Eligibility

If a worker is injured or dies due to an accident that happened during their employment in an industry covered by this law, compensation will be paid to the worker or their dependents unless the accident was intentionally caused by the worker, or it was mainly caused by their intoxication or serious misconduct, and it did not result in the worker's death or serious and permanent disability.

• When it is unclear whether the accident happened during employment, it is presumed that it did unless there is evidence to the contrary.

• Similarly, when it is unclear whether the accident arose out of employment, it is presumed that it did unless there is evidence to the contrary.

If there is evidence that the accident did not arise out of or in the course of employment, the Commission (the governing body) will consider all the evidence and decide based on the greater weight of evidence whether the accident arose out of or in the course of employment.

Scale of compensation

The scale of compensation for a worker's injury is determined based on their average earnings and earning capacity.

Average earnings and earning capacity are calculated based on the worker's daily, weekly, monthly, or regular pay at the time of the injury or the pay they were receiving previously.

The Commission, which is responsible for determining compensation, chooses the method of calculation that best reflects the actual loss of earnings suffered by the worker due to the injury.

If the worker is under 21 years old at the time of the accident and it is likely that their wages would have increased under normal conditions, that potential increase is taken into account in determining their average earnings or earning capacity.

Note: The compensation amount should not exceed the New Brunswick Industrial Aggregate Earnings per year, which sets a maximum limit on the compensation based on the overall average earnings in the industrial sector.

Loss of earning

If the injury causes a loss of earnings beyond the day of the injury, the Commission estimates the loss and pays the worker compensation equal to 85% of the estimated loss of earnings.

If a worker hasn't received any remuneration or income replacement benefits from the employer or any other employment-related source for the injury, they will receive compensation. However, the total compensation combined with any remuneration or benefits received should not exceed 85% of the worker's pre-accident net earnings for the same period.

• Compensation for loss of earnings is reviewed each year on the anniversary of the injury or recurrence of the injury. It's adjusted based on the worker's average earnings, the annual percentage increase in the New Brunswick Industrial Aggregate Earnings, and the estimated earnings the worker is capable of earning in a suitable occupation while accounting for taxes and contributions.

Loss of earning compensation is payable until the earliest of the following events:

• the loss of earnings from the injury ceases,

• the worker turns 65,

  • If a worker is 63 years or older at the start of the loss of earnings due to the injury, the compensation is provided for a maximum of two years.

• a personal intervening condition unrelated to the injury becomes the dominant cause of the worker's inability to work or participate in rehabilitation, or

• any circumstance unrelated to the injury becomes the dominant cause of the worker's inability to work or participate in rehabilitation.

In recognition of the loss of opportunity, a worker may receive a lump sum award for a permanent physical impairment resulting from the injury. The amount is calculated based on a rating schedule and ranges from a minimum of $500 to the maximum annual earnings.

Extra-provincial injury

If a worker is performing work that is partly in this province and partly in another province or country, it is considered that the work was done in this province. The worker is entitled to compensation under this law, and the employer must include the worker in their payroll submitted to the Commission. If the employer fails to include the worker in the payroll, they are individually responsible for compensating the injured worker, unless it can be shown that the worker is entitled to compensation under the laws of the other province or country.

Injury worsening pre-existing injury

If a personal injury caused by an accident worsens a pre-existing disease or condition, compensation will be paid for the portion of the injury caused by the accident, not for the natural progression of the pre-existing condition. The compensation for the aggravation of the pre-existing condition will be covered by the designated fund.

Post-traumatic stress disorder

If an emergency response worker is diagnosed with PTSD by a psychiatrist or psychologist, it is presumed that the PTSD arose from their employment in response to a traumatic event or series of events related to their duties.

A worker is entitled to compensation if they are an emergency response worker (or were one) and have been diagnosed with PTSD by a psychiatrist or psychologist. The timing of the diagnosis depends on whether the worker is currently an emergency response worker or has ceased to be one.

An emergency response worker entitled to benefits for PTSD is entitled to receive treatment from a psychiatrist or psychologist who is knowledgeable about PTSD treatment research.

Inter-provincial worker

If a worker or their dependents are eligible for compensation or another remedy for an accident both in another jurisdiction and in New Brunswick, they must choose either to claim compensation under the law of the other jurisdiction or to claim compensation under this Act (the New Brunswick law).

• They need to notify the Commission of their election within 3 months, except if there is an existing agreement in place, which may have its own terms regarding the election.

Burial and related expenses

If a worker dies as a result of an injury, the Commission will provide financial assistance to cover burial and related expenses.

• The worker's estate will receive an amount equal to 40% of the New Brunswick Industrial Aggregate Earnings to help with necessary expenses such as burial.

• Additionally, they will receive an amount equal to 50% of the New Brunswick Industrial Aggregate Earnings.

• If the body of the worker needs to be transported over a significant distance for burial, an additional sum will be provided to cover the expenses of transportation.

Survivor benefits

If a worker dies due to an injury, benefits will be paid to the worker's dependents. If the worker had a dependent spouse, the spouse will receive benefits for one year or until they reach the age of sixty-five, whichever comes first. The benefits will be equal to 80% of the worker's average net earnings.

Within one year of the worker's death, the dependent spouse must choose between two options for receiving benefits. The Commission will provide independent financial advice to the spouse before they make their election. If the spouse is unable or unwilling to make an election within the given period, the Commission may extend the time or make an election on behalf of the spouse, considering the best interests of the spouse and other dependents.

• Once an election is made, it cannot be changed and will become effective one year after the worker's death.

• If there is a surviving child and the spouse cannot care for the child or subsequently dies, benefits will be paid to the child's guardian based on the child's age.

Option 1:

If the dependent spouse decides to receive benefits under this section, they will be paid until the age of sixty-five. The benefits will be equal to 85% of the worker's average net earnings.

• If the full benefit amount, when combined with the new spouse's earnings, exceeds 85% of the net family income, the benefits will be adjusted accordingly.

• Benefits will be reviewed annually, and the worker's average earnings will be adjusted based on the percentage increase in the New Brunswick Industrial Aggregate Earnings.

• If the dependent spouse cannot care for a surviving child or subsequently dies, benefits will be paid to the child's guardian based on the child's age.

Option 2:

If the dependent spouse chooses to receive benefits under this section, they will receive a lump sum payment and ongoing benefits until the age of sixty-five.

• The lump sum payment will be 60% of the worker's net annual income, as calculated by the Commission.

• Benefits for dependent children will be based on their age, with different percentages of the New Brunswick Industrial Aggregate Earnings allocated for different age groups.

• If the dependent spouse cannot care for a dependent child or subsequently dies, the benefits will be paid to the child's guardian.

• Benefits for dependent children and surviving dependent invalid children will be adjusted based on changes in the child's age.

• If a dependent other than a spouse or child was dependent on the worker at the time of their death, the Commission may provide benefits based on the pecuniary loss to the dependent, considering the scales of payments.

NB Worker’s Compensation Act s. 7-7.1, 8, 8.1, 37, 38.11, 38.5-38.53