteer fire brigade” means a person whose membership has been approved by the chief of the fire department of a municipal corporation, commission, committee, body or other local authority;(membre d’un corps municipal de pompiers volontaires)
“member of the family” , for the purpose of paying compensation or benefits to a dependent, includes spouse, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother and half-sister, and a person who stood in loco parentis whether related to the worker by consanguinity or not so related;(membre de la famille)
“mining” includes mine rescue work;(exploitation minière)
“motor vehicle” means(véhicule à moteur)
(a) a motor vehicle
(i) required to be registered under the Motor Vehicle Act,
(ii) authorized pursuant to section 46, 47 or 50 of the Motor Vehicle Act to be operated on the highways of the Province without being registered under that Act, or
(iii) used as an ambulance or by a fire department for protection against fires, whether or not registered under the Motor Vehicle Act,
whether or not it is being operated on a highway, or
(b) any other motor vehicle, including a farm tractor, while being operated on a highway,
and for the purposes of this definition “highway” means a highway as defined in the Motor Vehicle Act;
“municipality” means a local government as defined in subsection 1(1) of the Local Governance Act; (municipalité)
“navigation” Repealed: 1989, c.65, s.1
“occupational disease” means any disease, which by the regulations, is declared to be an occupational disease and includes any other disease peculiar to or characteristic of a particular industrial process, trade or occupation;(maladie professionelle)
Old Age Security Act means the Old Age Security Act, chapter O-6 of the Revised Statutes of Canada, 1970 and any regulations under that Act;(Loi sur la sécurité de la vieillesse)
“outworker” means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented, finished, repaired or adapted for use or sale, in his own home or in other premises not under the control or management of the person who gave out the articles or materials;(ouvrier indépendant)
“panel” Repealed: 1980, c.56, s.1
“Pension Fund” means the fund provided for the payment of pensions in accordance with sections 38.22, 38.54 and 38.7;(Caisse de retraite)
“permanent total disability” without restricting the generality of the term, includes the loss of both eyes, both hands, both feet, or one hand and one foot;(invalidité totale permanente)
“person” includes the legal representative of that person, or the successors of a corporation;(personne)
“quarrying” includes excavation for any purpose, drilling, and the removal or transportation of any rock, shale, gravel, sand, earth or other material;(exploitation de carrières)
“Québec Pension Plan” means the Québec Pension Plan established pursuant to An Act Respecting the Québec Pension Plan, chapter R-9 of the Revised Statutes of Québec, 1977;(Régime des rentes du Québec)
“regulation” means regulation made by the Lieutenant-Governor in Council under the authority of this Part;(règlements)
“school” means a school within the meaning of the Education Act and includes a university, college and all other types of occupational, trade, technical or professional training establishments;(école)
“silicosis” Repealed: 1989, c.65, s.1
“spouse” means a person who, at the time of the death of the worker,(conjoint)
(a) was married to and was cohabiting with the worker,
(b) was not married to but was cohabiting with the worker in a conjugal relationship and had, immediately before the death of the worker, been cohabiting
(i) for not less than three years, or
(ii) for not less than one year if a child of whom the person and the worker are the natural parents had been or is to be born;
“stevedoring” means the loading or unloading of vessels and railway cars and the handling of goods, articles and commodities on or about any dock, wharf or quay;(arrimage)
“teaming” Repealed: 2001, c.36, s.1
“Unemployment Insurance Act” Repealed: 1998, c.4, s.1
“worker” means 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(travailleur)
(a) a learner,
(a.1) an emergency services worker within the meaning of any agreement made under the Emergency Measures Act between the Government of Canada and the Government of New Brunswick in which provision is made for compensation with respect to the injury or death of such workers,
(b) a member of a municipal volunteer fire brigade, and
(c) a person employed in a management capacity by the employer, including an executive officer of a corporation, where that executive officer is carried on the pay-roll.
R.S., c.255, s.1; 1955, c.81, s.1; 1957, c.68, s.1; 1961-62, c.72, s.1; 1975, c.92, s.1; 1979, c.73, s.1; 1980, c.C-2.1, s.162; 1980, c.56, s.1; 1981, c.80, s.2; 1984, c.34, s.1; 1985, c.38, s.1; 1989, c.65, s.1; 1992, c.34, s.1; 1994, c.70, s.12; 1997, c.42, s.11; 1998, c.4, s.1; 2001, c.36, s.1; 2005, c.7, s.89; 2008, c.45, s.43; 2014, c.49, s.38; 2017, c.20, s.177
Transitional
1.1Unless the context requires otherwise, a reference in any other Act of the Legislature, in regulations under any other Act of the Legislature or in any other document or instrument to the Workers’ Compensation Board, or to the members of the Workers’ Compensation Board, shall, as it relates to the administration of the within Act, be read as a reference to the Workplace Health, Safety and Compensation Commission or the board of directors of the Workplace Health, Safety and Compensation Commission.
1994, c.70, s.12
SCOPE
Application of Part I
2(1)Subject to subsections (3) and to section 6, this Part applies to all employers and workers in or about any industry in the Province.
2(2)Repealed: 1980, c.56, s.2
2(3)Subject to sections 4 and 6, this Part does not apply to the following:
(a) persons whose employment is of a casual nature and otherwise than for the purposes of the industry;
(a.1) persons who play sports as their main source of income;
(b) outworkers;
(b.1) Repealed: 1981, c.80, s.4
(c) members of the family of the employer residing with the employer who are under sixteen years of age; and
(d) persons employed as domestic servants.
R.S., c.255, s.2; 1955, c.81, s.3, 4; 1959, c.79, s.1, 2; 1961-62, c.72, s.2; 1978, c.61, s.1; 1980, c.56, s.2; 1981, c.80, s.3, 4; 1989, c.65, s.2
Deemed employer
2.1If an employer temporarily lends or hires out the services of a worker to another employer, the first employer shall be deemed to be the employer of the worker while he or she is working for the other employer.
2001, c.36, s.2
Repealed
3Repealed: 1980, c.56, s.3
R.S., c.255, s.3; 1980, c.56, s.3
Admission of industry or worker to scope of Part I
4(1)An industry or worker not within the scope of this Part may, on the application of the employer, be admitted by the Commission as being within the scope of this Part on such terms and conditions, and for such period, and from time to time, as the Commission may prescribe; and from such admission, and during the period of such admission, such industry or worker shall be deemed to be within the scope of this Part.
4(2)An employer in an industry within the scope of this Part may be admitted, on such terms and conditions and for such period and from time to time as the Commission may prescribe, as being entitled for himself or his dependents, as the case may be, to the same compensation as if that employer were a worker within the scope of this Part.
4(3)The admission may be made in such manner and form as the Commission deems adequate and proper.
R.S., c.255, s.4; 1981, c.80, s.3, 5; 1994, c.70, s.12
Person assisting peace officer
5(1)For the purposes of this Act, every person assisting a peace officer in arresting any person or in preserving the peace shall be deemed to be an employee of the Crown in right of New Brunswick, and his average earnings shall be deemed to be the same in amount as his average earnings at his regular employment and shall be paid in accordance with section 38 or, where the injury or recurrence of an injury arises after the coming into force of section 38.2, in accordance with section 38.2, or, where the injury or recurrence of an injury arises after the coming into force of section 38.11, in accordance with section 38.11.
5(2)Where it is impossible, or would be inequitable, to determine the average earnings of a person referred to in subsection (1) in accordance with section 38.1 the Commission may award compensation based on the average earnings, as determined by the Commission, that are earned by a peace officer, not exceeding the maximum annual earnings in effect under subsection 38.1(3).
1968, c.91, s.1; 1981, c.80, s.6; 1994, c.70, s.12; 1998, c.4, s.2
Exclusion of industry
6The Lieutenant-Governor in Council may by regulation exclude from the scope of this Part any industry or industries in which not more than a stated number of workers fixed by such regulation are usually employed.
R.S., c.255, s.5; 1981, c.80, s.7
COMPENSATION
When compensation payable
7(0.1)The following definitions apply in this section.
“aggravation” , with respect to an injury by accident, means a permanent clinical effect of the injury on a pre-existing disease or condition.(aggravation)
“exacerbation” , with respect to an injury by accident, means a temporary clinical effect of the injury on a pre-existing disease or condition.(exacerbation)
7(1)When personal injury or death is caused to a worker by accident arising out of and in the course of his employment in an industry within the scope of this Part, compensation shall be paid to that worker or his dependents, as the case may be, as hereinafter provided, unless the accident was, in the opinion of the Commission, intentionally caused by him, or was wholly or principally due to intoxication or serious or wilful misconduct on the part of the worker and did not result in the death or serious and permanent disability of the worker.
7(2)When the accident arose out of the employment, in the absence of any evidence to the contrary, it shall be presumed that it occurred in the course of the employment, and when the accident occurred in the course of employment, in the absence of any evidence to the contrary, it shall be presumed that it arose out of the employment.
7(2.1)Where there is any evidence that an accident did not arise out of or in the course of the employment, the Commission shall weigh all the evidence before it and determine, on a preponderance of evidence, whether the accident arose out of or in the course of the employment, as the case may be.
7(3)When a worker is engaged in work part of which is to be performed in this Province and part in another province or country, the work shall be considered as done and performed in this Province, and the worker or his dependents are entitled to be paid compensation under this Part and the employer shall include that worker in his payroll submitted to the Commission, and notify the Commission that one or more worker included in such payroll may be so engaged, but if the employer fails to include such worker in his payroll and notify the Commission accordingly, he shall be individually liable for the payment of the compensation to the injured worker or his dependents, as the case may be, unless it can be shown that the worker is entitled to compensation under a compensation Act of the other province or country.
7(4)Repealed: 1981, c.80, s.8
7(5)When a personal injury by accident arising out of and in the course of employment exacerbates or aggravates a pre-existing disease or condition, compensation that the Commission determines is reasonably attributable to the injury caused by the accident shall be payable, and not for the natural progression of the pre-existing disease or condition.
7(6)The compensation allowed under subsection (5) shall be borne by the fund referred to in section 66 for that portion of the compensation, as determined by the Commission, that relates to the aggravation of the pre-existing disease or condition.
R.S., c.255, s.6; 1961-62, c.72, s.3, 4; 1980, c.56, s.4; 1981, c.80, s.3, 8; 1989, c.65, s.3; 1992, c.34, s.2; 1994, c.70, s.12; 2018, c.18, s.2
Presumption respecting post-traumatic stress disorder
7.1(1)The following definitions apply in this section.
“emergency response worker” means a firefighter, a paramedic or a police officer.(intervenant d’urgence)
“firefighter” means a firefighter as defined in the Firefighters’ Compensation Act. (pompier)
“paramedic” means a person whose name is entered in the register kept pursuant to paragraph 10(1)(a) of An Act Respecting the Paramedic Association of New Brunswick.(travailleur paramédical)
“police officer” means a police officer as defined in the Police Act.(agent de police)
“post-traumatic stress disorder” means post-traumatic stress disorder as that condition is described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.(état de stress post-traumatique)
“psychiatrist” means a psychiatrist as defined in the Mental Health Act.(psychiatre)
“psychologist” means an individual who is a member of the College of Psychologists of New Brunswick and holds a licence issued under The College of Psychologists Act or an individual who is practising as a psychologist outside New Brunswick who is recognized as a psychologist by the licensing body of the jurisdiction in which that person practises. (psychologue)
7.1(2)Subject to this section, if an emergency response worker is diagnosed with post-traumatic stress disorder by a psychiatrist or psychologist, it shall be presumed, unless the contrary is shown, that the post-traumatic stress disorder arose out of and in the course of the worker’s employment in response to a traumatic event or a series of traumatic events to which the worker was exposed in carrying out the worker’s duties as an emergency response worker.
7.1(3)A worker is entitled to be paid compensation under this Act if
(a) the worker
(i) is an emergency response worker or was an emergency response worker on or after the day this section comes into force, and
(ii) is or was diagnosed with post-traumatic stress disorder by a psychiatrist or psychologist; and
(b) for the worker who
(i) is an emergency response worker at the time the worker claims compensation under this Act, the diagnosis of post-traumatic stress disorder was made by a psychiatrist or psychologist on or after the day this section comes into force, or
(ii) ceases to be an emergency response worker on or after a day this section comes into force, the diagnosis of post-traumatic stress disorder was made by a psychiatrist or psychologist no later than 24 months after the day on which the worker ceases to be an emergency response worker.
7.1(4)An emergency response worker who is entitled to benefits under this Act for post-traumatic stress disorder is entitled to receive treatment by a psychiatrist or psychologist who is familiar with the research concerning treatment for post-traumatic stress disorder.
2016, c.24, s.1
Inter-provincial worker
8(1)Repealed: 2000, c.47, s.1
8(2)Repealed: 2001, c.36, s.3
8(3)With a view to avoiding duplication of assessments to which an employer may be liable on the earnings of workers who are doing or performing work part of the time in New Brunswick and part of the time in another province or territory of Canada, the Commission may make an agreement with the workers’ compensation authority of that province or territory for such adjustment of assessment as is equitable and may reimburse such other authority for any payment of compensation, rehabilitation or medical aid made by it under the agreement, and may, in order to give effect to the agreement, relieve an employer from assessment or reduce the amount thereof.
R.S., c.255, s.7; 1961-62, c.72, s.5; 1981, c.80, s.3, 9; 1994, c.70, s.12; 1998, c.4, s.3; 2000, c.47, s.1; 2001, c.36, s.3
Election to receive compensation for accident in other jurisdiction
8.1(1)Where a worker or his dependents are entitled to compensation or some other remedy in respect of an accident both in another jurisdiction and in New Brunswick, the worker or dependents shall elect
(a) to claim compensation or the other remedy under the law of the other jurisdiction, or
(b) to claim compensation under this Act,
and shall give notice of that election to the Commission under subsection (2), but if there is in existence an agreement under subsection 8(3), the right of election is subject to the terms of the agreement.
8.1(2)Notice of election shall be given to the Commission
(a) by the worker within three months after the happening of the accident, or
(b) if the accident results in death, by a dependent within three months after the death,
and if notice of election is not given in accordance with this section, the worker or dependent is deemed to have elected not to claim compensation under this Act.
8.1(3)The Commission may, on application either before or after the expiration of the three month period referred to in subsection (2), extend that period if, in the opinion of the Commission, the claim is a just one and ought to be allowed,
8.1(4)If a worker or dependent elects under subsection (2) to claim compensation under this Act and at any time claims compensation or some other remedy under the law of another jurisdiction in respect of the same accident, the worker or dependent is deemed to have forfeited all rights to compensation under this Act in respect of that accident, and any money paid to the worker or dependent or on his or her behalf by the Commission in respect of it constitutes a debt due from him or her to the Commission.
8.1(5)Subsection (4) does not affect the right to compensation of a worker or dependent where an action is maintained in the worker’s or dependent’s name by the Commission under subsection 10(10).
8.1(6)Notwithstanding subsection (4), if a worker or dependent, before claiming compensation under this Act, and in ignorance of his or her rights or the extent of his or her rights under this Act, claims compensation under the law of the other jurisdiction where the accident happened and is found not to be entitled to compensation, the worker or dependent is deemed not to have forfeited his or her rights under this Act by reason only of making the claim.
2001, c.36, s.4
Effect of cause of action on compensation
9Where an accident occurs to a worker in the course of his employment in such circumstances as to entitle him or his dependents to any claim or right of action against his employer under or by virtue of any statute of Canada, or of the United Kingdom of Great Britain and Northern Ireland, the worker or dependents are entitled to compensation under this Part to the extent to which the compensation under this Part would exceed in amount or value the amount or value of such claim or right of action; but if such worker or his dependents execute and give a full and effectual release of the employer from any claim or right of action, the Commission may pay to that worker or dependents the full amount of compensation provided by this Part.
R.S., c.255, s.8; 1981, c.80, s.3; 1994, c.70, s.12
Election of worker
10(1)Subject to section 11, where an accident occurs to a worker in the course of his employment in such circumstances as to entitle him or his dependents to an action against some person other than his employer, the worker or his dependents, if entitled to compensation under this Part, may either claim compensation or bring the action.
10(2)Where an accident occurs to a worker in the course of his employment in such circumstances as to entitle him or his dependents to an action against some person other than his employer and the worker or his dependents collect any amount from the person against whom the action may be brought before the action is brought, they shall be deemed for the purposes of this section to have brought an action.
10(3)The election referred to in subsection (1) shall be made and notice of it given to the Commission within three months of the accident or such longer period as the Commission may allow.
10(4)Where the Commission is satisfied that due to his physical or mental disability, a worker is unable to make an election under subsection (1), and undue hardship will result, it may pay the compensation provided under this Part until he is able to make that election.
10(5)Where the Commission pays compensation under subsection (4) and when he is able to make an election under subsection (1), the worker elects not to claim compensation, the Commission shall pay no further compensation and the compensation paid prior to the election shall be a first charge against any sum recovered.
10(6)A parent, guardian or a person who has had placed under his care a deceased worker’s child who is a minor may file an application for compensation for that child and that application is a valid election on behalf of that child.
10(7)Where a worker
(a) is mentally incapable of making an election under subsection (1) and no committee has been appointed, or
(b) is unconscious as a result of his injury,
his or her dependent spouse may make that election, but if no election is made within three months after the day of the injury, the Commission shall make the election on behalf of the injured worker.
10(8)Where a worker or his dependents bring an action and less is recovered and collected under the judgment in the action or by settlement than the amount of the compensation to which the worker or his dependents would be entitled under this Part, the worker or his dependents shall be entitled to compensation under this Part to the extent of the amount of that difference.
10(9)Subsection (8) applies only to a settlement that has been approved by the Commission in writing before it is made.
10(10)Where a worker or his dependents, or any of them have claimed compensation under this Part, the Commission shall be subrogated to all rights of that worker or dependents in respect of the injuries to the worker as against the person against whom the action lies, and may maintain an action in the name of the worker or his dependents or in the name of the Commission; and where more is recovered and collected than the amount of the compensation to which the worker or his dependents would be entitled under this Part, the amount of the excess, less costs and administration charges, shall be paid to the worker or his dependents, and that amount shall be deducted from the amount of any future compensation or other benefits to which he or they may become entitled in respect of the accident.
10(11)The Commission has the exclusive right to determine whether it shall maintain an action, abandon it or compromise the right of action, and the decision of the Commission is final.
10(12)Where an action is brought by a worker, his dependents or by the Commission, and one or more of the persons found to be at fault or negligent is the employer of the worker, or any other employer within the scope of this Part, or any worker of that employer in the course of his employment at the time of the happening of the accident, and subsection 11(1) or section 12 applies, no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of that employer or worker, but the portion of the loss or damage caused by that fault or negligence shall be determined although that employer or worker is not a party to the action.
10(13)Where an action is brought by a worker, his dependents or the Commission, an award for damages shall include
(a) medical aid provided under this Part, and
(b) wages and salary paid by an employer during the period of disability for which regard has been had by the Commission, or would have been had if the worker had elected to claim compensation, in fixing the amount of a periodical payment of compensation or in determining to whom such payment is to be made.
10(14)Repealed: 2001, c.36, s.5
R.S., c.255, s.9; 1961-62, c.72, s.6; 1973, c.65, s.1; 1978, c.61, s.2; 1981, c.80, s.3; 1986, c.4, s.57; 1994, c.70, s.12; 2001, c.36, s.5; 2008, c.45, s.43
Right of action against employer or employee
11(1)In any case within section 10, no employer and no worker of an employer within the scope of this Part or dependent of that worker shall have a right of action against any employer within the scope of this Part or against any worker of that employer, where the workers of both employers were in the course of their employment at the time of the accident, but in any case where it appears to the satisfaction of the Commission that a worker of an employer in any class was injured or killed owing to the negligence of an employer or the worker of an employer in another class, the Commission may direct that the compensation awarded in that case shall be charged against the class to which the last mentioned employer belongs.
11(1.1)Subsection (1) does not apply where the worker is injured or killed
(a) while being transported in the course of the worker’s employment by any mode of transportation in respect of which public liability insurance is required to be carried, or
(b) as a result of an accident involving the use of a motor vehicle by the worker or any other person.
11(2)Any party to an action may apply to the Commission for adjudication and determination of the plaintiff’s right to compensation under this Part, or as to whether the action is one which the right to bring is taken away by this Part and that adjudication and determination is final.
R.S., c.255, s.10; 1961-62, c.72, s.7; 1973, c.65, s.2; 1981, c.80, s.3, 10; 1989, c.65, s.4; 1994, c.70, s.12
Part I in lieu of cause of action
12The provisions of this Part are in lieu of all claims and rights of action, statutory or otherwise, to which a worker or his dependents are or may be entitled against the employer of the worker for or by reason of an accident in respect of which compensation is payable under this Part.
R.S., c.255, s.11; 1981, c.80, s.3
Voiding of waiver of benefits
13A worker is not competent to agree with his employer to waive or forego any of the benefits to which he or his dependents are or may become entitled under this Part, and every agreement to that end is void.
R.S., c.255, s.12; 1981, c.80, s.3
Offence respecting deduction from employee’s wages
14It is not lawful for an employer, either directly or indirectly, to deduct from the wages of a worker any part of a sum that the employer is or may become liable to pay into the Accident Fund or otherwise under this Part, or to require or to permit any of his workers to contribute in any manner towards indemnifying the employer against any liability that he has incurred or may incur under this Part.
R.S., c.255, s.13; 1981, c.80, s.3
Non-assignability and freedom from process
15Unless with the approval of the Commission, no sum payable as compensation or by way of commutation of any periodical payment in respect of it shall be capable of being assigned, charged or attached, nor shall it pass by operation of law except to a personal representative.
R.S., c.255, s.14; 1994, c.70, s.12
Limitation of time for application
16(1)An application for compensation under this Part shall be made
(a) within one year after the date of the accident, or
(b) in the case of death, within six months after the date of the accident.
16(2)The Commission may extend the time period referred to in subsection (1) if it considers that the delay is justified.
R.S., c.255, s.15; 1961-62, c.72, s.8; 1994, c.70, s.12; 2013, c.14, s.1
WORKERS’ COMPENSATION BOARD
Repealed: 1994, c.70, s.12
Repealed
17Repealed: 1994, c.70, s.12
R.S., c.255, s.16; 1981, c.80, s.11; 1994, c.70, s.12
Repealed
18Repealed: 1994, c.70, s.12
R.S., c.255, s.17; 1987, c.64, s.1; 1992, c.34, s.3; 1994, c.70, s.12
Repealed
19Repealed: 1994, c.70, s.12
R.S., c.255, s.18; 1987, c.64, s.1; 1994, c.70, s.12
Repealed
20Repealed: 1994, c.70, s.12
R.S., c.255, s.19; 1987, c.64, s.1; 1992, c.2, s.61; 1992, c.34, s.4; 1994, c.70, s.12
Repealed
20.1Repealed: 1994, c.70, s.12
1987, c.64, s.1; 1992, c.34, s.5; 1994, c.70, s.12
Repealed
20.2Repealed: 1994, c.70, s.12
1987, c.64, s.1; 1989, c.65, s.4.1; 1992, c.34, s.6; 1994, c.70, s.12
Repealed
21Repealed: 1994, c.70, s.12
R.S., c.255, s.20; 1987, c.64, s.2; 1992, c.34, s.7; 1994, c.70, s.12
Repealed
22Repealed: 1994, c.70, s.12
R.S., c.255, s.21; 1987, c.64, s.3; 1994, c.70, s.12
Repealed
23Repealed: 1994, c.70, s.12
R.S., c.255, s.22; 1987, c.64, s.4; 1994, c.70, s.12
Repealed
24Repealed: 1994, c.70, s.12
1965, c.48, s.1; 1994, c.70, s.12
Repealed
25Repealed: 1994, c.70, s.12
R.S., c.255, s.23; 1981, c.80, s.3; 1987, c.64, s.5; 1994, c.70, s.12
Repealed
25.1Repealed: 1994, c.70, s.12
1987, c.64, s.1; 1994, c.70, s.12
Repealed
25.11Repealed: 1994, c.70, s.12
1989, c.65, s.5; 1992, c.34, s.8; 1994, c.70, s.12
Repealed
25.2Repealed: 1994, c.70, s.12
1987, c.64, s.1; 1992, c.2, s.61; 1994, c.70, s.12
Repealed
26Repealed: 1994, c.70, s.12
R.S., c.255, s.24; 1994, c.70, s.12
Repealed
26.1Repealed: 1994, c.70, s.12
1989, c.65, s.6; 1994, c.70, s.12
Repealed
27Repealed: 1994, c.70, s.12
R.S., c.255, s.25; 1994, c.70, s.12
Repealed
28(1)Repealed: 1994, c.70, s.12
Repealed
28(1.1)Repealed: 1994, c.70, s.12
Submission of Crown to Act
28(2)If the Crown in right of the Province in its capacity as an employer submits to the operation of this Act, the Minister of Finance may
(a) pay such portion of the administration expenses as is authorized by the Lieutenant-Governor in Council, and
(b) make an advance to the Commission in respect of compensation that may be paid by the Commission.
R.S., c.255, s.26; 1961-62, c.72, s.9; 1968, c.91, s.2; 1987, c.64, s.7; 1989, c.65, s.6.1; 1992, c.34, s.9; 1994, c.70, s.12
Repealed
29Repealed: 1994, c.70, s.12
R.S., c.255, s.27; 1957, c.68, s.2, 3; 1981, c.80, s.12; 1986, c.86, s.60; 1994, c.70, s.12
Repealed
30Repealed: 1994, c.70, s.12
R.S., c.255, s.28; 1965, c.48, s.2; 1980, c.56, s.5; 1983, c.30, s.30; 1986, c.8, s.133; 1987, c.64, s.8; 1992, c.2, s.61; 1994, c.70, s.12
Repealed
30.1Repealed: 1994, c.70, s.12
1987, c.64, s.9; 1992, c.2, s.61; 1994, c.70, s.12
JURISDICTION OF COMMISSION
1994, c.70, s.12
Jurisdiction of Commission
31(1)The Commission has jurisdiction to inquire into, hear and determine all matters and questions of fact and law necessary to be determined in connection with compensation payments under this Part and the administration thereof, and the collection and management of the funds therefor; but no decision or ruling of the Commission is binding upon it as a precedent for any other decision or ruling, and each case shall be decided upon its own merits.
31(2)Notwithstanding anything contained in this Act the Commission shall have jurisdiction to inquire into, hear and determine whether any person is an employer, and whether any operation, undertaking or employment is an industry, within the scope of this Part.
R.S., c.255, s.29; 1994, c.70, s.12
Witnesses and production of evidence
32The Commission has the same powers as The Court of Queen’s Bench of New Brunswick for compelling the attendance of witnesses and of examining them under oath, and compelling the production of books, papers, documents and things.
R.S., c.255, s.30; 1979, c.41, s.131; 1994, c.70, s.12
Delegation of powers of inquiry
33The Commission may act upon the report of any of its officers, and any inquiry that it is deemed necessary to make may be made by any one of the members or by an officer of the Commission or any other person appointed to make the inquiry, and the Commission may act upon his report as to the result of the inquiry, and any person so appointed to make the inquiry shall for the purposes of the inquiry have all the powers conferred upon the Commission by section 32.
R.S., c.255, s.31; 1994, c.70, s.12
Review of Commission proceedings
34(1)Except as provided in sections 42.1 and 42.2, the Commission has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Part and as to any matter or thing in respect to which any power, authority or discretion is conferred upon the Commission, and the action or decision of the Commission thereon shall be final and conclusive and shall not be open to question or review in any court, and no proceedings by or before the Commission shall be restrained by injunction or other process or proceeding in any court.
Review of Commission proceedings
34(2)Without thereby limiting the generality of the provisions of subsection (1), such exclusive jurisdiction extends to determining:
(a) the existence of, and degree of, disability by reason of any injury;
(b) the permanence of disability by reason of any injury;
(c) the amount of average earnings, average net earnings, loss of earnings, net family income and an amount for a permanent physical impairment arising out of an injury;
(d) the degree of diminution of earning capacity by reason of any injury;
(e) the existence of the relationship of “member of the family”;
(f) the existence of dependency;
(g) the character, for the purposes of this Act, of any industry, and the class to which such industry should be assigned;
(h) whether the employment of a person in an industry within the scope of this Part is that of a worker, a sub-contractor or an independent contractor;
(i) whether personal injury or death has been caused by accident;
(j) whether an accident arose out of and in the course of an employment within the scope of this Act.
Review of Commission proceedings
34(2.1)Without limiting the generality of subsection (1), the Commission has exclusive jurisdiction to establish policies consistent with this Act, the Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act, the Firefighters’ Compensation Act and the Occupational Health and Safety Act for the purpose of determining entitlement to benefits under those Acts.
Repealed
34(3)Repealed: 1997, c.52, s.3
Legal precedent
34(4)The decisions of the Commission shall be upon the real merits of the case, and it is not bound to follow strict legal precedent.
Repealed
34(5)Repealed: 1975, c.92, s.2
Repealed
34(6)Repealed: 1975, c.92, s.2
Repealed
34(7)Repealed: 1975, c.92, s.2
R.S., c.255, s.32; 1975, c.92, s.2; 1981, c.80, s.3; 1982, c.67, s.1; 1986, c.4, s.57; 1989, c.65, s.7; 1994, c.70, s.12; 1997, c.52, s.3; 2018, c.18, s.2
Certificate of order, ruling or decision of Commission
35The Commission may where it is deemed necessary, and shall on the application of an employer, or worker interested in an order, ruling or decision of the Commission, issue a certificate under the seal of the Commission embodying the substance of such order, ruling or decision.
R.S., c.255, s.33; 1981, c.80, s.3; 1994, c.70, s.12
Certificate respecting copy or extract
35.1(1)A certificate purporting to be signed by an officer of the Commission setting out information from any books, records, documents or files of the Commission in the form of an extract or description shall, in the absence of evidence to the contrary, be admitted in evidence as proof of the facts stated in it without proof of the appointment, authority or signature of the person signing it.
35.1(2)A certificate referred to in subsection (1) shall not be received in evidence unless the party intending to produce it has given the person against whom it is to be produced reasonable notice of the intention, together with a copy of the certificate.
35.1(3)A person against whom a certificate referred to in subsection (1) is produced may, with leave of the court, require the attendance of the person who signed the certificate for the purposes of cross-examination.
2001, c.36, s.6
Repealed
36Repealed: 1994, c.70, s.12
R.S., c.255, s.34; 1979, c.41, s.131; 1980, c.32, s.44; 1982, c.67, s.2; 1984, c.34, s.2; 1987, c.64, s.10; 1991, c.27, s.43; 1992, c.34, s.10; 1994, c.70, s.12
SCALE OF COMPENSATION
Determination of scale of compensation
37For the purposes of sections 38 and 48, average earnings and earning capacity shall be calculated on the daily, weekly, monthly, or regular remuneration that the worker was receiving at the time of the injury or receiving previously, as may appear to the Commission best to represent the actual loss of earnings suffered by the worker by reason of the injury unless, notwithstanding the Age of Majority Act, the worker is at the date of the accident under twenty-one years of age, and it is established to the satisfaction of the Commission that under normal conditions the wages will probably increase, in which case this fact shall be considered in arriving at his average earnings or earning capacity, which is not in any case to exceed the New Brunswick Industrial Aggregate Earnings per year.
1961-62, c.72, s.10; 1965, c.48, s.3; 1968, c.91, s.3; 1971, c.77, s.1; 1973, c.65, s.3; 1974, c.49 (Supp.), s.1; 1975, c.92, s.3; 1978, c.61, s.3; 1980, c.56, s.6; 1981, c.80, s.3, 13; 1989, c.65, s.8; 1994, c.70, s.12
Definition for purposes of sections 37, 38 and 48
37.01In sections 37, 38 and 48
“New Brunswick Industrial Aggregate Earnings” means the amount set by the Commission as of the first day of January of each year in accordance with the definition “New Brunswick Industrial Aggregate Earnings” in subsection 38.1(1).
1989, c.65, s.9; 1994, c.70, s.12
Repealed
37.1Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.2Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.3Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.4Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.5Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.6Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.7Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.8Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.9Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.91Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.92Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Repealed
37.93Repealed: 1980, c.56, s.7
1975, c.92, s.4; 1980, c.56, s.7
Injury before coming into force of section 38.2, effect of increase in scale after June 1, 1960
38(1)Where a worker is injured before the coming into force of section 38.2 the compensation payable under this Part is as follows:
(a) in the case of temporary partial disability continuing for one day after the accident and diminishing the earning capacity of the worker by more than ten per cent, a payment or payments at a rate equal to seventy-five per cent of such diminution of earning capacity calculated on a basis not exceeding the New Brunswick Industrial Aggregate Earnings per year;
(b) in the case of temporary total disability continuing for one day after the accident, a payment or payments equal to seventy-five per cent of the average earnings of the worker, but not more than seventy-five per cent of the New Brunswick Industrial Aggregate Earnings per year, and not less than ninety dollars per week, except where the average earnings of the worker is less than ninety dollars per week, in which case the payments shall equal the amount of such earnings, said payments to be continued for the duration of the disability;
(c) in the case of permanent total disability payments during the life of the worker or the duration of the disability equal to the average earnings of the worker but in no case to exceed seventy-five per cent of the New Brunswick Industrial Aggregate Earnings per year;
(d) in the case of permanent partial disability, payments during the life of the worker or the duration of the disability on a scale to be established by the Commission and proportioned upon the diminution of earning capacity and the degree of disfigurement but in no case to exceed seventy-five per cent of the New Brunswick Industrial Aggregate Earnings per year;
(e) Repealed: 1989, c.65, s.10
(f) where deemed just, the impairment of earning capacity may be estimated from the nature of the injury, having always in view the worker’s fitness to continue the employment in which he was injured, or to adapt himself to some other suitable occupation,
(g) Repealed: 1981, c.80, s.14
38(2)Repealed: 1981, c.80, s.14
38(3)Repealed: 1981, c.80, s.14
38(4)Repealed: 1975, c.92, s.5
38(5)Repealed: 1981, c.80, s.14
38(6)Repealed: 1981, c.80, s.14
38(7)Where the amount of compensation payable to a widow or invalid widower in receipt of compensation on May 31, 1960, was increased on June 1, 1960, such increase shall be paid out of the Accident Fund and thereupon the Accident Fund shall be reimbursed monthly out of the Consolidated Fund.
38(8)Repealed: 1981, c.80, s.14
38(9)Repealed: 1981, c.80, s.14
38(10)Repealed: 1981, c.80, s.14
38(11)Repealed: 1981, c.80, s.14
38(12)Repealed: 1981, c.80, s.14
R.S., c.255, s.35; 1955, c.81, s.5, 6; 1957, c.68, s.5, 6; 1958, c.59, s.1, 2, 3, 4, 7; 1959, c.79, s.3; 1960, c.79, s.1; 1961-62, c.72, s.11, 12, 13, 14; 1965, c.48, s.4, 5; 1968, c.91, s.4, 5; 1969, c.76, s.1; 1971, c.77, s.2, 3; 1973, c.65, s.4, 5, 6, 7, 8, 9; 1974, c.49 (Supp.), s.2, 3; 1975, c.92, s.5; 1978, c.61, s.4; 1980, c.56, s.8; 1981, c.80, s.3, 14; 1989, c.65, s.10; 1994, c.70, s.12
Definitions for various sections
38.1(1)In this section and in sections 38.11, 38.2, 38.5, 38.51, 38.52, 38.53, 38.6 and 38.8
“average earnings” means the daily, weekly, monthly, or regular remuneration that the worker was receiving at the time of the injury or recurrence of the injury, or receiving previously, or at the time of the loss of earnings, or at the time of death, as may appear to the Commission best to represent the earnings of the worker, unless the worker was at the date of the accident under twenty-one years of age and it is established to the satisfaction of the Commission that under normal conditions the earnings would probably increase, in which case this fact should be considered in determining the worker’s average earnings and in no case shall average earnings exceed the maximum annual earnings;(salaire moyen)
“average net earnings” means the average earnings of the worker less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings;(salaire moyen net)
“loss of earnings” means(perte de gains)
(a) average net earnings, less
(b) the earnings the worker is estimated to be capable of earning at a suitable occupation after sustaining the injury, less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings;
“maximum annual earnings” means the amount set pursuant to subsection (3);(salaire annuel maximum)
“New Brunswick Industrial Aggregate Earnings” means the amount set by the Commission as of the first day of January of each year, which shall be equal to $27,323 for the year 1993 and which shall thereafter be increased by the percentage increase in the Consumer Price Index for Canada for all items for the twelve month period ending the thirtieth day of June in each year as determined by the Commission in August of each year on the basis of monthly reports published in that respect by Statistics Canada for that period;(salaire pour l’ensemble des activités économiques au Nouveau-Brunswick)
“pre-accident earnings” means the daily, weekly, monthly or regular remuneration that the worker was receiving at the time of the injury or recurrence of the injury, as may appear to the Commission best to represent the earnings of the worker;(gains avant l’accident)
“pre-accident net earnings” means the pre-accident earnings of the worker less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings.(gains nets avant l’accident)
38.1(2)For the purposes of subsection (1), where the employer was accustomed to paying the worker a sum of money to cover any special expenses imposed on him by the nature of his employment, that sum shall not be included as part of his earnings.
38.1(3)The maximum annual earnings shall be set by the Commission as of the first day of January of each year and shall be an amount equal to one and one-half times the New Brunswick Industrial Aggregate Earnings.
1981, c.80, s.15; 1982, c.67, s.3; 1985, c.38, s.2; 1992, c.34, s.11; 1994, c.70, s.12; 1998, c.4, s.4
Computation of compensation
38.11(1)Where a worker is injured or suffers a recurrence of an injury on or after January 1, 1998, the compensation payable under this Part shall be awarded as set out in this section.
38.11(2)Where injury or recurrence of an injury to a worker referred to in subsection (1) results in a loss of earnings beyond the day of the injury, the Commission shall estimate the loss of earnings therefrom and shall pay compensation to the worker in an amount equal to eighty-five per cent of the estimated loss of earnings.
38.11(3)Notwithstanding subsection (2), the Commission shall not pay compensation under subsection (2) until the worker who is injured or has suffered a recurrence of an injury has not received any remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source for a period of time after the injury or recurrence of the injury that is equivalent to three working days.
38.11(3.1)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (3) shall be read as a reference to “two working days”.
38.11(3.2)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (3) shall be read as a reference to “one working day”.
38.11(4)The Commission shall not pay compensation to a worker in respect of the period of time referred to in subsection (3) except as provided for in subsection (5), (6), (7), (8) or (8.1).
38.11(5)Where a worker who is injured is admitted to a hospital facility as an in-patient as a result of the injury, the Commission shall pay compensation in respect of the period of time referred to in subsection (3) unless compensation is paid under subsection (7).
38.11(6)Where a worker who suffers a recurrence of an injury is admitted to a hospital facility as an in-patient as a result of the recurrence of the injury, the Commission shall pay compensation in respect of the period of time referred to in subsection (3) unless compensation is paid under subsection (7).
38.11(7)Where a worker is disabled as a result of an injury or recurrence of an injury for more than twenty working days, the Commission shall pay compensation to the worker in respect of the period of time referred to in subsection (3) unless compensation is paid under subsection (5) or (6).
38.11(8)Where a worker has a recurrence of an injury within twenty days after the initial injury, and the worker did not receive compensation from the Commission in respect of the period of time referred to in subsection (3) with respect to the initial injury, the Commission shall pay compensation in respect of the period of time referred to in subsection (3) with respect to the recurrence of the injury.
38.11(8.1)Where a firefighter as defined in the Firefighters’ Compensation Act or a police officer as defined in the Police Act is injured, the Commission shall pay compensation in respect of the period of time referred to in subsection (3).
38.11(9)Notwithstanding subsection (2), where a worker has not received remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source in respect of the injury or recurrence of the injury for a period of time after the injury or recurrence of the injury that is equivalent to three working days and where the worker commences to receive compensation under subsection (2), there shall be payable to the worker only that portion of compensation which, when combined with the amount of any remuneration received by the worker from the employer or any income replacement or supplement benefit received by the worker from the employer or from an employment-related source, does not exceed eighty-five per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid.
38.11(9.1)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (9) shall be read as a reference to “two working days”.
38.11(9.2)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (9) shall be read as a reference to “one working day”.
38.11(10)Where a worker who is injured or suffers the recurrence of an injury returns to work under a Commission-sanctioned program but leaves the program as a result of the injury or recurrence of the injury in respect of which the worker was receiving compensation immediately before entering the program and where the worker commences to receive compensation immediately after leaving the program, subsections (3) and (4) do not apply for the purposes of determining the compensation payable to the worker immediately after leaving the program.
38.11(11)Subsection (9) applies to a worker referred to in subsection (10) for the purposes of calculating the portion of compensation payable to the worker immediately after leaving the Commission-sanctioned program.
38.11(12)Compensation being paid for loss of earnings shall be reviewed each year as of the anniversary date of the injury or recurrence of the injury and shall be adjusted on the basis of
(a) the worker’s average earnings previously determined by the Commission, increased by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings, less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker on those earnings, as increased, less
(b) the earnings it is estimated the worker is then capable of earning at a suitable occupation less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings.
38.11(13)For the purposes of subsection (9), at the time a review is conducted under subsection (12), the worker’s pre-accident net earnings shall be adjusted by increasing the worker’s pre-accident earnings previously determined by the Commission by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings and subtracting any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker on those earnings as increased.
38.11(14)Compensation under this section is payable until the earliest of the following events:
(a) the loss of earnings resulting from the injury by accident ceases;
(b) the worker attains the age of 65 years;
(c) the occurrence of a personal intervening condition not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation; or
(d) the occurrence of any circumstance not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation.
38.11(15)Notwithstanding subsection (14), where a worker is sixty-three years of age or more at the commencement of the worker’s loss of earnings resulting from the injury or recurrence of an injury, the Commission shall provide compensation pursuant to this section for a period not exceeding two years following the commencement of the worker’s loss of earnings resulting from the injury or recurrence of the injury.
38.11(16)Where a worker ceases to receive compensation because the worker has attained age sixty-five, pursuant to subsection (14), or because two years have elapsed since the commencement of the worker’s loss of earnings pursuant to subsection (15), the Commission shall provide necessary medical aid to the worker under section 41.
38.11(17)In recognition of loss of opportunity there shall be payable to a worker in a lump sum an award for a permanent physical impairment arising out of an injury, and the amount of the award, which shall be calculated in accordance with a rating schedule prescribed by regulation, shall not be less than five hundred dollars and not more than the maximum annual earnings.
38.11(18)A worker who was injured before the coming into force of section 38.11 and becomes eligible for compensation under this section as a result of the recurrence of an injury is not eligible to be paid the lump sum provided for in subsection (17).
38.11(19)The Commission may, in its discretion, pay to a worker an allowance in any amount that the Commission considers appropriate for the replacement or repair of clothing worn or damaged by reason of the worker wearing an artificial limb or appliance supplied by the Commission in respect of the injury.
1998, c.4, s.5; 2009, c.58, s.1; 2018, c.18, s.2
Computation of compensation
38.2(1)Where a worker is injured or suffers a recurrence of an injury on or after January 1, 1982, but before January 1, 1993, the compensation payable under this Part shall be awarded as set out in this section.
38.2(1.1)Where a worker is injured or suffers a recurrence of an injury on or after January 1, 1993, but before January 1, 1998, the compensation payable under this Part shall be awarded as set out in this section.
38.2(2)Where injury or recurrence of an injury to a worker referred to in subsection (1) results in a loss of earnings beyond the day of the injury, the Commission shall estimate the loss of earnings therefrom and shall, subject to subsection (4.1), pay compensation to the worker in an amount equal to ninety per cent of the estimated loss of earnings.
38.2(2.1)Where injury or recurrence of an injury to a worker referred to in subsection (1.1) results in a loss of earnings beyond the day of the injury, the Commission shall estimate the loss of earnings from the day of the injury and shall pay compensation to the worker in an amount equal to eighty per cent of the estimated loss of earnings for the first thirty-nine weeks from the day of the injury or recurrence of the injury and thereafter in an amount equal to eighty-five per cent of the estimated loss of earnings.
38.2(2.2)Notwithstanding subsection (2.1), the Commission shall not pay compensation under subsection (2.1) until the worker who is injured or has suffered a recurrence of an injury has not received any remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source for a period of time after the injury or recurrence of the injury that is equivalent to three working days.
38.2(2.21)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (2.2) shall be read as a reference to “two working days”.
38.2(2.22)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (2.2) shall be read as a reference to “one working day”.
38.2(2.3)The Commission shall not pay compensation to a worker in respect of the period of time referred to in subsection (2.2) except as provided for in subsection (2.4).
38.2(2.4)Where a worker is disabled as a result of an injury or recurrence of an injury for more than thirty working days, the Commission shall pay compensation to the worker in respect of the period of time referred to in subsection (2.2).
38.2(2.5)Notwithstanding subsection (2.1), where a worker has not received remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source in respect of the injury or recurrence of the injury for a period of time after the injury or recurrence of the injury that is equivalent to three working days and where the worker commences to receive compensation under subsection (2.1), there shall be payable to the worker only that portion of compensation which, when combined with the amount of any remuneration received by the worker from the employer or any income replacement or supplement benefit received by the worker from the employer or from an employment-related source, does not exceed
(a) in the first thirty-nine weeks from the day of the injury or recurrence of the injury, eighty per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid, and
(b) thereafter, eighty-five per cent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid.
38.2(2.51)For the period commencing on July 1, 2019, and ending on June 30, 2020, the reference to “three working days” in subsection (2.5) shall be read as a reference to “two working days”.
38.2(2.52)For the period commencing on July 1, 2020, and ending on June 30, 2021, the reference to “three working days” in subsection (2.5) shall be read as a reference to “one working day”.
38.2(2.6)Repealed: 2001, c.36, s.7
38.2(2.7)Where a worker who is injured or suffers the recurrence of an injury on or after January 1, 1993, returns to work under a Commission-sanctioned program but leaves the program as a result of the injury or recurrence of the injury in respect of which the worker was receiving compensation immediately before entering the program and where the worker commences to receive compensation immediately after leaving the program, subsections (2.2) and (2.3) do not apply for the purposes of determining the compensation payable to the worker immediately after leaving the program.
38.2(2.8)Where a worker referred to in subsection (2.7) performed the work under a Commission-sanctioned program during the thirty-nine week period from the day of the injury or recurrence of the injury in respect of which the worker was receiving compensation immediately before entering the program, the calculation of the thirty-nine week period for the purposes of determining the compensation payable to that worker immediately after leaving the program shall be counted from the day of the injury or recurrence of the injury in respect of which the worker was receiving compensation immediately before entering the program but shall not include the period of time during which the worker performed the work under the Commission-sanctioned program.
38.2(2.9)Subsection (2.5) applies to a worker referred to in subsection (2.7) for the purposes of calculating the portion of compensation payable to the worker immediately after leaving the Commission-sanctioned program.
38.2(3)Repealed: 1992, c.34, s.12
38.2(4)Compensation being paid for loss of earnings shall be reviewed each year as of the anniversary date of the injury or recurrence of the injury and shall be adjusted on the basis of
(a) the worker’s average earnings previously determined by the Commission, increased by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings, less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker on those earnings, as increased, less
(b) the earnings it is estimated the worker is then capable of earning at a suitable occupation less any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker based on those earnings.
38.2(4.1)Notwithstanding a review under subsection (4) and the adjustment in compensation that would follow from such review, on and after January 1, 1993, there shall be no adjustment under subsection (4) to the compensation being paid for loss of earnings to a worker under subsection (2) if the amount of compensation received by the worker in the payment from the Commission immediately before the anniversary date in the year of the review is greater than the amount obtained, for the same period of time as that covered by the payment from the Commission referred to above, by taking eighty-five per cent of the amount derived by subtracting the amount calculated in accordance with paragraph (4)(b) from the amount calculated in accordance with paragraph (4)(a) and, where the latter amount exceeds the former amount, the worker shall be entitled to the adjustment in compensation under subsection (4), but for the purposes of that adjustment and any subsequent adjustment in compensation and for the compensation payable, the worker shall be deemed to be a worker who was injured or suffered a recurrence of an injury on or after January 1, 1993.
38.2(4.2)Where a worker’s compensation has not been adjusted as a result of the application of subsection (4.1), for the purposes of subsequent reviews only and only until the worker’s compensation is adjusted under subsection (4.1), the worker’s average earnings, when calculated under paragraph (4)(a) in a subsequent review shall first be increased, in chronological order, by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings that was applicable in each of the earlier reviews that did not result in an adjustment under subsection (4.1), and the resulting figure shall then be increased by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings for the year in which the review is being conducted, but otherwise the formula for determining the basis of adjustment in compensation under subsection (4) shall remain the same.
38.2(4.3)For the purposes of subsection (2.5), at the time a review is conducted under subsection (4), the worker’s pre-accident net earnings shall be adjusted by increasing the worker’s pre-accident earnings previously determined by the Commission by the annual percentage increase in the New Brunswick Industrial Aggregate Earnings and subtracting any income tax and premiums under the Employment Insurance Act and contributions under the Canada Pension Plan that would be payable by the worker on those earnings as increased.
38.2(5)Compensation under this section is payable until the earliest of the following events:
(a) the loss of earnings resulting from the injury by accident ceases;
(b) the worker attains the age of 65 years;
(c) the occurrence of a personal intervening condition not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation; or
(d) the occurrence of any circumstance not related to the injury by accident that has become the dominant cause of the worker’s inability to return to work or participate in rehabilitation.
38.2(6)Notwithstanding subsection (5), where a worker is sixty-three years of age or more at the commencement of his loss of earnings resulting from the injury or recurrence of an injury the Commission shall provide compensation pursuant to this section for a period not exceeding two years following the commencement of his loss of earnings resulting from the injury or recurrence of the injury.
38.2(7)Where a worker ceases to receive compensation because he has attained age sixty-five, pursuant to subsection (5), or because two years have elapsed since the commencement of his loss of earnings pursuant to subsection (6), the Commission shall provide necessary medical aid to the worker under section 41.
38.2(8)In recognition of loss of opportunity there shall be payable to a worker in a lump sum an award for a permanent physical impairment arising out of an injury, and the amount of the award, which shall be calculated in accordance with a rating schedule prescribed by regulation, shall not be less than five hundred dollars and not more than the maximum annual earnings.
38.2(9)A worker who was injured before the coming into force of section 38.2 and becomes eligible for compensation under this section as a result of the recurrence of an injury is not eligible to be paid the lump sum provided for in subsection (8).
38.2(10)The Commission may, in its discretion, pay to a worker an allowance in any amount that the Commission considers appropriate for the replacement or repair of clothing worn or damaged by reason of the worker wearing an artificial limb or appliance supplied by the Commission in respect of the injury.
1981, c.80, s.15; 1982, c.67, s.4; 1985, c.38, s.3; 1989, c.65, s.11; 1992, c.34, s.12; 1992, c.74, s.1; 1994, c.70, s.12; 1998, c.4, s.6; 2000, c.49, s.1; 2001, c.36, s.7; 2018, c.18, s.2
GUARANTEED SUPPLEMENT
Provision of guaranteed supplement
38.21(1)Where compensation is paid to a worker under section 38.2, the Commission shall provide for that worker from the Accident Fund, when the worker reaches the age of sixty-five years and continuing for the life of the worker, a guaranteed supplement in an amount equal to the difference in the benefit that the worker would have received under the Canada Pension Plan if the worker had been able to contribute to the Canada Pension Plan while in receipt of compensation under section 38.2 and the benefit the worker actually receives under the Canada Pension Plan.
38.21(2)Subsection (1) applies only to a worker who is in receipt of the guaranteed supplement before January 1, 1998.
38.21(3)A worker who is in receipt of the guaranteed supplement under this section may elect to receive benefits under subsection 38.22(2) and if the worker so elects, no amount is payable under this section.
1992, c.34, s.13; 1994, c.70, s.12; 1998, c.4, s.7
PENSION BENEFITS
1998, c.4, s.8
Pension benefits
38.22(1)When compensation is paid to a worker under section 38.11 for a period exceeding twenty-four consecutive months, the Commission shall set aside an amount, commencing in the twenty-fifth month, to be used with the rate of return, whether positive or negative, that applies to that amount to provide a pension for the worker at age sixty-five or to be disbursed in accordance with subsection (13).
38.22(1.1)The amount under subsection (1) shall be calculated by multiplying the percentage prescribed below times the amount of compensation paid beginning from the twenty-fifth consecutive month to the worker’s sixty-fifth birthday or until the worker dies, whichever occurs first:
(a) 5% for the period between January 1, 1998, to December 31, 2008; and
(b) 10% from January 1, 2009, onwards.
38.22(1.2)Notwithstanding subsection (1.1), if a worker reaches the age of sixty-five on or after January 1, 2009, or if the worker dies on or after January 1, 2009, but before reaching the age of sixty-five, the Commission shall set aside for the worker’s account in the Pension Fund such amount of money as though it had been paid into the account at the rate of 10% plus the rate of return, whether positive or negative, applied at the rate prescribed in subsection (9), and such sum shall be used to provide a pension to the worker at age sixty-five or to be disbursed in accordance with subsection (13).
38.22(2)Subject to subsections (4), (5), (6) and (7), when compensation is paid to a worker under section 38.2 for a period exceeding twenty-four consecutive months, the Commission shall set aside an amount, commencing in the twenty-fifth month, to be used with the rate of return, whether positive or negative, that applies to that amount to provide a pension for the worker at age sixty-five or to be disbursed in accordance with subsection (13).
38.22(2.1)The amount under subsection (2) shall be calculated by multiplying the percentage prescribed below times the amount of compensation paid beginning from the twenty-fifth consecutive month to the worker’s sixty-fifth birthday or until the worker dies, whichever occurs first:
(a) 5% for the period between January 1, 1993, to December 31, 2008; and
(b) 10% from January 1, 2009, onwards.
38.22(2.2)Notwithstanding subsection (2.1), if a worker reaches the age of sixty-five on or after January 1, 2009, or if the worker dies on or after January 1, 2009, but before reaching the age of sixty-five, the Commission shall set aside for the worker’s account in the Pension Fund such amount of money as though it had been paid into the account at the rate of 10%, plus the rate of return, whether positive or negative, applied at the rate prescribed in subsection (9), and such sum shall be used to provide a pension to the worker at age sixty-five or to be disbursed in accordance with subsection (13).
38.22(3)An amount set aside under subsection (1) or (2) shall be set aside in the reserves of the Commission in a separate fund to be known as the Pension Fund and shall be administered as provided by regulation.
38.22(4)The Commission shall not set aside an amount under subsection (2) in respect of those months from the twenty-fifth month onwards for which a worker was paid compensation and in respect of which the worker received, pursuant to section 20 of An Act to Amend the Workers’ Compensation Act, chapter 34 of the Acts of New Brunswick, 1992, an amount plus the rate of return, whether positive or negative, applied to that amount for the worker under section 38.3 before its repeal.
38.22(5)No amount shall be set aside under subsection (2) in respect of a worker who died before January 1, 1998.
38.22(6)No amount shall be set aside under subsection (2) in respect of a worker who is in receipt of a guaranteed supplement under section 38.21 unless the worker makes an election under subsection 38.21(3).
38.22(7)The Commission shall, with respect to an amount set aside pursuant to subsection (2),
(a) set aside an amount as soon as practicable after the commencement of this section in respect of compensation paid between the period January 1, 1993, to December 31, 1997, inclusive, and
(b) set aside an amount on a monthly basis in respect of compensation paid on or after January 1, 1998.
38.22(8)The Commission shall, with respect to the amount referred to in paragraph (7)(a), calculate the amount by assuming
(a) that it had been set aside on a monthly basis in accordance with subsection (2) in respect of compensation paid during the period January 1, 1993, and December 31, 1997, inclusive, and
(b) that the rate of return, whether positive or negative, had been applied in accordance with subsection (9).
38.22(9)The rate of return, whether positive or negative, shall be assumed to have been applied quarterly to the amount credited to each worker’s account in the Pension Fund and the rate of return, whether positive or negative, applied by the Commission shall be the average yield rate of the investment portfolio of the Pension Fund during each quarter.
38.22(10)An amount set aside under subsection (1) or (2) shall not be deducted from the compensation paid to the worker but shall be an amount which the Commission shall set aside over and above the compensation payable to the worker under section 38.11 or 38.2.
38.22(11)In determining the amount of compensation paid for the purposes of subsection (1) or (2), the Commission shall not take into account any lump sum provided under subsection 38.11(17) or 38.2(8).
38.22(12)Where the pension to which a worker is entitled under subsection (1) or (2) would be less than five hundred dollars per year, the Commission may, in lieu of that pension, pay to the worker at age sixty-five the accumulated capital and the return, whether positive or negative, on the accumulated capital.
38.22(13)Where a worker dies before attaining age sixty-five, any amount set aside in the reserves of the Commission for the purpose of providing the worker with a pension at age sixty-five, together with the rate of return, whether positive or negative, applied to the amount, shall be divided equally among the surviving dependents of the worker; but where a spouse has the care of a dependent child of the worker that child’s share shall be given to the spouse, and where the worker has no surviving dependents the amount set aside shall remain in the Pension Fund.
38.22(14)The pension provided pursuant to this section shall be in addition to and not in lieu of any benefit provided pursuant to the Canada Pension Plan and the Old Age Security Act.
1998, c.4, s.8; 2008, c.55, s.1; 2016, c.48, s.19
PENSION BENEFITS
Repealed: 1992, c.34, s.14
Repealed
38.3Repealed: 1992, c.34, s.15
1981, c.80, s.15; 1985, c.38, s.4; 1992, c.34, s.15
TRANSITIONAL
Repealed: 1982, c.67, s.4
Repealed
38.4Repealed: 1982, c.67, s.4
1981, c.80, s.15; 1982, c.67, s.4
BURIAL AND
RELATED EXPENSES
Burial and related expenses
38.5Where a worker dies after the coming into force of this section as a result of an injury incurred either before or after the coming into force of this section, in addition to any survivors’ benefits, the Commission shall pay to the worker’s estate
(a) an amount equal to 40% of the New Brunswick Industrial Aggregate Earnings to assist with necessary expenses of death such as burial,
(a.1) an amount equal to 50% of the New Brunswick Industrial Aggregate Earnings, and
(b) where, owing to the circumstances of the case, the body of the worker is transferred for a considerable distance for burial, a further sum for necessary expenses of that transportation.
1981, c.80, s.15; 1985, c.38, s.5; 1989, c.65, s.12; 1994, c.70, s.12; 2001, c.36, s.8; 2012, c.61, s.1
SURVIVORS’ BENEFITS
Computation of benefits – general
38.51(1)Where a worker dies on or after January 1, 1998, as a result of an injury incurred either before or after January 1, 1998, benefits shall be payable to the worker’s dependents as set out in this section and section 38.52 or 38.53, as the case may be.
38.51(2)Where a worker is survived by a dependent spouse, there shall be payable to that spouse for one year or to age sixty-five, whichever occurs first, benefits equal to eighty per cent of the worker’s average net earnings, based on the worker’s average earnings as determined by the Commission.
38.51(3)Within one year after the date of the worker’s death, a dependent surviving spouse shall elect to receive benefits in accordance with section 38.52 or 38.53.
38.51(4)Before a surviving spouse makes an election under this section, the Commission shall pay for independent financial advice to be given to the spouse with respect to the election, up to a maximum amount as determined by resolution of the Commission.
38.51(5)Where a dependent surviving spouse is unable or unwilling to make an election within the period referred to in subsection (3), the Commission may extend the period of time within which the election may be made, but if an election is not made within such further period of time, the Commission may, upon a consideration of the circumstances of the surviving spouse and other dependents of the worker, make an election in place of the spouse that, in its opinion, it considers to be the most beneficial for the spouse and the other dependents and such election shall be deemed to be an election by the spouse.
38.51(6)An election under this section is irrevocable and shall be deemed to be effective as of the anniversary date one year after the date of death of the worker.
38.51(7)Where an election is made by a surviving spouse or the Commission under this section, all other dependents of the worker shall be deemed to have made the same election.
38.51(8)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 before an election is made under this section, 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.
38.51(9)Adjustments in the benefits payable under subsection (8) due to a change in the child’s age shall become effective the month following the child’s anniversary month.
38.51(10)Where benefits are payable for a child of sixteen years of age or more under subsection (8), the Commission in its discretion may pay directly to the child, in whole or in part, the benefits payable under that subsection.
38.51(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 (8), 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 the child ceases to be an invalid or dependent.
38.51(12)Where a dependent other than a dependent surviving spouse or child under subsection (8) or (11) was dependent upon the worker at the time of the worker’s 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, the worker would have continued to contribute to the support of the dependent.
1998, c.4, s.9
Computation of benefits – dependent surviving spouse
38.52(1)Where a dependent surviving spouse elects to receive benefits under this section, there shall be payable to that spouse up to age sixty-five years, subject to subsection (2), benefits equal to eighty-five per cent of the worker’s average net earnings, based on the worker’s average earnings as determined by the Commission.
38.52(2)Where the payment of the full benefit under subsection (1) would, when combined with
(a) the earnings, not exceeding the maximum annual earnings, of the new spouse, if any, 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 new spouse, if any, on those earnings,
exceed eighty-five per cent 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 eighty-five per cent of the net family income.
38.52(3)For the purposes of subsection (2),
“net family income” means the aggregate of(revenu familial net)
(a) the average net earnings of the worker, and
(b) the earnings of the new spouse, if any, 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 new spouse based on those earnings;
“new spouse” means a person(nouveau conjoint)
(a) who marries and is cohabiting with a dependent surviving spouse, or
(b) who is cohabiting with a dependent surviving spouse in a conjugal relationship.
38.52(4)Benefits awarded to a surviving dependent 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.
38.52(5)The Commission may withhold benefits under this section until the dependent surviving spouse provides the Commission with the information necessary to calculate the benefits payable under this section.
38.52(6)Where there is a surviving child of the worker and the dependent surviving spouse is unable or unwilling to care for the child or the dependent surviving spouse subsequently dies, 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.
38.52(7)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.
38.52(8)Where benefits are payable for a child of sixteen years of age or more under subsection (6), the Commission in its discretion may pay the benefits in whole or in part directly to the child.
38.52(9)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 the child ceases to be an invalid or dependent.
38.52(10)Where a dependent other than a dependent surviving spouse or child under subsection (6) or (9) was dependent upon the worker at the time of the worker’s 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, the worker would have continued to contribute to the support of the dependent.
1998, c.4, s.9
Idem
38.53(1)Where a surviving dependent spouse elects to receive benefits under this section, the Commission shall pay to the spouse
(a) as soon as practicable after the effective date of the election, a lump sum payment equal to sixty per cent of the net annual income of the worker, as calculated by the Commission,
(b) up to the age of sixty-five years, an amount equal to sixty per cent of the worker’s average net earnings, based on his or her average net earnings as determined by the Commission, and
(c) an amount under subsection (3) in respect of each dependent child.
38.53(2)Benefits payable to a spouse under paragraph (1)(b) 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.
38.53(3)The benefits payable to a surviving dependent spouse in respect of a dependent child shall be 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.
38.53(4)Where the dependent surviving spouse is unable or unwilling to care for a dependent child of the worker or the dependent surviving spouse subsequently dies, the benefits referred to in subsection (3) shall be payable to the guardian of the child.
38.53(5)Adjustments in the benefits payable in respect of a dependent child due to a change in the child’s age shall become effective the month following the child’s anniversary month.
38.53(6)Where benefits are payable in respect of a child of sixteen years of age or more under subsection (4), the Commission in its discretion may pay the benefits, in whole or in part, directly to the child.
38.53(7)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 (3), 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 the child ceases to be an invalid or dependent.
38.53(8)Where a dependent other than a dependent surviving spouse or child under subsection (3) or (7) was dependent upon the worker at the time of the worker’s 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, the worker would have continued to contribute to the support of the dependent.
1998, c.4, s.9; 2008, c.45, s.43
Pension benefits
38.54(1)Where benefits are paid to a dependent surviving spouse under subsection 38.52(1), the Commission shall, as of the first day benefits are paid under that subsection, set aside an amount equal to five per cent of the benefits paid to the spouse under that subsection, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the dependent surviving spouse at age sixty-five.
38.54(2)Where benefits are paid to a dependent surviving spouse under subsection 38.53(1), the Commission shall, as of the first day benefits are paid under that subsection, set aside an amount equal to eight per cent of the benefits paid to the spouse under that subsection and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the dependent surviving spouse at age sixty-five.
38.54(3)Subsection (1) applies with the necessary modifications to benefits paid under subsection 38.51(2) to a dependent surviving spouse who elects to receive benefits under subsection 38.52(1), except that where an election is made, the amount shall be set aside as soon as practicable after the election is effective.
38.54(4)Subsection (2) applies with the necessary modifications to benefits paid under subsection 38.51(2) to a dependent surviving spouse who elects to receive benefits under subsection 38.53(1), except that where an election is made, the amount shall be set aside as soon as practicable after the election is effective.
38.54(5)Where a dependent surviving spouse dies before an election is made under section 38.51, the Commission shall set aside an amount equal to five per cent of the benefits paid to the spouse under subsection 38.51(2).
38.54(6)An amount set aside under this section shall not be deducted from the benefits paid to the dependent surviving spouse but shall be an amount which the Commission shall set aside over and above the benefits payable to the surviving spouse under subsection 38.51(2), 38.52(1) or 38.53(1), as the case may be.
38.54(7)An amount set aside under this section shall be set aside in the reserves of the Commission in a separate fund to be known as the Pension Fund and shall be administered as provided by regulation.
38.54(8)Where the pension to which a surviving spouse is entitled under this section would be less than five hundred dollars per year, the Commission may, in lieu of that pension, pay the accumulated capital and the return, whether positive or negative, on the accumulated capital to the surviving spouse at age sixty-five.
38.54(9)Where a surviving spouse dies before attaining age sixty-five, any amount set aside in the reserves of the Commission for the purpose of providing the surviving spouse with a pension at age sixty-five together with the return, whether positive or negative, on the amount, shall be divided equally among the surviving dependents of the spouse; and where the spouse has no surviving dependents at death, the amount set aside shall remain in the Pension Fund.
38.54(10)The pension provided pursuant to this section shall be in addition to and not in lieu of any benefit provided pursuant to the Canada Pension Plan and the Old Age Security Act.
1998, c.4, s.9; 2016, c.48, s.19
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
Pension benefits
38.7(1)Where benefits are paid to a dependent surviving spouse under subsection 38.6(2) the Commission shall, as of the first day benefits are paid under that subsection, set aside an amount equal to eight per cent of the benefits paid under that subsection, and that amount together with the rate of return, whether positive or negative, applied to the amount shall be used to provide a pension for the dependent surviving spouse at age sixty-five or at the expiration of the two-year period mentioned in that subsection, as the case may be.
38.7(2)The amount set aside pursuant to subsection (1) shall not be deducted from the benefits paid to the surviving spouse but shall be an amount which the Commission shall set aside over and above the benefits payable to the surviving spouse under subsection 38.6(2).
38.7(3)The amount set aside pursuant to subsection (1) shall be set aside in the reserves of the Commission in a separate fund to be known as the Pension Fund and shall be administered as provided by regulation.
38.7(4)Where the pension to which a surviving spouse is entitled under subsection (1) would be less than five hundred dollars per year, the Commission may, in lieu of that pension, pay the accumulated capital and the return, whether positive or negative, on the accumulated capital to the surviving spouse at age sixty-five or at the expiration of the two-year period mentioned in subsection 38.6(2), as the case may be.
38.7(5)Where a surviving spouse dies before attaining age sixty-five or before the expiration of the two-year period mentioned in subsection 38.6(2), as the case may be, any amount set aside in the reserves of the Commission for the purpose of providing the surviving spouse with a pension at age sixty-five or at the expiration of the two-year period mentioned in that subsection, as the case may be, together with the rate of return, whether positive or negative, applied to the amount, shall be divided equally among the surviving dependents of the spouse; and where the spouse has no surviving dependents at his or her death, the amount set aside shall remain in the Pension Fund.
38.7(6)The pension provided pursuant to this section shall be in addition to and not in lieu of any benefit provided pursuant to the Canada Pension Plan and the Old Age Security Act.
1981, c.80, s.15; 1985, c.38, s.7; 1994, c.70, s.12; 2000, c.49, s.2; 2008, c.45, s.43; 2016, c.48, s.19
Dependant surviving spouse and child
38.8(1)Where a dependent surviving spouse or other dependent was in receipt of survivors’ benefits or was eligible for survivors’ benefits under this Part immediately before the coming into force of this section, survivors’ benefits shall be payable to him or her as set out in this section.
38.8(1.1)Where a dependent child would have qualified under subsection (1) but for the fact that immediately before the coming into force of subsection (1) the child was not attending school on a full-time basis, and that child subsequently returns to attend school on a full-time basis, benefits shall be payable as set out in this section.
38.8(1.2)Subsection (1.1) shall be deemed to have come into force on January 1, 1982, and in any case to which subsection (1.1) applies payments shall be made by the Commission notwithstanding section 16.
38.8(2)The Commission shall pay to a dependent surviving spouse described in subsection (1) an amount equal to forty per cent of the New Brunswick Industrial Aggregate Earnings, in addition to any amount payable under subsection (3), and that amount shall be adjusted each year as of the anniversary date of the death of the worker.
38.8(3)Benefits payable to a surviving spouse or guardian for the benefit of a dependent child described in subsection (1) or (1.1) shall be 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.
38.8(4)Adjustments in the benefits payable under subsection (3) due to a change in the child’s age shall become effective the month following the child’s anniversary month.
38.8(5)Where benefits are payable for a child of sixteen years of age or more under subsection (3), the Commission, in its discretion, may pay directly to the child, in whole or in part, the benefits payable under that subsection.
38.8(6)Benefits shall be payable without regard to age to a dependent invalid child who was in receipt of benefits or was eligible for benefits before the coming into force of this section, 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 scale of payments laid down in subsections (2) and (3), but the annual amount paid by the Commission shall not be less than fifteen per cent of the New Brunswick Industrial Aggregate Earnings, and payments to such child shall continue during the lifetime of the child or until he ceases to be an invalid or dependent.
38.8(7)Repealed: 1998, c.4, s.11
38.8(8)Repealed: 1998, c.4, s.11
38.8(9)Where a dependent of the deceased worker other than a dependent surviving spouse under subsection (2) or a child under subsection (3) or (6), was in receipt of benefits or was eligible for survivors’ benefits before the coming into force of this section, the Commission shall continue to 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 scale of payments laid down in subsections (2), (3) and (6), 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; 1984, c.34, s.3; 1985, c.38, s.8; 1989, c.65, s.14; 1994, c.70, s.12; 1998, c.4, s.11; 2000, c.49, s.3; 2008, c.45, s.43
Reinstatement of benefits under section 38.6 or 38.8
38.81(1)This section applies to dependent spouses who lost their benefits under section 38.6 or 38.8 on or after April 17, 1985, as a result of the operation of subsection 38.6(7) or 38.8(7), as the case may be, prior to its repeal.
38.81(2)Notwithstanding section 16, a dependent spouse may apply to the Commission to have benefits reinstated under section 38.6 or 38.8, as the case may be, and the Commission may reinstate the benefits.
38.81(3)An application under subsection (2) shall be made in writing on or before January 1, 2001, and the Commission shall not accept an application that is received after January 1, 2001.
38.81(4)No application may be made under subsection (2) by the estate of a dependent spouse.
38.81(5)Where a dependent spouse who would have been entitled to benefits under subsection 38.6(2), but for the operation of subsection 38.6(7), has benefits reinstated under subsection 38.6(2), the Commission shall, for the period of time from the loss of benefits by the spouse as a result of the operation of subsection 38.6(7) to the time of reinstatement of the benefits,
(a) calculate the amount of benefits that would, but for the operation of subsection 38.6(7), have been paid to the spouse under subsection 38.6(2), and
(b) calculate the amount of benefits paid out under section 38.6 as a result of the operation of subsection 38.6(7).
38.81(6)Where the amount calculated under paragraph (5)(a) exceeds the amount calculated under paragraph (5)(b), the Commission shall pay the difference to the spouse upon reinstatement of the benefits.
38.81(7)Where the amount calculated under paragraph (5)(a) is less than the amount calculated under paragraph (5)(b), no amount shall be collected by the Commission from the spouse upon reinstatement of the benefits.
38.81(8)Where a dependent spouse who would have been entitled to benefits under subsection 38.8(2), but for the operation of subsection 38.8(7), has benefits reinstated under subsection 38.8(2), the Commission shall, for the period of time from the loss of benefits by the spouse as a result of the operation of subsection 38.8(7) to the time of reinstatement of the benefits,
(a) calculate the amount of benefits that would, but for the operation of subsection 38.8(7), have been paid to the spouse under subsection 38.8(2), and
(b) calculate the amount of benefits paid out under section 38.8 as a result of the operation of subsection 38.8(7),
and shall pay to the spouse the difference obtained by subtracting the amount derived under paragraph (b) from the amount derived under paragraph (a).
38.81(9)Where benefits are reinstated to a spouse referred to in subsection (5), the Commission shall reinstate benefits to the spouse under section 38.7.
38.81(10)When reinstating benefits under section 38.7, the Commission shall, for the purpose of calculating the amount to be paid into the Pension Fund in respect of the period of time from the loss of benefits by a spouse as a result of the operation of subsection 38.6(7) to the time of reinstatement, assume that the amount payable under section 38.7 had been set aside on a monthly basis during that period and that the rate of return, whether positive or negative, had been applied in accordance with subsection (11).
38.81(11)The rate of return, whether positive or negative, shall be assumed to have been applied quarterly to the amount credited to a spouse’s account in the Pension Fund and the rate of return, whether positive or negative, shall be the average yield rate of the investment portfolio of the Pension Fund during each quarter.
38.81(12)No rate of return, other than the rate of return applied under subsection (10), is applied by the Commission with respect to any other benefit that is reinstated pursuant to this section
1998, c.4, s.12; 2016, c.48, s.19
Repealed
38.9Repealed: 1982, c.67, s.4
1981, c.80, s.15; 1982, c.67, s.4
GENERAL
Payment of compensation or benefits
38.91(1)Any compensation or benefits payable by the Commission under section 38.11 or 38.2 to a worker shall be reduced by the same proportion of the amount the worker receives under the Canada Pension Plan with respect to the injury or recurrence of the injury, that the estimated loss of earnings bears to the average net earnings.
38.91(1.01)Where a worker receives a retroactive payment under the Canada Pension Plan with respect to an injury or recurrence of an injury and the compensation or benefits paid by the Commission under section 38.11 or 38.2 to the worker have not been reduced under subsection (1) and where the worker assigns the payment to the Commission and subsequently pays income tax on the amount assigned, the Commission shall reimburse the worker, from the Accident Fund, an amount which, in the opinion of the Commission, is equivalent to the income tax the worker paid on the amount assigned.
38.91(1.1)Any compensation or benefits payable by the Commission under section 38.51, 38.52, 38.53 or 38.6 to a dependent, other than a dependent child, shall be reduced by the amount that person is entitled to receive under the Canada Pension Plan relative to the death.
38.91(2)The Commission may provide in each case that compensation or benefits may be paid weekly, bi-weekly or monthly, or may fix any other basis of payment.
38.91(3)Where the Commission determines that dependents do not live together as a family unit, the Commission may, in its discretion, divide the benefits mentioned in sections 38.51, 38.52, 38.53, 38.6 and 38.8 among those dependents as it considers just and equitable.
38.91(4)When there are both total and partial dependents, the compensation or benefits may be allotted partly to the total and partly to the partial dependents, as the Commission may in its discretion provide.
38.91(5)Where a worker is entitled to compensation and it is made to appear to the Commission that an order has been made against the worker by a court of competent jurisdiction in this Province or in any other province or territory of Canada for the maintenance of the worker’s spouse, child or other dependent, the Commission may divert the payment of compensation, in whole or in part, from the worker for the benefit of the spouse, child, or other dependent.
38.91(5.1)Where a worker is entitled to compensation and it is made to appear to the Commission that the worker is incarcerated, the Commission may divert the payment of compensation, in whole or in part, from the worker for the benefit of a dependent during the period of the worker’s incarceration.
38.91(6)In no case shall the total benefits paid to all dependents of a worker exceed the compensation which would have been payable to the worker had he been totally unable to work if he had survived.
38.91(7)Where a person is being paid or is entitled to be paid benefits in respect of the death of a worker and subsequently becomes entitled to be paid benefits in respect of the death of another worker, that person shall be paid only the greater of the benefit payments that he is entitled to be paid.
38.91(8)Repealed: 1992, c.34, s.16
1981, c.80, s.15; 1982, c.67, s.4; 1989, c.65, s.15; 1992, c.34, s.16; 1994, c.70, s.12; 1998, c.4, s.13; 2001, c.36, s.9
Repealed
39Repealed: 1981, c.80, s.16
R.S., c.255, s.36; 1981, c.80, s.16
Form of payment, special operation or medical treatment
40(1)The Commission may in its discretion,
(a) commute the whole or any part of the payments due or payable to any worker or dependent for a lump sum,
(b) substitute for such payments any other scheme of periodical payments, or
(c) substitute for any lump sum a scheme of periodical payments deemed most expedient in the interest of the worker or dependent.
40(2)When, in the opinion of the Commission, it will conserve the Accident Fund to provide a special surgical operation or other special medical treatment for a worker, the expense of such operation or treatment may be paid out of the Accident Fund.
R.S., c.255, s.37; 1981, c.80, s.3; 1994, c.70, s.12
Right of worker to medical aid
41(1)A worker entitled to compensation under this Part, or who would have been entitled to compensation had the worker been disabled for one day, shall be entitled, subject to subsection (3), to medical aid as a result of the accident.
By whom medical aid furnished
41(2)In the industries within the scope of this Part, such medical aid shall be furnished or arranged for by the Commission, as it may direct or approve, and shall be paid for by the Commission out of the Accident Fund, and the necessary amount shall be included in the assessments levied upon the employers.
Necessity, character and sufficiency of medical aid
41(3)All questions as to the necessity, character and sufficiency of any medical aid under subsection (1) shall be determined by the Commission in its discretion.
Fees respecting medical aid
41(4)The fees or charges for such medical aid shall not be more than would be properly or reasonably charged to the worker if he were himself paying the bill, and except in the case of an employer individually liable and himself furnishing the medical aid, the amount thereof shall be fixed and determined by the Commission and no action for any amount larger than that fixed by the Commission lies in respect of any medical aid herein provided for; and no action for the recovery of fees or charges for such medical aid may be brought against the Commission unless application for payment thereof is made in writing to the Commission within ninety days after such medical aid has been completely rendered.
Offence respecting contribution by worker to medical aid
41(5)Except as hereinafter provided in subsection (6), no employer shall, directly or indirectly, collect, receive or demand from any worker any contribution towards the expense of medical and dental aid and every person contravening this provision is, for every contravention liable to a penalty not exceeding fifty dollars and also liable, upon the order of the Commission, to reimburse the worker the amount of any amount so collected, received or obtained.
Provision of medical aid arrangements by employer
41(6)When an employer has established or hereafter establishes, in connection with any industry carried on by him, an arrangement for furnishing medical aid to his workers that, in the opinion of the Commission, is at least as favourable to the workers as that provided for in subsection (2), the Commission may, after investigating the facts and considering the wishes of both workers and employer approve of such arrangements, and as long as the approval continues, such arrangements may be continued in lieu of the medical aid hereinbefore provided for, and if the injury is within the scope of this Part, the employer shall be entitled to such reimbursement out of the Accident Fund, or to such reduction in his rate of assessment as the Commission shall deem just, but medical aid so furnished or provided shall be subject at all times to the supervision and control of the Commission.
Provision of first aid by employer
41(7)Employers in any industry in which it is deemed proper may be required by the Commission to maintain as directed by the Commission such first aid appliances and services as the Commission may direct, and the Commission may make such order respecting the expenses thereof as may be deemed just.
Transportation to medical aid
41(8)An employer shall furnish to a worker injured in his employment, who is in need of it, immediate conveyance and transportation to a hospital facility or to a physician or to the worker’s home, such transportation to be paid for by the Commission out of the Accident Fund, and any employer failing so to do is liable to a penalty not exceeding twenty dollars.
Workers’ contribution to medical aid scheme
41(9)Where in conjunction with or apart from the medical aid to which workers are entitled, free of charge, further or other service or benefit is, or is proposed to be, given or arranged for, any question arising as to whether or to what extent any contribution from workers is or would be prohibited by this Act shall be determined by the Commission.
Furnishing of a medical report
41(10)Every surgeon, other physician, nurse or nurse practitioner attending, consulted respecting, or having the care of any worker shall furnish to the Commission from time to time without additional charge, such report as may be required by the Commission in respect of the worker.
41(10.1)In subsection (10)
“nurse” means a person who is registered under the laws of the Province as authorized to practice as a nurse;(infirmière)
“nurse practitioner” means a person who is registered under the laws of the Province as authorized to practice as a nurse practitioner.(infirmière praticienne)
Sick Mariners’ Fund
41(11)In case of a worker employed as a master, mate, engineer, seaman, sailor, steward or fireman, or in any other capacity on board of any vessel on which duty has been paid or is payable for the purpose of the Sick Mariners’ Fund, under Part V of the Canada Shipping Act, chapter S-9 of the Revised Statutes of Canada, 1970, the above subsections shall not apply to such worker during the period in respect of which such duty has been paid or is payable.
Duty of worker to take medical examination
41(12)A worker who claims compensation, or to whom compensation is payable under this Act, shall, where requested by the Commission, present himself for examination by a medical consultant or consultants chosen and paid by the Commission.
Reference to medical referee
41(13)The medical practitioner who has examined the worker by direction of the Commission under subsection (12) shall report to the Commission on the condition of the worker and his fitness for employment, specifying where necessary the kind of employment and if unfit, the cause of such unfitness.
Certificate of medical referee
41(14)The medical practitioner who has examined the worker under subsection (12) shall provide in each case a copy of his report to the worker’s attending physician.
When Commission may diminish or suspend compensation
41(15)The Commission may in its discretion diminish the compensation to which a worker is entitled or suspend payment of the compensation in any of the following circumstances:
(a) the worker does not attend or participate in an examination when required to do so by the Commission under subsection (12) or obstructs the examination;
(b) the worker does not attend or participate in medical treatment or a rehabilitation program when the Commission considers it necessary for the worker’s treatment or rehabilitation; or
(c) the worker persists in dangerous and unsanitary practices imperilling or impeding the rehabilitation of the worker.
Repealed
41(16)Repealed: 2018, c.18, s.2
R.S., c.255, s.38; 1953, c.25, s.27; 1961-62, c.72, s.15; 1965, c.48, s.6; 1975, c.92, s.6; 1980, c.56, s.9; 1981, c.80, s.3, 17; 1992, c.52, s.35; 1994, c.70, s.12; 2002, c.23, s.12; 2018, c.18, s.2
Determination of scale
42Subject to subsection 38(7), to sections 38.1 to 38.91 and to section 48, the entitlement of any person to compensation or any other benefits under this Part shall be determined in accordance with the scale, type and extent of compensation or other benefits in force at the time of the accident out of which the claim for compensation or other benefits arises.
1965, c.48, s.7; 1981, c.80, s.18; 1992, c.34, s.17; 1998, c.4, s.14
Employer’s duty when worker suffers personal injury by accident
42.1(1)In this section
“establishment” means a place or places at or in which all or any part of a business or undertaking of an employer is or has been carried on;(établissement)
“suitable employment” means appropriate employment that a worker who suffered a personal injury by accident is capable of doing, considering the worker’s physical abilities and employment qualifications and which does not endanger the health, safety or physical well-being of the worker.(emploi convenable)
42.1(2)No employer shall dismiss, suspend, lay off, penalize, discipline or discriminate against a worker because the worker suffered a personal injury by accident in respect of which the worker is, in the opinion of the Commission, entitled to make application for compensation under this Part, from the date of the personal injury
(a) to the date the Commission renders its decision with respect to the application for compensation, or
(b) where the employer is bound by the requirements of subsection (3) or (5), to the date the employer is no longer bound by those requirements,
whichever is later.
42.1(3)Subject to subsection (6), where a worker, other than one doing construction work in the construction industry,
(a) suffered a personal injury by accident in respect of which the worker was entitled to compensation under this Part,
(b) had been, on the commencement of a period in which the worker was entitled to compensation under this Part with respect to that personal injury, employed by the employer for a period of at least one year, and
(c) is, in the opinion of the Commission, able to resume work,
the employer shall
(d) permit the worker to resume work in the position the worker held immediately before the commencement of the period in respect of which the worker was entitled to compensation under this Part or in an equivalent position, with no decrease in pay and with no loss of seniority or benefits accrued up to the commencement of that period, or
(e) if, in the opinion of the Commission, the worker is unfit for a position within the meaning of paragraph (d) permit the worker to resume work in suitable employment that may become available with the employer with no loss of seniority or benefits accrued up to the commencement of the period referred to in paragraph (d).
42.1(4)Where a worker who is permitted to resume work in accordance with paragraph (3)(d) or (e), as the case may be, refuses to do so, the employer is no longer bound by the requirements under that paragraph.
42.1(5)Subject to subsection (6) where a worker doing construction work in the construction industry
(a) suffered a personal injury by accident in respect of which the worker was entitled to compensation under this Part, and
(b) is, in the opinion of the Commission, able to resume work,
the employer shall permit the worker to resume work in the position the worker held immediately before the commencement of the period in which the worker was entitled to compensation under this Part with respect to that personal injury, subject to the rules and practices respecting hiring and placement in the worker’s trade, if any, and if the construction project and the position exist at the time the worker is able to resume work.
42.1(6)An employer is bound by the requirements under subsection (3) or (5), as the case may be,
(a) for a period of one year after the commencement of the period in which the worker was entitled to compensation under this Part where the worker was employed in an establishment numbering ten but fewer than twenty workers on the commencement of that period, or
(b) for a period of two years after the commencement of the period in which the worker was entitled to compensation under this Part where the worker was employed in an establishment numbering twenty or more workers on the commencement of that period.
42.1(7)Where there is a conflict between this section and a provision of a collective agreement that is binding on the employer or the policies and practices of the employer that apply to the worker and this section affords the worker greater rights than those available to the worker under the collective agreement or in accordance with the policies and practices of the employer, this section prevails.
1989, c.65, s.16; 1994, c.70, s.12
Application of Employment Standards Act respecting section 42.1
42.2(1)The provisions of section 42.1 shall be deemed to be provisions of Part III of the Employment Standards Act and shall be enforced in accordance with that Act as if they were provisions of that Act.
42.2(2)Any person who believes that an employer has violated or failed to comply with the provisions of section 42.1 may make a complaint in accordance with Part V of the Employment Standards Act.
42.2(3)A complaint made by a person in accordance with subsection (2) shall be disposed of in accordance with the provisions of the Employment Standards Act and, subject to subsection (4), the provisions of that Act apply with the necessary modifications with respect to any complaint so made.
42.2(4)Sections 4 and 8 of the Employment Standards Act do not apply with respect to a complaint made by a person in accordance with subsection (2).
42.2(5)Any order issued with respect to a complaint made by a person under subsection (2) may be enforced in accordance with the provisions of the Employment Standards Act.
42.2(6)Notwithstanding subsections 42.1(2) and 42.1(6), where a complaint made in accordance with subsection (2) is found to be valid, the rights of the worker under subsection 42.1(2), (3) or (5), as the case may be, shall not be prejudiced by the expiration of the period of time referred to in subsection 42.1(2) or paragraph 42.1(6)(a) or (b), as the case may be.
42.2(7)For the purposes of section 42.1 and this section,
(a) any worker within the meaning of this Act who would not otherwise be an employee within the meaning of the Employment Standards Act shall be deemed to be an employee within the meaning of that Act, and
(b) any employer within the meaning of this Act who would not otherwise be an employer within the meaning of the Employment Standards Act shall be deemed to be an employer within the meaning of that Act.
1989, c.65, s.16
REHABILITATION
Rehabilitation
43To aid in getting injured workers back to work and to assist in lessening or removing any handicap resulting from their injuries, the Commission may take such measures and make such expenditures as it may deem necessary or expedient, and the expense thereof shall be borne and may be collected in the same manner as compensation or expenses of administration.
R.S., c.255, s.39; 1958, c.59, s.5; 1965, c.48, s.8; 1981, c.80, s.3; 1994, c.70, s.12
PAYMENT OF
COMPENSATION
Application for compensation
44(1)When a worker or dependent is entitled to compensation under this Part he shall file with the Commission an application for such compensation, together with the certificate of the attending physician, if any, and such further or other proofs of his claim as may be required by the Commission.
Medical report of physician
44(2)A physician or surgeon attending or consulted upon a case of injury to a worker shall furnish or cause to be furnished, from time to time, such reports and in such form as may be required by the Commission in respect of the injury and the resulting condition of the worker.
Duty of physician
44(3)A physician in attendance upon an injured worker shall give all reasonable and necessary information, advice and assistance to enable that worker or his dependents, as the case may be, to make application for compensation and to furnish such proofs as may be required by the Commission.
Notice of accident by employer
44(4)The employer shall notify the Commission on a form provided by the Commission of the following:
(a) the occurrence of an accident and the nature of it;
(b) the day and the time the accident occurred;
(c) the name and address of the worker who suffered an injury;
(d) the place where the accident occurred;
(e) the name and address of the worker’s attending physician or surgeon, if any; and
(f) any other particulars prescribed by regulation.
Notice of accident by employer
44(4.1)The notice under subsection (4) shall be made within three days after the date
(a) a worker suffers an injury as a result of an accident that may entitle the worker or his or her dependents to
(i) compensation under this Part including loss of earnings and medical aid expenses but excluding first aid provided by the employer, or
(ii) medical aid under this Part;
(b) a worker is diagnosed with an occupational disease; or
(c) the employer receives a notice from a worker in accordance with subsection (6), if the employer has knowledge of the accident only by such notice.
Reports of employer
44(5)The employer shall make such further and other reports respecting such accident and worker as may be required by the Commission.
Procedure of employer
44(5.1)Every employer shall establish a procedure that requires a worker to notify the employer of an accident that the employer is required to report to the Commission under subsection (4).
Notice of accident by worker
44(6)Subject to subsection (10), compensation shall not be payable unless notice of the accident is given to the employer by the worker, or on his behalf, as soon as practicable after the happening of it and before the worker has voluntarily left the employment in which he was injured.
Contents of worker’s notice of accident
44(7)The notice to the employer by the worker shall give the name and address of the worker, and shall be sufficient if it states in ordinary language the cause of the injury and where the accident happened.
Service of worker’s notice of accident
44(8)Repealed: 2013, c.14, s.2
Notice of accident by worker
44(9)Similar notice shall also be given by the worker to the Commission.
Failure to give notice of accident to employer
44(10)Failure to give the prescribed notice to the employer or any defect or inaccuracy in a notice does not bar the right to compensation if in the opinion of the Commission the employer is not prejudiced thereby.
R.S., c.255, s.40; 1981, c.80, s.3, 19; 1994, c.70, s.12; 2013, c.14, s.2
Mode of payment of compensation
45Payments of compensation shall be made in such manner and form as may appear to the Commission to be most convenient, and in the case of minors or persons of unsound mind payments may be made to such persons as, in the opinion of the Commission, are best qualified in all the circumstances to administer such payments, whether or not the person to whom the payment is made is the legal guardian of such minor or person of unsound mind.
R.S., c.255, s.41; 1994, c.70, s.12
Power of Commission to re-open decision
46The Commission may reopen, rehear, redetermine, review or readjust any claim, decision, or adjustment, either because an injury has proven more serious than it was deemed to be, or because a change has occurred in the condition of a worker or in the number, circumstances or conditions of dependents, or otherwise.
R.S., c.255, s.42; 1981, c.80, s.3; 1994, c.70, s.12
Information respecting dependent
47The Commission may require such proof of the existence and condition of dependents in receipt of compensation payments as it may deem necessary, and may from time to time require a worker applying for or receiving compensation payments to submit to medical examination by the Commission or its duly appointed officers, and in default of such requirement being complied with, may withhold such compensation payments.
R.S., c.255, s.43; 1981, c.80, s.3; 1994, c.70, s.12
UPGRADING OF FORMER AWARDS
Upgrading of former awards
48(1)This section shall not apply to workers in receipt of compensation under section 38.11 or 38.2.
48(2)In the case of permanent total disability awards as a result of an accident, compensation shall be payable,
(a) commencing on January 1, 1990 and continuing until the worker attains the age of sixty-five or the worker’s disability ceases, whichever is earlier, in an amount equal to the greater of
(i) fifty per cent of the New Brunswick Industrial Aggregate Earnings per year, and
(ii) seventy-five per cent of the New Brunswick Industrial Aggregate Earnings per year less the aggregate of
(A) the earnings the worker is estimated to be capable of earning each year at a suitable occupation, and
(B) the amount the worker is entitled to receive each year under the Canada Pension Plan and Old Age Security Act, or
(b) commencing on January 1, 1990 and continuing for the life of the worker, or the duration of the worker’s disability, where the worker has attained the age of sixty-five before January 1, 1990, or, where the worker attains the age of sixty-five after January 1, 1990, commencing on the date on which the worker attains that age, and continuing for the life of the worker or the duration of the worker’s disability, as the case may be, in an amount equal to the greater of
(i) the compensation payable immediately prior to January 1, 1982, and
(ii) seventy-five per cent of $17,000.00 per year less the aggregate of
(A) the earnings the worker is estimated to be capable of earning each year at a suitable occupation, and
(B) the amount the worker is entitled to receive each year under the Canada Pension Plan and the Old Age Security Act, except any increase in Canada Pension Plan or Old Age Security benefits after 1984.
48(2.1)Compensation being paid under paragraph (2)(a) shall be reviewed each year, commencing in 1991, as of the anniversary date of the worker’s injury and shall be adjusted in accordance with the annual percentage increase in the New Brunswick Industrial Aggregate Earnings and the change, if any, in the amounts determined in accordance with clauses (2)(a)(ii)(A) and (B).
48(3)In the case of permanent partial disability awards as a result of an accident that diminished the earning capacity of the worker by fifty per cent or more, compensation shall be payable,
(a) commencing on January 1, 1990 and continuing until the worker attains the age of sixty-five or the worker’s disability ceases, whichever is earlier, in an amount equal to the greater of
(i) the amount calculated by reference to a scale of payments established by the Commission based upon the formula set out in subparagraph (2)(a)(i), and
(ii) the amount calculated by reference to a scale of payments established by the Commission based upon the formula set out in subparagraph (2)(a)(ii), or
(b) commencing on January 1, 1990 and continuing for the life of the worker or the duration of the disability, where the worker has attained the age of sixty-five before January 1, 1990, or, where the worker attains the age of sixty-five after January 1, 1990, commencing on the date on which the worker attains that age and continuing for the life of the worker or the duration of the worker’s disability, as the case may be, in an amount equal to the greater of the amounts calculated by reference to the scale of payments established by the Commission based upon the formulas set out in to in subparagraphs (2)(b)(i) and (2)(b)(ii).
48(3.1)Compensation being paid under paragraph (3)(a) shall be reviewed each year, commencing in 1991, as of the anniversary date of the worker’s injury and shall be adjusted in accordance with the change, if any, in the amounts determined in accordance with the formulas referred to in subparagraphs (3)(a)(i) and (3)(a)(ii).
48(4)In the case of permanent partial disability awards as a result of an accident that diminished the earning capacity of the worker by less than fifty per cent, compensation shall be payable,
(a) commencing on January 1, 1990, in an amount calculated by reference to the scale of payments established by the Commission based on the formula referred to in subparagraph (3)(a)(ii), if the amount so calculated is greater than that calculated by reference to the scale of payments established by the Commission based on the formula referred to in subparagraph (3)(a)(i), and continuing until the greater amount ceases to be the greater amount or the worker attains the age of sixty-five, whichever is earlier, or
(b) where a worker does not, or ceases to, qualify for compensation under paragraph (a), commencing on January 1, 1990, or such later date on which the worker ceases to so qualify, and continuing for the life of the worker or the duration of the worker’s disability in an amount equal to the greater of
(i) an amount calculated by reference to the scale of payments established by the Commission based on the formula referred to in paragraph (3)(b), and
(ii) an amount proportionate to seventy-five per cent of $7,200.00 per year.
48(4.1)Compensation being paid under paragraph (4)(a) shall be reviewed each year commencing in 1991, as of the anniversary date of the worker’s injury and shall be adjusted in accordance with the change, if any, in the amounts determined in accordance with the formula referred to in paragraph (4)(a).
48(5)Where an injured worker returns to employment and suffers a recurrence of the injury after the coming into force of section 38.2 but before the coming into force of section 38.11, the compensation payable to the worker in respect of the recurrence of that injury shall be as determined in section 38.2.
48(5.01)Where an injured worker returns to employment and suffers a recurrence of the injury after the coming into force of section 38.11, the compensation payable to the worker in respect of the recurrence of that injury shall be as determined in section 38.11.
48(5.1)There shall be payable to the dependent surviving spouse of a worker injured prior to January 1, 1982 who was at the time of his or her death in receipt of a compensation under subsection (2) survivors’ benefits as set out in subsection 38.8(2).
48(5.2)Section 38.81 applies with the necessary modifications to a spouse referred to in subsection (5.1).
48(6)Repealed: 1981, c.80, s.20
1961-62, c.72, s.16; 1963 (2nd Sess.), c.44, s.1; 1968, c.91, s.6; 1973, c.65, s.10; 1975, c.92, s.7; 1978, c.61, s.5; 1980, c.56, s.10; 1981, c.80, s.3, 20; 1982, c.67, s.5; 1985, c.38, s.9; 1986, c.85, s.1; 1989, c.65, s.17; 1994, c.70, s.12; 1998, c.4, s.15; 2008, c.45, s.43
CLASSIFICATION
Payment of compensation and administrative fees out of Accident Fund
49Subject to section 68, the compensation provided for in this Part and the administrative expenses of the Commission shall be paid out of a fund to be called the Accident Fund.
R.S., c.255, s.44; 2001, c.36, s.10
Classification of industries
50For the purpose of creating and maintaining the Accident Fund, the Lieutenant-Governor in Council may by regulation divide industries within the range of this Part into classes, and may rearrange such classes or withdraw from any class any industry or group of industries included therein and transfer such industry or group of industries to any other class, or form it into a separate class.
R.S., c.255, s.45; 1982, c.67, s.6
More than one class in single industry
51The Commission shall assign every industry within the scope of this Part to its proper class, and where any industry includes several departments assignable to different classes, the Commission may either assign the industry to the class of its principal or chief department, or may, for the purpose of this Part, divide the industry into two or more departments, assigning each department to its proper class.
R.S., c.255, s.46; 1994, c.70, s.12
ASSESSMENT
Annual estimate of assessment
52The Commission shall on or before the first day of February of each year make an estimate of the assessments necessary to provide funds in each of the classes sufficient to meet
(a) the cost of all claims for compensation incurred during that year;
(b) the estimated future cost of the claims in paragraph (a) payable during subsequent years; and
(c) such sum as the Commission considers appropriate for the administrative expenses of the Commission.
R.S., c.255, s.47; 1960, c.79, s.2; 1994, c.70, s.12
Annual statement of wages
53(1)Every employer shall yearly, on or before such date as shall be prescribed by regulation and at such other time or times as may by order of the Commission be required, file with the Commission a statement of the amount of the wages earned by all his employees during the year then last past, or any part thereof specified by the Commission, and of the amount which he estimates he will expend for wages during the then current year, or any part thereof specified by the Commission, and such additional information as the Commission may require, both verified by the statutory declaration of the employer or the manager of the business or, where the employer is a corporation, by an officer of the corporation having personal knowledge of the matters to which the declaration relates.
Accounts of wages
53(2)Every employer shall keep, in such form and with such detail as may be required for the purposes of this Act, a careful and accurate account of all wages paid to his employees which account shall be kept within the Province and shall be produced to the Commission and its officers when so required.
Annual statement of wages
53(3)Where the business of the employer embraces more than one branch of business or class of industry, the Commission may require separate statements to be made as to each branch or class of industry, and such statements shall be made, verified, and filed as provided by subsection (1).
Compilation of statement of wages by Board
53(4)If any employer does not file with the Commission the prescribed statement within the prescribed time, the Commission may base any assessment or supplementary assessment thereafter made upon him on such sum as in its opinion is the probable amount of the payroll of the employer, and the employer shall be bound thereby, but if it is afterwards ascertained that such amount is less than the actual amount of the payroll, the employer shall be liable to pay to the Commission the difference between the amount for which he was assessed and the amount for which he would have been assessed on the basis of his payroll.
Offences and penalty respecting statement of wages
53(5)If an employer does not comply with the provisions of subsection (1), (2) or (3), or if any statement made in pursuance of their provisions is not a true and accurate statement of any of the matters required to be set forth in it, the employer for every such non-compliance and for every such statement shall incur a penalty not exceeding five hundred dollars, and default or delay in furnishing any such statement or insufficiency of estimate of expenditure for wages shall also render the employer liable to pay an additional percentage of assessment or to pay interest, as fixed by the Commission.
Repealed
53(6)Repealed: 1989, c.65, s.18
Notice of building permit or development and building permit
53(7)Within three days after the granting of any building permit or development and building permit in any city, town or parish, notice thereof, together with such particulars as the Commission may require, shall be given to the Commission by the person whose duty it is to keep a record of such permits.
Repealed
53(8)Repealed: 1989, c.65, s.18
Statement of employer
53(9)Notwithstanding anything contained in this Act every person shall, whenever required by the Commission, and within such reasonable time as it shall prescribe, file with the Commission a statement, verified as provided by subsection (1), showing any one or all of the following items:
(a) the names and addresses of his employees at any specified time or during any specified period;
(b) the nature of his business or undertaking and the duties performed by his employees at any specified time or during any specified period;
(c) such particulars of wages and period of employment as may be specified;
(d) such other particulars pertinent to the purposes of this Act as may be specified.
Offences and penalty respecting statement
53(10)If a person does not comply with requirements of subsection (9) within fifteen days from notice thereof sent by the Commission in the ordinary course of post to him at his latest known address, or if any statement rendered to the Commission pursuant thereto is not a true and accurate statement of any of the matters required to be set forth in it, he is for every such non-compliance and for every such statement liable to a penalty not exceeding five hundred dollars.
R.S., c.255, s.48; 1965, c.48, s.9; 1981, c.80, s.21; 1982, c.67, s.7; 1989, c.65, s.18; 1994, c.70, s.12; 1994, c.95, s.51; 1996, c.79, s.9
Notices by employer
53.1(1)Every person shall, within fifteen days after commencing or recommencing a business or undertaking, notify the Commission of such commencement or recommencement.
Notices by employer
53.1(2)Every person shall, within fifteen days after ceasing or suspending a business or undertaking, notify the Commission of the cessation or suspension, and provide the Commission with a statement of the total amount of wages earned by his employees for that portion of the current year.
Offences and penalties respecting notices
53.1(3)If a person does not comply with subsection (1) or (2), the person is for every non-compliance liable to a penalty not exceeding five hundred dollars.
2001, c.36, s.11
Assessment of employer
54(1)The Commission shall every year assess and levy upon and collect from the employers in each class, by an assessment rated upon the payroll, or otherwise as the Commission may deem proper
(a) sufficient funds to meet all claims for compensation incurred during that year;
(b) the estimated cost of those claims in paragraph (a) payable during subsequent years; and
(c) such sum as the Commission considers appropriate for the administrative expenses of the Commission.
54(1.1)Despite subsection (1), in the event the Commission incurs a deficit in any fiscal year, the Commission shall take the necessary steps following the occurrence of the deficit to assess, levy and collect sufficient funds to fund the deficit within the period of time determined to be reasonable and prudent by the Commission in the circumstances, to a maximum of 15 years.
54(2)Where an employer is a contractor and sublets the whole or part of the work to a subcontractor, the Commission, if it deems proper, may determine the percentage of assessment of each such employer on the price agreed upon for the work done by him, instead of upon his payroll.
R.S., c.255, s.49; 1994, c.70, s.12; 2018, c.18, s.2
Separate accounts for each class
55Separate accounts shall be kept of the amounts collected and expended in respect of every class and of every fund set aside by way of reserve, but for the purpose of paying compensation, funding the future cost of claims in subsequent years as well as the administrative expenses of the Commission, the Accident Fund shall be deemed one and indivisible, except for the funds levied and collected under section 79.2.
R.S., c.255, s.50; 1994, c.70, s.12; 2000, c.49, s.4
Capitalized reserves
56(1)The Commission may, in respect of any industry or class where it is deemed expedient, assess, levy and collect in each year a sufficient amount to provide capitalized reserves that shall be deemed sufficient to meet the periodical payments accruing in future years in respect of all accidents during such year and administrative costs in connection therewith.
56(1.1)Notwithstanding subsection (1), in the event the Commission does not assess, levy and collect a sufficient amount to provide the capitalized reserves referred to therein, the Commission shall in respect of any industry or class within five years of determining the insufficiency of the capitalized reserves assess, levy and collect sufficient funds to meet the insufficiency of the capitalized reserves.
56(2)The Commission may, in addition to the amount actually required in each class for the year, assess and levy upon and collect from any class or classes a surcharge or surcharges to be set aside as a reserve or reserves,
(a) by way of providing a contingent fund in aid of industries or classes which may become depleted or extinguished,
(b) by way of providing a sinking fund for the capitalization of periodical compensation payments payable in future years, or
(c) by way of setting up a reserve fund for the equalizing of assessments.
56(3)Upon any such change being made as provided for in subsection (2) the Commission may make such adjustment and disposition of the funds, reserves and accounts of the classes affected as may be deemed just and expedient.
R.S., c.255, s.51; 1994, c.70, s.12
Classification of industry
57(1)The Commission may establish such sub-classifications, differentials and proportions in the rates as between the different kinds of employment in the same class as may be deemed just; and where any particular industry is shown to be so circumstanced or conducted that the hazard is greater than the average of the class or sub-class to which such industry is assigned, the Commission may impose upon such industry a special rate, differential or assessment, to correspond with the excessive hazard of such industry.
57(2)A system of merit rating may, if deemed proper, be adopted by the Commission.
R.S., c.255, s.52; 1994, c.70, s.12
Scheme of insurance or re-insurance
58Where authorized by the Lieutenant-Governor in Council the Commission may make or sanction any arrangement for the insurance or re-insurance, with an underwriter or underwriters, of any employer or class under this Part, subject to such terms and conditions as the Commission may prescribe, and may make any necessary or equitable adjustment of the assessment of such employer or class, having in view any premium paid on such insurance or re-insurance, but all claims for compensation shall be adjusted and paid by the Commission.
R.S., c.255, s.53; 1994, c.70, s.12
Mode and notice of assessment
59(1)Assessments may be made in such manner and form, at such times, and by such procedure as the Commission deems adequate and expedient, and may be general as applicable to any class or subclass, or special as applicable to any industry or part or department of any industry, or any employer.
59(2)Notice of a general assessment may be in the form prescribed by Order in Council, and shall be published once in The Royal Gazette, and in such newspapers, and in such other manner, as the Commission may deem adequate or expedient.
59(3)The Lieutenant-Governor in Council may prescribe the form of notice of assessment to be used under subsection (2).
R.S., c.255, s.54; 1965, c.48, s.10; 1973, c.74, s.82; 1983, c.7, s.22; 1994, c.70, s.12
To whom notice of assessment given
60The Commission shall give notice to each employer, in such manner as may be deemed by the Commission adequate and proper, of the amount of the assessments due from time to time in respect of his industry or industries, and the time or times when such assessments are due and payable.
R.S., c.255, s.55; 1994, c.70, s.12
Duty of employer to pay assessment
61(1)Notwithstanding any provisions of this Part respecting estimates or payrolls and notice to employers, an employer shall, without demand from the Commission, cause to be paid to the Commission the full amount of every assessment assessed or levied in accordance with this Part in respect to workers in his employ who are entitled to compensation hereunder, and every assessment, whether the employer has notice thereof or otherwise, is a debt unliquidated until the amount thereof is ascertained by adjustment as provided by this Act and payable by the employer to the Commission.
61(2)The Commission has a right of action against an employer in respect of any amount unpaid, with costs of such action.
R.S., c.255, s.56; 1981, c.80, s.3; 1994, c.70, s.12
Provisional levy
62(1)The Commission may levy upon an employer a provisional amount based upon the estimates and information furnished by the employer or upon such further or other information as the Commission may obtain, and that provisional amount shall be presumed to be the amount due by the employer, and may be collected from him as hereinafter provided.
62(2)In case of the refusal or neglect of an employer to furnish an estimate or information as required under section 53, the Commission may make its own estimates of the amount due by him, and may levy and collect such amount.
62(3)Such provisional levies may, wherever it is deemed expedient, be collected in half-yearly, quarterly or monthly instalments, or otherwise, and where it appears that the funds in any class are sufficient for the time being, any instalment in that class may be abated or its collection deferred.
R.S., c.255, s.57; 1994, c.70, s.12
Deficiency in assessment
63Where in a class the estimated assessments prove insufficient, the Commission may make such further assessments and levies as may be necessary, or may temporarily advance the amount of the deficiency out of any reserve provided for such purpose, and may add such amount to any subsequent assessment or assessments.
R.S., c.255, s.58; 1994, c.70, s.12
Temporary industry
64Where an industry, in the opinion of the Commission, is to be carried on only temporarily, the Commission may, instead of collecting a provisional amount, require or take from the employer security in such form and amount as the Commission may deem adequate, until the cessation of the industry and final report and audit of the payroll therefor.
R.S., c.255, s.59; 1994, c.70, s.12
Deficiency in assessment
65Where a deficiency in the amount realized from an assessment in any class is caused by the failure of some of the employers in that class to pay their share of the assessment, or by any disaster or other circumstance that in the opinion of the Commission would unfairly burden the employers in that class, the deficiency or loss may be made up by supplementary assessments upon the employers in all the classes, and the provisions of sections 59 to 62, so far as applicable, shall apply to such assessments.
R.S., c.255, s.60; 1994, c.70, s.12
Special fund
66The Commission where it deems proper may add to the assessment for any class or classes or for all the classes a percentage or sum for the purpose of raising a special fund to be laid aside and used to meet the loss arising from any disaster or other circumstance which in the opinion of the Commission would unfairly burden the employers in any class.
R.S., c.255, s.61; 1994, c.70, s.12
Penalty respecting failure to pay assessment
67Notwithstanding any other Act, any assessment due under this Act shall bear interest on the amount unpaid at the rate prescribed by regulation from the day on which such amount became due until payment, notwithstanding the taking of judgment, and such interest may be collected and enforced as part of such assessment.
R.S., c.255, s.62; 1978, c.61, s.6; 1980, c.56, s.11; 1981, c.80, s.22; 1989, c.65, s.19
Effect of failure to furnish required documents
68(1)An employer who refuses or neglects to furnish any estimate or information as required by section 53, or refuses or neglects to pay any assessment or the provisional amount of any assessment or any instalment or part thereof shall, in addition to any penalty or other liability to which he may be subject, pay to the Commission the full amount or capitalized value, as determined by the Commission, of the compensation payable with respect of any accident to a worker in his employ that happens during the period of such default, and the payment of such amount may be enforced in the same manner as the payment of an assessment may be enforced.
68(2)The Commission, if satisfied that such default was excusable, may relieve the employer in whole or in part, from liability under this section, on such terms as the Commission may deem just.
R.S., c.255, s.63; 1981, c.80, s.3; 1994, c.70, s.12
LIABILITY FOR ASSESSMENTS
Municipality or public service commission
69Where work within the scope of this Part is performed under contract for a municipal corporation or public service commission, an assessment in respect of such work may be paid by such corporation or commission, as the case may be, and the amount of such assessment may be deducted from any money due the contractor in respect of such work.
R.S., c.255, s.64
Liability of contractor, sub-contractor and principal
70(1)Where work within the scope of this Part is undertaken for any person by a contractor, both the contractor and the person for whom such work is undertaken shall be liable for the amount of any assessment in respect thereof, and the assessment may be levied upon and collected from either of them or partly from one and partly from the other, but in the absence of any term in the contract to the contrary the contractor is, as between himself and the person for whom such work is performed, primarily liable for the amount of such assessment.
70(2)Where work within the scope of this Part is performed under sub-contract, both the contractor and the sub-contractor are liable for the amount of any assessments in respect of the work, and such assessments may be levied upon and collected from either, or partly from one and partly from the other, but in the absence of any term in the sub-contract to the contrary the sub-contractor is as between himself and the contractor primarily liable for such assessments.
70(3)Where a contractor or sub-contractor is not assessed with respect to the work carried on by him as contractor or sub-contractor, the Commission may consider the workers of the contractor or sub-contractor, if any, and the contractor or sub-contractor to be workers of the principal with respect to an industry within the scope of this Part, but in the absence of any term in the contract or sub-contract to the contrary, the principal is entitled to recover from the contractor the amount or apportionate amount of any assessment paid by the principal with respect to the contractor or sub-contractor or their workers, and the contractor is entitled to recover from the sub-contractor the amount or apportionate amount of any assessment paid by the contractor with respect to the sub-contractor or his workers.
R.S., c.255, s.65; 1981, c.80, s.3; 2002, c.41, s.1
Enforcement of mechanics’ lien
71Where any work or service is performed by an employer in an industry within the scope of this Part, for which the employer would be entitled to a lien under the Mechanics’ Lien Act, it is the duty of the owner as defined by that Act, to see that the amount of any assessment in respect of such work or service is paid, and if the owner fails to do so he is personally liable to pay it to the Commission, and the Commission has the like powers and is entitled to the like remedies for enforcing payment as it possesses or is entitled to in respect of an assessment.
R.S., c.255, s.66; 1994, c.70, s.12
Distribution in case of death or wind-up, assessment and other amounts to be fixed charge
72(1)There shall be included among the debts which under the Winding-up Act and the Devolution of Estates Act, are, in the distribution of the property in the case of death or in the distribution of the assets of a company being wound up under those Acts respectively, to be paid in priority to all other debts, the amount of any assessment the liability whereof accrued before the date of the death, or before the date of the commencement of the winding-up, and those Acts shall have effect accordingly.
72(2)Notwithstanding any other Act, any amount due to the Commission by an employer
(a) pursuant to an assessment made under this Act,
(b) in respect of any amount that the employer is required to pay to the Commission under this Act, or
(c) on any judgment for an amount referred to in paragraph (a) or (b),
creates a fixed, specific and continuing charge in favour of the Commission
(d) on the property or proceeds of property, whether real or personal, of the employer in New Brunswick, including money payable to, for or on account of the employer, whether the property, proceeds or money is acquired or is to be acquired by the employer before or after the amount becomes due, and
(e) on any property or proceeds of property, whether real or personal, in New Brunswick that is used by the employer in or in connection with, or produced by the employer in, the industry with respect to which the employer is assessed or the amount becomes due, whether the property is used or produced before or after the amount becomes due.
72(2.1)Subject to the Employment Standards Act, the Revenue Administration Act and the Real Property Tax Act, the charge created under subsection (2) is payable in priority over all writs, judgments, debts, liens, charges, security interests as defined in the Personal Property Security Act, rights of distress, assignments, including assignments of book debts, and other claims or encumbrances of whatever kind of any person, including the Crown, whether legal or equitable in nature, whether absolute or not, whether specific or floating, whether crystallized or otherwise perfected or not and whenever created or to be created.
72(3)Repealed: 2001, c.36, s.12
72(4)Notwithstanding subsection (2), where a charge, attaches to property produced in or by the industry with respect to which the employer is assessed it shall be extinguished upon the bona fide sale of such property made in the ordinary course of business.
72(5)Repealed: 2001, c.36, s.12
R.S., c.255, s.67; 1965, c.48, s.11; 1975, c.92, s.8; 1982, c.67, s.9; 1985, c.4, s.70; 1994, c.70, s.12; 2001, c.36, s.12; 2005, c.13, s.10; 2015, c.22, s.10
Assignment of book debts void
72.1When an employer in an industry to which this Act applies defaults in the payment of all or part of a contribution owing pursuant to an assessment, or all or part of the money due to the Commission under this Act, any assignment of personal property made by the employer, including an assignment of book debts, is void as against the Commission to the extent of money that has not at the time of default been paid under the assignment to or on behalf of the assignor, regardless of
(a) whether the assignment is absolute or not, or
(b) whether the assignment is made before or after the date the contribution or other money became due or the default occurs.
2001, c.36, s.13
Security interests void
72.2When an employer in an industry to which this Act applies defaults in the payment of
(a) all or part of a contribution owing pursuant to an assessment, or
(b) all or part of any money due to the Commission under this Act,
any security interest as defined in the Personal Property Security Act created by the employer
(c) on the employer’s personal property in New Brunswick, or
(d) on any other personal property in New Brunswick that is used by the employer in or in connection with, or produced by the employer in the industry with respect to which the employer is assessed or the money becomes due,
is void as against the Commission to the extent of money that has not, at the time of default, been paid under the security interest to the holder of it, regardless of whether the security interest is created before or after the date the contribution or other money becomes due or the default occurs.
2001, c.36, s.13
Liability on bulk sales
72.3(1)In the case of a sale of an industry to which this Act applies or the stock or equipment in bulk used in connection with that industry, the purchaser shall demand of the vendor and the vendor shall deliver to the purchaser, before the purchaser pays any of the purchase price for the industry, stock or equipment, a certificate from the Commission stating that it has no claim against the vendor of the industry, stock or equipment.
72.3(2)If the vendor fails to provide the certificate, the purchaser is liable to the Commission for an amount equal to the amount due from the vendor to the Commission, up to an amount equal to the fair market value of the industry, stock or equipment.
2001, c.36, s.13
Action for recovery of assessment
73(1)When the employer defaults in the payment of an assessment or any part thereof, or when it is provided by any other section of this Part that an amount or payment may be recovered or enforced in the same manner as an assessment, the Commission may issue a certificate stating that the assessment was made or the matter with respect to which the amount is due or payable, the amount remaining unpaid on account thereof and the person by whom it was payable and such certificate or a copy of it, certified by the President and Chief Executive Officer of the Commission to be a true copy thereof, may be filed in The Court of Queen’s Bench of New Brunswick and when so filed and sealed with the seal of such court shall become an order of that court upon which judgment may be entered against such person for the amount mentioned in the certificate, together with the fees of the clerk or agent allowable in the case of a default judgment and such judgment may be enforced by execution or otherwise as any other judgment of the court.
73(2)The property upon which a charge has attached under section 72, though not owned by the employer, shall, for the purpose of enforcing the judgment, be deemed to be the property of the employer.
R.S., c.255, s.68; 1975, c.92, s.9; 1979, c.41, s.131; 1980, c.32, s.44; 1982, c.67, s.10; 1994, c.70, s.12; 2001, c.36, s.14
Annual adjustment of assessment
74On or before the first day of April in each year, or so soon thereafter as the Commission may deem expedient, the amount of the assessment for the previous calendar year shall be adjusted upon the actual requirements of the class and upon the correctly ascertained payroll of each industry, or otherwise as the case may require, and the employer shall forthwith make up and pay to the Commission any deficiency, or the Commission shall refund to the employer any surplus, or credit the same upon the succeeding assessment.
R.S., c.255, s.69; 1994, c.70, s.12
Verified payroll, computation of payroll
75(1)An employer shall, at or after the close of each calendar year, or at such other times as may be required by the Commission, furnish verified copies or reports of his payrolls, together with such other information as the Commission may require, verified by statutory declaration, for the purpose of enabling the Commission to adjust and compute the amount of the assessment as provided in section 74.
75(2)In computing and adjusting the amount of the payroll of any industry, regard shall be had only to such portion of the payroll as represents workers and work within the scope of this Part and where the yearly earnings of any worker exceeds the maximum annual earnings in effect under subsection 38.1(3) the excess shall be deducted from the amount of the payroll and the assessments shall be based on the amount of the payroll as so reduced.
R.S., c.255, s.70; 1957, c.68, s.7; 1968, c.91, s.7; 1971, c.77, s.4; 1973, c.65, s.11; 1974, c.49 (Supp.), s.4; 1975, c.92, s.10; 1978, c.61, s.7; 1980, c.56, s.12; 1981, c.80, s.23; 1994, c.70, s.12
Change of ownership in industry
76When in an industry a change of ownership or employership has occurred, the Commission may levy any part of such deficiency on either or any of such successive owners or employers, or pay or credit to any one or more of such owners or employers such surplus as the case may require, but as between or amongst such successive owners or employers the assessment in respect of such industry shall, in the absence of an agreement between the respective owners or employers determining the same, be apportionable, as nearly as may be, in accordance with the proportions of the payrolls of the respective periods of ownership or employment.
R.S., c.255, s.71; 1965, c.48, s.12; 1994, c.70, s.12
Examination of books and accounts
77(1)A member or officer of the Commission or person authorized by the Commission for that purpose has the right to examine the books and accounts of an employer and to make such other inquiry as the Commission may deem necessary for the purpose of ascertaining whether any statement furnished to the Commission under the provisions of section 75 is an accurate statement of the matters required to be stated therein or of ascertaining the amount of the payroll of any employer, or of ascertaining whether any industry or person is within the scope of this Part.
77(2)A member or officer of the Commission or person authorized by it to make examination or inquiry under this section shall have power and authority to require and to take affidavits, affirmations or declarations as to any matter of such examination or inquiry, and to take statutory declarations required under section 75, and in all cases to administer oaths, affirmations and declarations and certify to the same having been made.
R.S., c.255, s.72; 1994, c.70, s.12
Powers of entry of Commission
78(1)A member or officer of the Commission or any person authorized by it for that purpose has the right at all reasonable hours to enter into the establishment of any employer and the premises connected with it and every part of them, for the purpose of ascertaining whether the ways, works, machinery or appliances therein are safe, adequate and sufficient, and whether all proper precautions are taken for the prevention of accidents to the workers employed in or about the establishment or premises, and whether the safety appliances or safeguards prescribed by law are used and employed therein, or for any other purpose that the Commission may deem necessary for the purpose of determining the amount of the assessment of such employer.
78(2)Repealed: 1982, c.67, s.11
R.S., c.255, s.73; 1958, c.59, s.6; 1981, c.80, s.3, 24; 1982, c.67, s.11; 1994, c.70, s.12
Repealed
79Repealed: 1989, c.65, s.20
R.S., c.255, s.74; 1989, c.65, s.20
Repealed
79.1Repealed: 1981, c.80, s.25
1975, c.92, s.11; 1981, c.80, s.25
SAFETY ASSOCIATIONS
2000, c.49, s.5
Designation and funding of safety association
79.2(1)One or more employer associations that are engaged in an industry to which this Act applies may request the Commission to designate an entity as a safety association for their industry and to provide financial assistance to that safety association.
79.2(2)An employer association that makes a request to the Commission under subsection (1) shall satisfy the Commission
(a) that a majority of the employers in the industry, as prescribed by regulation, supports the funding of the safety association through an additional levy on employers in the industry,
(b) that a primary objective and purpose of the safety association is the promotion of education and training in accident prevention in the industry in which the employers are engaged,
(c) that the safety association sufficiently represents the interests of employers, employer associations and workers in that industry in New Brunswick, and
(d) that the entity to be designated has been or will be incorporated before any financial assistance is provided by the Commission.
79.2(3)Where the Commission is satisfied that the requirements under subsection (2) have been met and that the majority of employers referred to in paragraph (2)(a) represents the minimum percentage of the total payroll subject to assessment in the industry, as prescribed by regulation, the Commission may designate an entity as a safety association and may provide financial assistance to the safety association for such time and in such amount as the Commission considers appropriate.
79.2(4)Where the Commission provides financial assistance to a safety association, the Commission may, from time to time, require the employer association or associations who requested the designation to satisfy the Commission that the requirements under paragraphs (2)(a) to (c) continue to be met, and may revoke the designation of the safety association if not so satisfied.
79.2(5)Financial assistance provided under subsection (3) shall be used for the purpose of assisting in the payment of expenses of the safety association related to the promotion of education and training in accident prevention in the industry.
79.2(6)The Commission may make the financial assistance subject to any terms and conditions it considers appropriate, including, without limitation, terms and conditions respecting the use of funds, reporting and the return of unused or misused funds.
79.2(7)Any money paid by the Commission under this section shall be levied against all employers in the industry represented by the safety association, and shall be calculated as a percentage of the individual assessment against each employer in the industry represented by the safety association, as imposed under section 54.
79.2(8)Money collected by the Commission under this section shall be accounted for separately in the Accident Fund, and the administrative expenses incurred by the Commission in collecting and distributing the levy shall be deducted from the money collected.
79.2(9)Sections 61, 67, 70, 72 and 73 apply with the necessary modifications to a levy under this section.
2000, c.49, s.5
Operation of safety association
79.3(1)A safety association that receives financial assistance from the Commission shall operate in accordance with this section and the regulations.
79.3(2)The Commission shall monitor the operation of a safety association that receives financial assistance from the Commission and may conduct such audits as it considers necessary.
79.3(3)The Commission may direct a safety association that receives financial assistance from the Commission to take such actions as the Commission considers appropriate, and the governing body of the association shall comply with the direction.
79.3(4)If a safety association does not operate in accordance with section 79.2, this section and the regulations, or comply with the terms and conditions set by the Commission, the Commission may
(a) suspend or reduce its financial assistance while the non-compliance continues,
(b) cease to provide financial assistance, or
(c) take such other steps as it considers appropriate.
2000, c.49, s.5
Regulations
79.4The Lieutenant-Governor in Council may make regulations
(a) respecting the information to be provided to the Commission by an employer association that makes a request under section 79.2,
(b) prescribing a majority for the purposes of paragraph 79.2(2)(a),
(c) prescribing the minimum percentage of total payroll subject to assessment in the industry for the purposes of subsection 79.2(3),
(d) respecting applications by a safety association for financial assistance,
(e) respecting conditions that must be met before a safety association receives financial assistance,
(f) respecting the information and plans to be provided to the Commission by a safety association that applies for financial assistance,
(g) respecting the terms and conditions on which financial assistance may be given to a safety association, and
(h) respecting reports to be provided by a safety association that receives financial assistance.
2000, c.49, s.5
INVESTMENT OF FUNDS
Repealed
80Repealed: 1994, c.70, s.12
R.S., c.255, s.75; 1965, c.48, s.13; 1987, c.64, s.11; 1994, c.70, s.12
REGULATIONS
Regulations
81The Lieutenant-Governor in Council may make regulations
(a) prescribing penalties for the violation of any of the provisions of this Part, or for the breach of any rule, regulation or order made under the authority of this Act,
(b) Repealed: 1982, c.67, s.12
(c) Repealed: 1994, c.70, s.12
(d) prescribing a rating schedule for the purposes of calculating an award for a permanent physical impairment under subsection 38.11(17) or 38.2(8),
(d.1) prescribing a rate of interest for purposes of section 67,
(e) providing for the management of the Pension Fund and regarding options available to workers and surviving spouses under the pension plans, and
(e.1) Repealed: 1994, c.70, s.12
(e.2) Repealed: 1994, c.70, s.12
(f) for the due administration and carrying out of the provisions of this Act.
R.S., c.255, s.76; 1981, c.80, s.26; 1982, c.67, s.12; 1987, c.64, s.12; 1992, c.34, s.18; 1994, c.70, s.12; 1998, c.4, s.16
Repealed
81.1Repealed: 1994, c.70, s.12
1981, c.80, s.27; 1987, c.64, s.13; 1989, c.65, s.21; 1994, c.70, s.12
PENALTIES
Penalties
82The penalties imposed by or under the authority of this Part shall be recoverable under the Provincial Offences Procedure Act or by an action brought by the Commission in any court of competent jurisdiction, and when collected shall be paid over to the Commission and shall form part of the Accident Fund.
R.S., c.255, s.77; 1994, c.70, s.12
WORKER’S AND
EMPLOYER’S ADVOCATES
1994, c.70, s.12
Repealed
83Repealed: 1994, c.70, s.12
R.S., c.255, s.78; 1968, c.91, s.8; 1978, c.61, s.8; 1980, c.56, s.13; 1981, c.80, s.28; 1989, c.65, s.22; 1994, c.70, s.12
Workers’ Advocate
83.1(1)The Lieutenant-Governor in Council may appoint one or more persons employed within the Department of Post-Secondary Education, Training and Labour as a Worker’s Advocate, to assist any worker, or any dependent of a worker, in respect of any claim being advanced by him or her for compensation.
83.1(2)A Worker’s Advocate may examine all files, records and other material of the Commission that relate to the injury or death in respect of which the claim is made.
83.1(3)The Commission shall make an annual grant to the Department of Post-Secondary Education, Training and Labour equal to the cost, including salaries and administration, of providing the services of Worker’s Advocates under this section.
1980, c.56, s.14; 1981, c.80, s.3; 1983, c.30, s.30; 1985, c.4, s.70; 1986, c.8, s.133; 1992, c.2, s.61; 1994, c.70, s.12; 1998, c.41, s.108; 2000, c.26, s.286; 2006, c.16, s.180; 2007, c.10, s.92
Employer’s Advocate
83.2(1)The Lieutenant-Governor in Council may appoint one or more persons employed with the Department of Post-Secondary Education, Training and Labour as an Employer’s Advocate, to assist any employer in respect to any claim being advanced for compensation by a worker employed by the employer, or by a dependent of that worker, and any related concerns of the employer in respect of assessments, charges and similar matters.
83.2(2)An Employer’s Advocate may examine all files, records, and other material of the Commission that relate to that employer or the injury or death in respect of which the claim is made.
83.2(3)The Commission shall make an annual grant to the Department of Post-Secondary Education, Training and Labour equal to the cost, including salaries and administration, of providing the services of Employer’s Advocates under this section.
1989, c.65, s.23; 1992, c.2, s.61; 1994, c.70, s.12; 1998, c.41, s.108; 2000, c.26, s.286; 2006, c.16, s.180; 2007, c.10, s.92
ADVISORY COMMITTEE
Repealed: 1987, c.64, s.15
Repealed
84Repealed: 1987, c.64, s.16
1973, c.65, s.12; 1980, c.56, s.15; 1981, c.80, s.3; 1983, c.30, s.30; 1985, c.38, s.10; 1986, c.8, s.133; 1987, c.64, s.16
OCCUPATIONAL DISEASES
1989, c.65, s.24
Occupational diseases
85(1)Where a worker suffers from an occupational disease and is thereby disabled or his death is caused by an occupational disease and the disease is due to the nature of any employment in which he was engaged, whether under one or more employments, the worker is or his dependents are entitled to compensation as if the disease was a personal injury by accident and the disablement was the happening of the accident, unless at the time of entering into the employment he wilfully and falsely represented himself in writing as not having previously suffered from the disease.
85(1.1)Where a disablement is caused by occupational disease, the date of the accident shall be deemed to be the date of the disablement.
85(2)Where the Commission is not satisfied that the occupational disease is due to employment within the Province, no compensation shall be payable under this section.
85(3)Nothing in this section shall affect the right of a worker to compensation in respect of a disease to which this section does not apply, if the disease is the result of an injury in respect of which he is entitled to compensation under this Part.
85(4)The Commission may from time to time by order in writing require any worker in any employment to undergo medical examination for the purpose of determining whether such worker is affected with an occupational disease, or, if so affected, the progress of such disease.
85(5)Whenever any worker required under authority of this section to undergo medical examination fails or refuses so to do, the employer of such worker shall not continue or maintain such worker in his employ until such worker has undergone the medical examination so required.
85(6)An employer who violates the provisions of subsection (5) is guilty of an offence and liable to a fine not exceeding fifty dollars.
85(7)The Commission may by action recover from the employer of a worker all or any portion of costs incurred for or in connection with a medical examination of such worker under authority of this section.
R.S., c.255, s.79; 1980, c.56, s.16; 1981, c.80, s.3; 1989, c.65, s.25; 1992, c.34, s.19; 1994, c.70, s.12
Application of Part II
86This Part applies to industries to which Part I does not apply, but not to farm labourers, domestic or menial servants, or their employers or fishermen.
R.S., c.255, s.80; 1981, c.80, s.3
Compensation under Part II, liability under Part II
87(1)When personal injury is caused to a worker by reason of any defect in the condition or arrangement of the ways, works, machinery, plant, buildings or premises connected with, intended for or used in the business of his employer or by reason of the negligence of his employer or any person in the service of his employer acting within the scope of his employment, the worker, or if the injury results in death, the legal personal representative of the worker, and any person entitled in case of death have a right of action against the employer, and if the action is brought by the worker he is entitled to recover from the employer the damages he sustained by or in consequence of the injury, and if the action is brought by the legal personal representative of the worker or by or on behalf of persons entitled to damages under the Fatal Accidents Act, they are entitled to recover such damages as they are entitled to under that Act.
87(2)Where the execution of any work is being carried into effect under a contract, and the person for whom the work is done owns or supplies any ways, works, machinery, plant, building or premises, and by reason of any defect in the condition or arrangement of them personal injury is caused to a worker employed by the contractor or by a sub-contractor, and the defect arose from the negligence of the person for whom the work or any part of it is done or of some person in his service and acting within the scope of his employment, the person for whom the work or that part of the work is done is liable to the action as if the workers had been employed by him, and for that purpose shall be deemed to be the employer of the worker within the meaning of this Act but any such contractor or sub-contractor is liable to the action as if this subsection had not been enacted, but not so that double damages are recoverable for the same injury.
87(3)Nothing in subsection (2) affects any right or liability of the person for whom the work is done and the contractor or sub-contractor as between themselves.
87(4)A worker shall not by reason only of his continuing in the employment of the employer with knowledge of the defect or negligence that caused his injury be deemed to have voluntarily incurred the risk of injury.
R.S., c.255, s.81; 1981, c.80, s.3
Effect of contributory negligence under Part II
88(1)A worker shall be deemed not to have undertaken the risks due to the negligence of his fellow workers, and contributory negligence on the part of a worker shall not hereafter be a bar to recovery by him or by any person entitled to damages under the Fatal Accidents Act, in an action for the recovery of damages for an injury sustained by, or causing the death of the worker while in the service of his employer, for which the employer would otherwise have been liable.
88(2)Contributory negligence on the part of the worker shall be taken into account in assessing the damages in any such action.
88(3)In actions tried by a judge with a jury, the jury shall assess the damages sustained and the deduction to be made therefrom because of contributory negligence, separately.
88(4)The Court of Appeal may review such deduction upon the evidence, drawing such inferences therefrom as a judge sitting without a jury might do, and increase or decrease the amount of such deduction.
R.S., c.255, s.82; 1981, c.80, s.3
N.B. Section 37, paragraphs 38 (1)(a), (b), (c), (d) and subsections 38(4) and 75(2) come into force on January 1, 1975.
N.B. This Act is consolidated to December 12, 2018.