PURPOSE
The purpose of this policy is to outline principles used to determine entitlement and manage claims under the Firefighters’ Compensation Act (FC Act) and Regulation 2009-72.
SCOPE
This policy applies to all new claims for compensation under the FC Act.
POLICY STATEMENTS
1.0 General
All claims for injury or disease arising from employment are adjudicated under the Workers’ Compensation Act (WC Act), using Policy 21-100 Conditions for Entitlement – General Principles. This includes claims made by firefighters, former firefighters and their dependants. All claims must first be adjudicated under the WC Act. If it is determined that the firefighter, former firefighter, or dependant is not eligible to receive benefits under the WC Act, then the claim is adjudicated under the FC Act. The three-day waiting period does not apply to firefighters under the WC Act or the FC Act.
Unlike the WC Act, the FC Act presumes certain injuries and diseases to be employment-related. The FC Act does not require weighing of evidence to determine that, on a balance of probabilities, the prescribed disease or condition is employment-related.
Entitlement under the FC Act may exist, then, when there is disablement or death resulting from:
Once an individual or dependant is entitled to compensation under the FC Act, benefits, services, and re-openings are applied in a similar manner as other claims for compensation where the evidence supports disablement. This policy outlines the differences.
2.0 Conditions for Entitlement
In order for the injury to be accepted as a workplace injury or disease under the FC Act, it must be determined that:
WorkSafeNB may use evidence gathered under the WC Act in order to determine if there is entitlement under the FC Act.
2.1 Exposure as a Firefighter
The FC Act extends coverage to full-time, part-time, volunteer, and former firefighters. Evidence of regular exposure to hazards of a fire scene, excluding forest fires, throughout employment as a firefighter is required from the employer(s). Regular exposure means that the firefighter did attend a fire scene(s), other than a forest fire, during the prescribed period.
To be eligible for compensation where presumption is applied, firefighters or former firefighters must have worked a minimum length of service as prescribed in the Regulation.
2.2 Application and Statute of Limitations
The FC Act requires that a claim for benefits and services must be made within:
Firefighters and former firefighters, who for the period of November 30, 2007 to July 22, 2009 were eligible to make a claim for compensation, were required to do so by July 22, 2010.
If the claim is not made in the time period provided, WorkSafeNB may not provide benefits and services, unless it is first determined by WorkSafeNB that the claim is just and ought to be allowed and there is evidence of disablement from the prescribed disease. WorkSafeNB determines whether a claim is just and ought to be allowed on a case-by-case basis when other conditions for entitlement are met.
3.0 Funding the Cost of Claims
WorkSafeNB levies assessments to municipalities and rural districts to fund benefits and services for claims for injury or disease accepted under the FC Act. Medical treatments and services are provided under the Medical Services Payment Act or Hospital Services Act. Other benefits and services provided under the FC Act are paid out of the FC Act Disability Fund. This fund is separate from the WC Act Accident Fund, and WorkSafeNB has exclusive jurisdiction for all matters related to the collection and payment of the FC Act Disability Fund.
3.1 Annuities
Individuals who continue to receive loss of earnings benefits under the FC Act for 24 consecutive months are entitled to an annuity benefit. This benefit is administered separately from annuities provided under the WC Act.
3.2 Cost Relief
The FC Act has no provisions for pre-existing conditions, therefore, the employer has no entitlement to cost relief.
3.3 Overpayments
Employers will only be credited/relieved of overpayment costs upon the recovery of such monies.
LEGAL AUTHORITY
Legislation
Firefighters’ Compensation Act
3(1) 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.
3(2) On and after July 1, 2024, the reference to “one and one-half times” in subsection (1) shall be read as a reference to “1.6 times”.
5(1) A firefighter or former firefighter or their dependants are entitled to compensation or benefits in accordance with this Act if
(a) the firefighter is disabled by or dies from a heart attack that occurs within 24 hours after attendance at an emergency response scene in their capacity as a firefighter, or
(b) the firefighter or former firefighter is disabled by or dies from a prescribed disease, and
(i) has served as a firefighter for a minimum period prescribed by regulation, and
(ii) has been regularly exposed to the hazards of a fire scene in their capacity as a firefighter, other than a forest fire scene, throughout that period of service.
5(2) No compensation or benefits shall be provided under this Act unless it is first determined by the Commission that the firefighter or former firefighter or their dependants are not eligible to receive compensation or benefits under the Workers’ Compensation Act in respect of the disablement or death.
6(1) A firefighter or former firefighter or a dependant who is entitled to compensation or benefits under this Act shall file a claim with the Commission in the form required by the Commission.
6(2) A claim shall be accompanied by
(a) a certificate of the attending medical practitioner as to the disability or death of the firefighter or former firefighter or as to the existence of the heart attack or prescribed disease in the case of a claim for aid under section 38, and
(b) such other documentation to verify the applicant’s eligibility for compensation or benefits, as may be required by the Commission.
7(1) Except as provided in subsection (2) and section 38, a firefighter or former firefighter or a dependant shall make a claim for compensation or benefits within one year after the date of the disablement or in the case of death, within 6 months from the time of death.
7(2) A firefighter or former firefighter or a dependant, if they would have been entitled to make a claim for compensation or benefits on or after November 30, 2007, but could not do so because this Act had not yet received Royal Assent, shall make a claim for compensation or benefits within one year after the date that this Act receives Royal Assent.
8 The Commission shall not pay any compensation or provide benefits under this Act if an application is not made within the period of time provided for under section 7 or 38, as the case may be, unless the Commission is of the opinion that the claim is a just one and ought to be allowed.
10(1) If a disablement results in a loss of earnings beyond one day, the Commission shall estimate the loss of earnings of the firefighter or former firefighter and shall, subject to this Act, pay compensation to him or her in an amount equal to 85% of the estimated loss of earnings.
10(2) On and after July 1, 2024, the reference to “85%” in subsection (1) shall be read as a reference to “90%”.
12(1) The Commission shall pay to a firefighter or former firefighter only that portion of compensation which, when combined with the amount of any remuneration received by the firefighter or former firefighter from their employer or from any employment-related source or any income replacement or supplement benefit from any source does not exceed 85% of the firefighter’s or former firefighter’s prior net earnings calculated for the same period of time as that during which compensation is paid.
12(2) On and after July 1, 2024, the reference to “85%” in subsection (1) shall be read as a reference to “90%”.
32 The compensation and benefits provided under this Act and the administrative expenses of the Commission shall be paid out of a fund to be called the Disability Fund.
38(1) In this section “aid” includes dental services, chiropractic services, nursing services, artificial members and apparatus, including their repair and replacement, transportation, clothing allowances with respect to damage caused to clothing as a result of the use of an artificial member or apparatus, and any other treatment or service, but does not include treatment or services provided under the Medical Services Payment Act or the Hospital Services Act.
45(1) For each year commencing 2010 up to and including 2014, the Commission shall, on or before the first day of February in each year and subject to subsection (5), make an estimate of the assessment necessary to provide funds for
(a) the cost of all claims for compensation and benefits incurred during the year,
(b) the estimated future cost of the claims and benefits in paragraph (a) payable during subsequent years, and
(c) such sum as the Commission considers appropriate for the administrative expenses of the Commission.
45(2) An assessment under subsection (1) may be adjusted to account for an excess or deficiency in the assessment made for a previous year.
45(3) In the event the Commission incurs a liability because of potential claims for compensation or benefits by firefighters or former firefighters who have been exposed to the hazards of a fire scene as provided under paragraph 5(1)(b), the Commission shall take such steps as are necessary to assess, levy and collect, over a period of 20 years from the time the liability is incurred, sufficient funds to fund the liability.
45(4) The Commission shall, subject to subsection (5), annually levy each municipality and rural community that has its own fire brigade, and the Crown in right of the Province on behalf of each local service district and rural community in which there is a fire brigade for which the Minister is responsible, the same flat amount in respect of each person who is employed or serves as a firefighter with the municipality or rural community or who serves in a fire brigade for which the Minister is responsible.
45(5) The total amount levied per person in any year shall not exceed the amount prescribed by regulation.
47(1) For the year 2015 and each year thereafter, the Commission shall, on or before the first day of February in each year, make an estimate of the assessment necessary to provide funds sufficient to meet
(a) the estimated cost of all claims for compensation and benefits likely to be incurred during the year,
(b) the estimated future cost of the claims and benefits in paragraph (a) payable during subsequent years, and
(c) such sum as the Commission considers appropriate for the administrative expenses of the Commission.
47(2) An assessment under subsection (1) may be adjusted to account for an excess or deficiency in the assessment made for a previous year.
47(3) In the event the Commission incurs a liability because of potential claims for compensation or benefits by firefighters or former firefighters who have been exposed to the hazards of a fire scene as provided under paragraph 5(1)(b), the Commission shall take such steps as are necessary to assess, levy and collect, over a period of 20 years from the time the liability is incurred, sufficient funds to fund the liability.
47(4) ) The Commission shall annually levy each municipality and rural community that has its own fire brigade, and the Crown in right of the Province on behalf of each local service district and rural community in which there is a fire brigade for which the Minister is responsible, the same flat amount in respect of each person who is employed or serves as a firefighter with the municipality or rural community or who serves in a fire brigade for which the Minister is responsible.
47(5) The Commission shall
(a) send to each municipality and rural community that has its own fire brigade an invoice indicating the amount levied under this section in relation to the municipality or rural community, and
(b) send to the Minister of Local Government an invoice indicating the amount levied under this section in relation to each local service district and rural community in which there is a fire brigade for which the Minister is responsible.
48(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, the provision of benefits, the administration of payments and the collection and management of the funds for those purposes.
48(2) 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.
49(1) Except as provided in sections 41 and 42, the Commission has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Act and as to any matter or thing in respect of which any power, authority or discretion is conferred upon the Commission.
Firefighters’ Compensation Act Regulation 2009-72: General
7(1) When personal injury or death is caused to a worker by accident arising out of and in the course of the worker’s employment in an industry within the scope of this Part, compensation shall be paid to that worker or the worker’s dependents, as the case may be, as hereinafter provided, unless the accident was, in the opinion of the Commission, intentionally caused by the worker, 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.
Workplace Health, Safety and Compensation Commission and Workers’ Compensation Appeals Tribunal Act
18(3) The necessary administrative costs for administering the Firefighters’ Compensation Act, whether incurred under that Act or this Act, shall be paid out of the Disability Fund.
Policy-related Documents
Policy 21-100 Conditions for Entitlement – General Principles
Policy 21-106 Accident Reporting and Application for Benefits
HISTORY
Adjudication – make a decision regarding a claim.
Appeals Tribunal – means the Workers’ Compensation Appeals Tribunal established under the WHSCC & WCAT Act.
Dependant – a member of the family of a firefighter or former firefighter, who was wholly or partly dependent upon their earnings at the time of their death or who, but for the disablement of the firefighter or former firefighter, would have been so dependent. (FC Act)
Disability fund – the fund providing for the payment of compensation, benefits and expenses pursuant to the FC Act and the administrative costs under this Act incurred in relation to the FC Act. (WHSCC & WCAT Act)
Disablement – a disability arising from a heart attack or a prescribed disease under the circumstances prescribed in section 5 of the FC Act. (FC Act)
Emergency response scene – those circumstances where a firefighter attends an unplanned crisis situation including but not limited to a fire, car crash, or other incidents as part of their active duty.
Firefighter – a person who is employed or serves as a firefighter with a municipality or rural community as a firefighter with a fire brigade that provides fire protection services in a local services district or in a community. (FC Act)
Heart attack – synonymous with myocardial infarction. Myocardial infarction is the death of the heart muscle due to lack of oxygen. (Adapted from Taber’s Cyclopedic Medical Dictionary)
Loss of earnings – (a) average net earnings, less (b) the earnings the firefighter or former firefighter is estimated to be capable of earning at a suitable occupation after becoming disabled, less any income tax and premiums under the Employment Insurance Act (Canada) and contributions under the Canada Pension Plan Act (Canada) that would be payable based on those earnings. (FC Act)
Prescribed disease – a disease prescribed by the regulations. (FC Act)
Presumption – finding of a basic fact gives rise to existence of presumed fact. (Adapted from Black’s Law Dictionary)
Rebuttal – evidence given to explain, repel, counteract or disprove facts given in evidence. (Adapted from Black’s Law Dictionary).
WorkSafeNB – means the Workplace Health, Safety and Compensation Commission or "the Commission" as defined by the WHSCC & WCAT Act.