Benefits for Survivors Policy 21-515 | Effective Date: August 5, 2015

Purpose

The purpose of this policy is to provide WorkSafeNB staff with guidelines for:

  • Determining entitlement to survivors’ benefits;
  • Communicating information on benefit plans, and burial and related expenses available to surviving spouses and dependants; and
  • Offering or providing external financial services to aid the surviving spouse in the election of benefits, where an option is provided under the Workers’ Compensation Act (WC Act).

Scope

This policy applies to survivors who are eligible for benefits due to a work-related fatality

Statements

1.0 General

WorkSafeNB adjudicates all claims for compensation using Policy 21-100 Conditions for Entitlement – General Principles. This includes adjudicating applications for compensation where:

  • The worker is fatally injured in a workplace accident;
  • The worker dies as a result of injuries sustained in a workplace accident;
  • The worker dies from an occupational disease contracted in the workplace; or
  • The worker dies from silicosis prior to 1948. Later silicosis cases are adjudicated as per the WC Act.Those individuals who are determined to be survivors can receive:

Where a worker dies of a compensable injury or illness, survivors of that worker may be entitled to benefits provided they meet the definition of “spouse” or other “member of the family” and satisfy all other criteria, including determining dependency as outlined in Policy 21-513 Who is a Survivor.

Those individuals who are determined to be survivors can receive:

  • Payments for burial and related expenses; and
  • Benefits to compensate for the loss of the deceased worker’s earnings.

2.0 Burial and Related Expenses

When a worker dies as a result of a workplace injury on or after December 20, 2012, in addition to any survivors’ benefits, WorkSafeNB pays to the worker’s estate:

  • An amount equal to 40% of the NBIAE to assist with necessary expenses of death, such as burial;
  • An amount equal to 50% of the NBIAE; and
  • A further sum for necessary expenses of transportation, where owing to the circumstances of the case, the body of the worker is transferred for a considerable distance for burial.

3.0 Establishing Benefit Levels for Survivors Benefits

Once a survivor’s claim has been accepted, the amount of benefits to be paid depends upon whether the death of the worker occurred:

  • On or after January 1, 1998;
  • On or after January 1, 1982, but before January 1, 1998; or
  • Before January 1, 1982.

When benefits are payable to a surviving spouse and/or other eligible dependents, the amount paid must not exceed the compensation that would have been payable to the worker had that worker survived and been unable to work, assuming that estimated capable earnings are zero, with the possible exception of when an injured worker dies whose date of accident was before January 1, 1982. For more information, see Policy 21-210 Calculation of Benefits.

Where dependent child benefits are applicable, the WC Act specifically designates the following benefits to be paid:

  • 10% of the NBIAE for a child less than 7 years;
  • 12.5% of the NBIAE for a child between 7 and 13 years inclusive;
  • 15% of the NBIAE for a child between 14 and 17 years inclusive; and
  • 15% of the NBIAE for a child between 18 and 21 years inclusive when that child is attending school on a full-time basis. Proof of full-time enrolment in a recognized educational institution is required.

WorkSafeNB may also pay benefits to a surviving invalid child for the lifetime of the child, or until the child ceases to be an invalid or dependant, at a rate not less than fifteen per cent of the NBIAE.

WorkSafeNB may pay benefits to other dependent members of the family if it is determined that they were dependent upon the worker’s earnings at the time of death, or would have been dependent had the worker lived. WorkSafeNB determines the level of dependency, by confirming the actual financial support that was being provided to the dependant at the time of the worker’s death.

However, for eligible members of the deceased worker’s family who are under the age of 21, benefits are paid at the same rate and for the same duration as those benefits paid to eligible dependent children.

When benefits are paid to multiple recipients, benefits are prorated in proportion to the dependency level to ensure benefits do not exceed the maximum benefits payable.

3.1 Death on or after January 1, 1998

Where the death of the worker occurs on or after January 1, 1998, WorkSafeNB pays benefits equal to 80% of the deceased worker’s average net earnings for a period of one year to the surviving spouse.

During this one-year period, the spouse must elect one of two benefit plans. The benefit plan chosen will be the one the spouse receives, so long as they remain entitled to benefits.

To assist the spouse in determining which plan is most appropriate, WorkSafeNB pays for services provided by a WorkSafeNB approved financial advisor. For more information, see Fee Schedule 29-215 Financial Advice for Surviving Spouses.

WorkSafeNB may extend the time for election by up to one year where a spouse is unable or unwilling to make the required election. Only one extension may be granted. Where the spouse has still not elected, WorkSafeNB contracts with an independent financial advisor to determine the best plan for that spouse and that decision will be deemed to be that of the surviving spouse.

The spouse must elect to receive benefits from one of the following plans:

Plan 1 – WorkSafeNB pays:

  • Benefits equal to 85% of the deceased worker’s average net earnings less any entitlement to CPP, payable until the spouse reaches age 65; and
  • An amount set aside equal to five percent of the benefits paid, which combined with accrued interest, shall be used by the surviving spouse to purchase an annuity at age 65. For more information, see Policy 21-206 Funding Annuity Benefits.

As outlined in section 3.0, where appropriate, WorkSafeNB may also pay benefits to:

  • A surviving invalid child; and/or
  • A member of the deceased worker’s family.

Benefits payable under this plan are subject to a family means test. This means that should the surviving spouse remarry or live with a new spouse, and the net earnings of the new spouse plus the benefits paid to the surviving spouse exceed 85% of the net family income, then only the portion that does not exceed 85% is payable to the dependent surviving spouse.

Plan 2 – WorkSafeNB pays:

  • A lump sum payment equal to 60% of the deceased worker’s net annual earnings;
  • Benefits equal to 60% of the deceased worker’s average net earnings payable until the spouse reaches age 65;
  • Benefits for each dependent child as listed in section 3.0; and 
  • An amount set aside equal to eight percent of benefits paid, which combined with accrued interest, shall be used by the surviving spouse to purchase an annuity at age 65. For more information, see Policy 21-206 Funding Annuity Benefits.

As outlined in section 3.0, where appropriate, WorkSafeNB may also pay benefits to:

  • A surviving invalid child; and/or
  • A member of the deceased worker’s family.

3.2 Death on or after January 1, 1982, but before January 1, 1998

Where the death of the worker has occurred on or after January 1, 1982, but before January 1, 1998, WorkSafeNB pays benefits to the surviving spouse as follows:

  • Monthly benefits equal to 80% of the deceased worker’s average net earnings less any entitlement to CPP until the spouse reaches age 65, or for two years, whichever is greater; and
  • An amount equal to eight percent of benefits paid, which combined with accrued interest, shall be used by the surviving spouse to purchase an annuity at age 65.

As outlined in section 3.0, where appropriate, WorkSafeNB may also pay benefits to;

  • A surviving invalid child; and/or
  • A member of the deceased worker’s family.

Benefits payable under this plan are subject to a family means test set out in ss. 38.6 (3) of the WC Act. This means that when payment of the survivors’ benefits, combined with the earnings of the surviving spouse at the time of the award or review exceed 90% of the net family income, then only the portion that does not exceed 90% is payable to the dependent surviving spouse.

3.3 Injury/Death before January 1, 1982

Where the death of the worker occurred before January 1, 1982, or where a worker who was injured before that date and in receipt of a permanent total disability award dies, regardless of the date of death, WorkSafeNB pays survivors’ benefits as follows:

  • Benefits equal to 40% of the New Brunswick Industrial Aggregate Earnings are paid for the lifetime of the surviving spouse; and
  • Benefits are paid to the surviving spouse or guardian for each dependent child, as outlined in section 3.0 of this policy.

As outlined in section 3.0, where appropriate, WorkSafeNB may also pay benefits to:

  • A surviving invalid child; and/or
  • A member of the deceased worker’s family.

3.4 Death Caused by Silicosis

Where a worker dies from silicosis contracted in the workplace before June 1, 1948, WorkSafeNB pays the surviving spouse benefits as set out in Regulation 84-288 under the Silicosis Compensation Act.

Where a worker dies from silicosis contracted in the workplace on or after June 1, 1948, WorkSafeNB pays benefits under the WC Act. The amount of benefits to be paid to survivors depends upon the date of death, as outlined in section 3.0 of this policy.

4.0 Annual Review

WorkSafeNB, reviews benefits paid to surviving spouses and dependents annually, based on whether the date of death occurred:

  • After January 1, 1982; or
  • Before January 1, 1982.

4.1 Post-1981 Surviving Dependents

If a worker dies after January 1, 1982, WorkSafeNB reviews survivor benefits annually:

  • As of the anniversary date of the death of the worker; and
  • Until the surviving spouse turns 65 years of age.When applicable, benefits for surviving dependent children are also reviewed and any adjustments necessary will be effective the month following the child’s birthday.   Any adjustments necessary are outlined in section 3.0 of this policy.

WorkSafeNB increases the injured worker’s average earnings by the percentage increase of the NBIAE and then adjusts benefits accordingly.

When applicable, benefits for surviving dependent children are also reviewed and any adjustments necessary will be effective the month following the child’s birthday.   Any adjustments necessary are outlined in section 3.0 of this policy.

4.2 Pre-1982 Surviving Dependents

If a worker dies before January 1, 1982, WorkSafeNB reviews benefits annually:

  • As of the anniversary date of the death of the worker; and
  • Until the death of the spouse.

WorkSafeNB adjusts the surviving spouse’s benefits to equal 40% of the NBIAE for the year of the review.

When applicable, benefits for surviving dependent children are also adjusted at this time as outlined in section 3.0 of this policy.

Workers’ Compensation Act (RSNB 1973, c W-13)

38.5(a), 38.5(a.1), 38.5(b), 38.51, 38.52, 38.53, 38.6, 38.7, 38.8, 48(5.1)

Firefighters’ Compensation Act (S.N.B. 2009, c. F-12.5)

20(a), 20(a.1), 20(b)

Silicosis Compensation Act (R.S.N.B. 2011, c.221)

1(1)a), 1(1)b), 1(2), 1(3)

Policy 21-100 Conditions for Entitlement – General Principles

Policy 21-206 Funding Annuity Benefits

Policy 21-210 Calculation of Benefits

Policy 21-513 Who is a Survivor

Fee Schedule 29-215 Financial Advice for Surviving Spouses

 

Appeals Tribunal – means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act.

Average earnings - 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. (WC Act)

Average net earnings - 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. (WC Act)

Dependents - 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. (WC Act)

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. (WC Act)

Net family income - 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. (WC Act)

New Brunswick Industrial Aggregate Earnings (NBIAE) - 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. (WC Act)

New spouse - 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. (WC Act)

Spouse - a person who, at the time of the death of the worker,

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. (WC Act)

Survivor - the spouse or a dependent member of the family of a deceased worker.

WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.

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