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:

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