Pension Benefits – Pre-1982 Accidents Policy 21-207 | Effective Date: February 17, 2011

Purpose

The purpose of this policy is to provide staff with guidelines to administer compensation benefits for accidents that have occurred before January 1, 1982.

Scope

This policy applies to injured workers who sustained a compensable work-related injury before January 1, 1982.

Statements

1.0 General

Benefits awarded for accidents occurring before January 1, 1982 are intended to compensate injured workers for the permanent loss of a body part or function, rather than for loss of earnings. These benefits are commonly referred to as pre-1982 pension benefits.

Pre-1982 pension benefits are paid for either:

• Permanent Total Disability (PTD), 100% disabled; or
• Permanent Partial Disability (PPD), which includes those with disabilities of 99% or less.

WorkSafeNB calculates pre-1982 pension benefits based on the higher of either:

• 75% of the injured worker’s monthly gross earnings at the time of injury multiplied by the degree of disability; or
• 75% of the minimum monthly wage base amount multiplied by the degree of disability.

A Medical Advisor determines the degree of disability, expressed as a percentage of total body function, by using Regulation 82-165 – Permanent Physical Impairment Rating Schedule.

Pre-1982 PTD and PPD pension benefits are lifetime pensions.

Claims for new injuries and recurrences of injuries are administered under current legislation, using wages at the time of new injury or recurrence to determine additional benefits.

When a recipient of a PTD award dies, the surviving spouse becomes eligible to receive survivor benefits according to subsection 38.8(2) of the Workers’ Compensation Act (WC Act)  pursuant to subsection 48(5).

Note: Pre-1982 benefits paid during the rehabilitation of an injury were called Total Temporary Disability (TTD) benefits.  Equivalent benefits under current legislation are regular loss of earnings benefits.

1.2 Multiple Claims / Benefits

Injured workers receiving pre-1982 pension benefits may also be entitled to loss of earnings benefits should they suffer another compensable injury or recurrence of an injury on or after January 1, 1982.

The combined loss of earnings benefits paid by WorkSafeNB, regular loss of earnings and/or long-term disability benefits, must not exceed the legislated maximum benefits level for the new injury or recurrence of the injury under section 38.11 or 38.2 of the WC Act.

However, pre-1982 PTD and PPD pension benefits are neither considered to be loss of earnings benefits, nor employment related remuneration. Therefore, they are not considered when calculating loss of earnings benefits. For more information see Policy No. 21-210 Determining Average Earnings.

2.0 Review / Upgrade of Pension Benefits

Effective January 1, 1990, WorkSafeNB reviewed and upgraded pre-1982 pensions, under section 48 of the WC Act, for workers who were under 65 years of age as of that date. Once the pre-1982 pension benefit is increased it remains at the higher level until the disability ceases or the injured worker reaches age 65.

2.1 Upgrade of PTD Benefits (100% Disability)

The guidelines for upgrading these types of benefits are explained in subsection 48(2) of the WC Act.

Prior to the injured worker turning 65 years of age, WorkSafeNB upgrades PTD benefits so that the injured worker receives the greater of:

• 50% of the NBIAE; or
• 75% of the NBIAE minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any Canada Pension Plan (CPP) and Old Age Security Act (OAS) benefits the injured worker is entitled to receive.

2.2 Upgrade of PPD Benefits of 50% to 99% Disability

The guidelines for upgrading these types of benefits are explained in subsection 48(3) of the WC Act.

Prior to the injured worker turning 65 years of age, WorkSafeNB upgrades PPD benefits so that the injured worker receives the greater of:

• 50% of the NBIAE multiplied by the degree of disability; or
• 75% of the NBIAE multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.

 2.3 Upgrade of PPD Benefits of less than 50% Disabled

The guidelines for upgrading these types of benefits are explained in subsection 48(4) of the WC Act.

Prior to the injured worker turning 65 years of age, WorkSafeNB upgrades PPD benefits so that the injured worker receives the greater of:

• Benefits payable immediately before January 1, 1982; or
• 50% of the NBIAE multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive; or
• 75% of $7,200 multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.

3.0 Pre-1948 Silicosis Compensation Claims

Prior to 1948, WorkSafeNB adjudicated claims for silicosis under the Silicosis Compensation Act. Claims for silicosis after 1948 are adjudicated under workers’ compensation legislation.

Effective January 23, 1987, WorkSafeNB increased the monthly payments to injured workers or dependants who are receiving benefits under the Silicosis Compensation Act from:

• $400.00 to $450.00 to a disabled worker; and,
• $290.00 to $340.00 to a surviving spouse.

4.0 Temporary Supplementary Benefits

Prior to August 27, 1991, WorkSafeNB awarded Temporary Supplementary Benefits (TSB) to PPD claimants to help alleviate financial hardship. This temporary supplement terminates when injured workers reach age 65, or when they no longer demonstrate financial need, whichever occurs first.

Financial hardship existed if the pre-1982 pension benefit was below the payment maximum for TSB. Entitlement to the TSB was calculated by comparing the family income to the payment maximum for the TSB. If the family income were above the payment maximum, then no TSB would be paid. If the family income were below the payment maximum, the benefit would be increased up to the maximum amount.

No new Temporary Supplementary Benefits are to be created for claims after August 27, 1991.

5.0 Effective Dates

Pre-1982 pension benefits are paid one month in advance at the end of each month.

WorkSafeNB establishes the effective date of pre-1982 pension benefits on the:

• Date that weekly benefits (TTD) are terminated, when an injured worker has achieved optimal recovery and a PPD or PTD has been identified; or
• Date of the examination by a Medical Advisor, where the injured worker’s degree of disability is reviewed and the level of disability has increased from the previous award; or
• Retroactively to a date determined by a Medical Advisor, based on available medical information that confirms that an increased disability level existed prior to the examination.

6.0 Review of Pension Awards

Effective January 1, 1990, WorkSafeNB reviews pre-1982 pension benefits annually as of the anniversary date of injury. Reviews continue until:

• The disability ceases to exist; or
• The injured worker turns 65 years of age, whichever occurs first.              

At age 65, WorkSafeNB:

• Completes one final review;
• Determines the benefit level for the duration of the disability or until the death of the injured worker; and
• Does not conduct any other annual reviews, as benefits are no longer indexed, however adjustments may occur based on increases in the level of disability.

6.1 Review of PTD Benefits (100% Disabled)

Prior to Age 65

WorkSafeNB reviews PTD benefits annually. During the annual review, PTD benefits are adjusted to the greater of:

• $600 monthly; or
• 50% of the NBIAE; or
• 75% of the NBIAE minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.

At Age 65

WorkSafeNB completes one final review as of the date that the injured worker turns 65. This final review determines the final benefit level to be paid for the duration of the disability or until the death of the injured worker.

This final benefit level is the greater of:

• $600 monthly; or
• Benefits payable immediately before January 1, 1982; or
• 75% of $17,000 minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive, except CPP and OAS increases after 1984.

Note: For injured workers who were not receiving CPP or OAS in 1984, on the date that they become eligible to receive these benefits, WorkSafeNB uses the amount that they are entitled to receive to complete the formula in bullet three (above). For the purpose of this calculation, that CPP or OAS rate is not increased thereafter.

6.2 Review of PPD Benefits of 50% to 99% Disabled

Prior to Age 65

For injured workers whose disability level is between 50% and 99%, WorkSafeNB reviews PPD benefits annually and adjusts them to the greater of:

• 50% of the NBIAE multiplied by the degree of disability; or
• 75% of the NBIAE multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.           

At Age 65

WorkSafeNB completes one final review as of the date that the injured worker turns 65. This final review determines the final benefit level paid for the duration of the disability or until the death of the injured worker.

This final benefit level is the greater of:

• Benefits payable immediately before January 1, 1982; or
• 75% of $17,000 multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive, except CPP and OAS increases after 1984.

6.3 Review of PPD Benefits of Less Than 50% Disabled               

Prior to Age 65

For injured workers whose disability level is less than 50% (49% or less), WorkSafeNB reviews PPD benefits annually and adjusts them to the greater of:

• PPD benefit level payable immediately before January 1, 1982; or
• 50% of the NBIAE multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive; or
• 75% of $7,200 multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.              

At Age 65

WorkSafeNB completes one final review as of the date that the injured worker turns 65. This final review determines the final benefit level paid for the duration of the disability or until the death of the injured worker.

This final benefit level is the greater of:

• PPD benefit level payable immediately before January 1, 1982; or
• 75% of $17,000 multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive, except CPP and OAS increases after 1984; or
• 75% of $7,200 multiplied by the degree of disability, minus the earnings the injured worker is estimated capable of earning at a suitable occupation, and any CPP and OAS benefits the injured worker is entitled to receive.

Note: For injured workers who were not receiving CPP or OAS in 1984, on the date that they become eligible to receive these benefits, WorkSafeNB uses the amount that they are entitled to receive to complete the formula in bullet three (above). For the purpose of this calculation, that CPP or OAS rate is not increased thereafter.