BILL 21

An Act to Amend the Workers' Compensation Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1Section 1 of the Workers' Compensation Act, chapter W-13 of the Revised Statutes, 1973, is amended

(a)by repealing the definition "average earnings" and substituting the following:

"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;

(b)by adding after the definition "employer" the following:

"Employment Insurance Act" means the Employment Insurance Act, chapter 23 of the Statutes of Canada, 1996, and any regulations under that Act;

(c)in the definition "Pension Fund" by striking out "section 38.7" and substituting "sections 38.22, 38.54 and 38.7";

(d)by repealing the definition "Unemployment Insurance Act".

2Subsection 5(1) of the Act is amended by striking out the period at the end of the subsection and substituting a comma followed by "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.".

3Subsection 8(1) of the Act is amended by striking out "subsection 38.10(5)" and substituting "subsection 38.91(5)".

4Subsection 38.1(1) of the Act is amended

(a)in the portion preceding the definition "average earnings" by striking out "38.2, 38.5, 38.6 and 38.8" and substituting "38.11, 38.2, 38.5, 38.51, 38.52, 38.53, 38.6 and 38.8";

(b)in the definition "average net earnings" by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(c)in paragraph (b) of the definition "loss of earnings" by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(d)in the definition "pre-accident net earnings" by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act".

5The Act is amended by adding after section 38.1 the following:

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(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) or (8).

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(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(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 pursuant to this section is payable until the loss of earnings ceases or until the worker attains age sixty-five, whichever occurs first.

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.

6Section 38.2 of the Act is amended

(a)in subsection (1.1) by adding "but before January 1, 1998," after "January 1, 1993,";

(b)in subsection (2) of the English version by striking out "Board" and substituting "Commission";

(c)in subsection (2.2) of the English version by striking out "Board" and substituting "Commission";

(d)in subsection (4)

(i)in paragraph (a) by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(ii)in paragraph (b) by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(e)in subsection (4.3) by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

7Section 38.21 of the Act is amended

(a)by renumbering the section as subsection (1);

(b)by adding after subsection (1) the following:

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.

8The Act is amended by adding after section 38.21 the following:

PENSION BENEFITS

38.22(1)Where compensation is paid to a worker under section 38.11 for a period exceeding twenty-four consecutive months, the Commission shall, beginning in the twenty-fifth month, set aside an amount equal to five per cent of the compensation paid from that date and that amount together with accrued interest shall be used to provide a pension for the worker at age sixty-five.

38.22(2)Subject to subsections (4), (5) and (6), where 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 equal to five per cent of the compensation paid from the twenty-fifth month onwards and that amount together with accrued interest shall be used to provide a pension for the worker at age sixty-five.

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 interest set aside 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 interest had been paid in accordance with subsection (9).

38.22(9)Interest shall be assumed to have been paid quarterly on the amount credited to each worker's account in the Pension Fund and the rate of interest payable 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 interest.

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 accrued interest, 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.

9The Act is amended by adding after the heading "SURVIVORS' BENEFITS" the following:

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.

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

(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

(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 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.

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 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.

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 accrued interest 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 accrued interest 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 interest 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 accrued interest, 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.

10Section 38.6 of the Act is amended

(a)by repealing subsection (1) and substituting the following:

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.

(b)in paragraph (3)(b) by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(c)in paragraph (4)(b) by striking out "Unemployment Insurance Act" and substituting "Employment Insurance Act";

(d)by repealing subsection (7);

(e)by repealing subsection (8);

(f)in subsection (9) by striking out "subsections (6) and (8)" and substituting "subsection (6)";

(g)in subsection (10) by striking out "or (8)";

(h)in subsection (12) by striking out "subsection (6), (8) or (11)" and substituting "subsection (6) or (11)".

11Section 38.8 of the Act is amended

(a)by repealing subsection (7);

(b)by repealing subsection (8).

12The Act is amended by adding after section 38.8 the following:

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 interest had been paid in accordance with subsection (11).

38.81(11)Interest shall be assumed to have been paid quarterly on the amount credited to a spouse's account in the Pension Fund and the rate of interest payable shall be the average yield rate of the investment portfolio of the Pension Fund during each quarter.

38.81(12)No interest, other than interest payable under subsection (10), is payable by the Commission with respect to any other benefit that is reinstated pursuant to this section

13Section 38.10 of the Act is amended

(a)by renumbering the section as section 38.91;

(b)in subsection (1) by striking out "section 38.2" and substituting "section 38.11 or 38.2";

(c)in subsection (1.01) by striking out "section 38.2" and substituting "section 38.11 or 38.2";

(d)in subsection (1.1) by striking out "section 38.6" and substituting "section 38.51, 38.52, 38.53 or 38.6";

(e)in subsection (3) by striking out "sections 38.6 and 38.8" and substituting "sections 38.51, 38.52, 38.53, 38.6 and 38.8".

14Section 42 of the Act is amended by striking out "sections 38.1 to 38.10, section 38.21" and substituting "sections 38.1 to 38.91".

15Section 48 of the Act is amended

(a)in subsection (1) by striking out "section 38.2" and substituting "section 38.11 or 38.2".

(b)in subsection (5) by adding "but before the coming into force of section 38.11" after "the coming into force of section 38.2";

(c)by adding after subsection (5) the following:

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.

(d)by adding after subsection (5.1) the following:

48(5.2)Section 38.81 applies with the necessary modifications to a spouse referred to in subsection (5.1).

16Section 81 of the Act is amended

(a)in paragraph (d) by striking out "subsection 38.2(8)" and substituting "subsection 38.11(17) or 38.2(8)";

(b)by repealing paragraph (e) and substituting the following:

(e)providing for the management of the Pension Fund and regarding options available to workers and surviving spouses under the pension plans, and

17This Act shall be deemed to have come into force on January 1, 1998.

EXPLANATORY NOTES

Section 1

(a)The existing provision is as follows:

"average earnings" when used in reference to the time of or before the injury, means the average earnings calculated in accordance with section 37, 38.1, 38.2, 38.6 or 48, as the case may be;

(b)A definition is added.

(c)The existing provision is as follows:

"Pension Fund" means the fund provided for the payment of pensions in accordance with section 38.7;

(d)A definition is repealed.

Section 2

The existing provision is as follows:

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.

Section 3

This amendment is consequential on the amendment made in paragraph 13(a) of this amending Act.

Section 4

(a)This amendment is consequential on the amendments made in sections 5 and 9 of this amending Act.

(b), (c) and (d)These amendments are consequential on the amendments made in paragraphs 1 (b) and (d) of this amending Act.

Section 5

Compensation provisions are enacted in respect of workers who are injured or suffer a recurrence of an injury on or after January 1, 1998.

Section 6

(a)This amendment is consequential on the amendment made in section 5 of this amending Act.

(b), (c)An incorrect reference is corrected.

(d), (e)These amendments are consequential on the amendments made in paragraphs 1(b) and (d) of this amending Act.

Section 7

This amendment is consequential on the amendment made in section 8 of this amending Act.

Section 8

Pension benefits are enacted for certain workers.

Section 9

Benefits provisions are enacted for surviving dependents of workers who die on or after January 1, 1998.

Section 10

(a)The existing provision is as follows:

38.6(1)Where 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, benefits shall be payable to his dependents as set out in this section.

(b), (c)These amendments are consequential on the amendments made in paragraphs 1(b) and (d) of this amending Act.

(d)The existing provision is as follows:

38.6(7)Where a dependent surviving spouse remarries or, although not married, is cohabiting in a conjugal relationship with another person who has a legal obligation to support the spouse, the benefits paid to the spouse pursuant to subsection (2) shall cease but the spouse shall be entitled to a lump sum payment equal to one year's benefit based on the last payment under subsection (2).

(e)The existing provision is as follows:

38.6(8)In any case within subsection (7), where the surviving spouse continues to have the care of a surviving dependent child of the worker, benefits shall be payable to the spouse for the benefit of the child in an amount equal to the benefits payable under paragraphs (6)(a) to (d).

(f)This amendment is consequential on the amendment made in paragraph 10(e) of this amending Act.

(g)This amendment is consequential on the amendment made in paragraph 10(e) of this amending Act.

(h)This amendment is consequential on the amendment made in paragraph 10(e) of this amending Act.

Section 11

(a)The existing provision is as follows:

38.8(7)Where a dependent surviving spouse remarries or, although not married, is cohabiting in a conjugal relationship with another person who has a legal obligation to support the spouse, the benefits paid to the spouse pursuant to subsection (2) shall cease but the spouse shall be entitled to a lump sum payment equal to one year's benefit based on the last payment under subsection (2).

(b)The existing provision is as follows:

38.8(8)In any case within subsection (7), where the surviving spouse continues to have the care of one or more surviving dependent child of the worker, benefits shall be payable to the spouse for the benefit of the child pursuant to subsection (3).

Section 12

Under the new section 38.81, a spouse who lost benefits under section 38.6 or 38.8 as a result of the operation of subsection 38.6(7) or 38.8(8) before its repeal may apply on or before January 1, 2001, to have benefits reinstated under those sections and the Commission may reinstate the spouse. Pension benefits under section 38.7 are also reinstated where applicable.

Section 13

(a)Section 38.10 is renumbered as section 38.91.

(b)This amendment is consequential on the amendment made in section 5 of this amending Act.

(c)This amendment is consequential on the amendment made in section 5 of this amending Act.

(d)This amendment is consequential on the amendment made in section 9 of this amending Act.

(e)This amendment is consequential on the amendment made in section 9 of this amending Act.

Section 14

This amendment is consequential on the amendment made in paragraph 13(a) of this amending Act.

Section 15

(a)This amendment is consequential on the amendment made in section 5 of this amending Act.

(b)This amendment is consequential on the amendment made in section 5 of this amending Act.

(c)This amendment is consequential on the amendment made in section 5 of this amending Act.

Section 16

(a)This amendment is consequential on the amendment made in section 5 of this amending Act.

(b)The existing provision is as follows:

81The Lieutenant-Governor in Council may make regulations ...

(e)providing for the management of the Pension Fund and regarding options available to surviving spouses of workers under the pension plan, and

Section 17

Commencement provision

Chapter Outline Update

Section 1

(a)No change required.

(b)Add after the definition "employer - employeur" the following:

Employment Insurance Act - Loi sur l'assurance-emploi

(c)No change required.

(d)Strike out Unemployment Insurance Act - Loi sur l'assurance-chomage

Sections 2 and 3

No changes required.

Section 4

Strike out section 38.1 and substitute the following:

Definitions for various sections 38.1

Section 5

Strike out section 38.2 and substitute the following:

Computation of compensation 38.11, 38.2

Sections 6 and 7

No changes required.

Section 8

Add after section 38.21 the following:

PENSION BENEFITS

Pension benefits 38.22

Section 9

Strike out

Computation of benefits 38.6, 38.8

and substitute the following:

Computation of benefits 38.5 -38.53, 38.6, 38.8

Strike out section 38.7 and substitute the following:

Pension benefits 38.54, 38.7

Sections 10 and 11

No change required.

Section 12

Add after section 38.8 the following:


Reinstatement of benefits under section 38.6 or 38.8 38.81

Section 13

Strike out section 38.10 and substitute the following:

Payment of compensation or benefits 38.91

Sections 14 to 17

No changes required

Endorse: Hon. Roly McIntyre


Last Modified: 11:08am , December 22, 1997