37(1) Where a loss of earnings results from an injury, an earnings-replacement benefit is payable to the worker in accordance with this Section.

(2) The amount of any earnings-replacement benefit payable to a worker is the difference between

(a) an amount equal to seventy-five per cent of the worker's loss of earnings; and

(b) the amount of any permanent-impairment benefit payable to the worker pursuant to Section 34.

(3) The amount of any earnings-replacement benefit payable to a worker after the worker has received compensation pursuant to subsection (2) for a total of twenty-six weeks is the difference between

(a) an amount equal to eighty-five per cent of the worker's loss of earnings; and

(b) the amount of any permanent-impairment benefit payable to the worker pursuant to Section 34.

 (4) Notwithstanding subsection (1), the Board shall not pay compensation pursuant to subsection (1) until the worker who is injured is unable to continue to work with the employer for whom the worker was working when the injury occurred for a period of time during which the worker would have received remuneration from that employer equivalent to two fifths of the worker's net average weekly compensation.

(5) The Board shall not pay compensation to a worker in respect of the period of time referred to in subsection (4) except as provided for in subsection (6).

(6) Where a loss of earnings results from an injury for more than five weeks, the Board shall pay to the worker the amount deducted pursuant to subsection (4).

(7) repealed 1999, c. 1, s. 4.

(8) repealed 1999, c. 1, s. 4.

(9) Subject to subsection (10) and Sections 72 and 73, earnings-replacement benefits are payable until the earlier of

(a) the date the Board determines that the loss of earnings has ended or no longer results from the injury; and

(b) the date the worker attains the age of sixty-five years.

(10) Where a worker is sixty-three years of age or older at the commencement of the worker's loss of earnings, the Board may pay the earnings-replacement benefits for a period of not more than twenty-four months following the date the loss of earnings commences.

(11) The loss of earnings referred to in subsection (1) shall be calculated in accordance with Section 38.

(12) Earnings-replacement benefits are payable periodically, in the manner and form and at times determined by the Board.

38 For the purpose of this Part, the loss of earnings of the worker is the difference between

(a) the worker's net average weekly earnings before the loss of earnings commences; and

(b) the net average weekly amount that the Board determines the worker

(i) is earning,

(ii) is capable of earning in suitable and reasonably available employment,

(iii) is receiving or is entitled to receive as a periodic benefit pursuant to the Canada Pension Plan or the Quebec Pension Plan, in which case, the Board shall include fifty per cent of the benefit,

after the loss of earnings commences.

39 (1) For the purpose of this Part, the net average earnings of a worker are the worker's gross average earnings calculated in accordance with Section 42, less the probable deductions for

(a) income tax payable by the worker;

(b) Canada Pension Plan premiums or Quebec Pension Plan premiums payable by the worker;

(c) unemployment-insurance premiums payable by the worker; and

(d) any other type of deduction the Board may prescribe by regulation.

(2) The income tax payable pursuant to clause (1)(a) may be calculated by using

(a) the worker's income from employment and, where unemployment-insurance benefits have been included in average earnings, the worker's income from unemployment-insurance benefits as income; and

(b) the worker's basic personal tax credits or exemptions and tax credits or exemptions for a person who is a dependant of the worker pursuant to the Income Tax Act (Canada) as deductions.

(3) The Board shall, as of January 1st in each year, establish a schedule or procedure for determining the probable deductions required by subsection (1).

(4) In establishing a schedule and procedure pursuant to subsection (3) and in calculating probable deductions pursuant to subsection (1), it is not necessary that the Board consider a worker's actual circumstances or deductions.

40 (1) Subject to subsections (2) and (3), a worker's net average earnings and maximum earnings are the worker's net average earnings and maximum earnings as of the date of injury.

(2) Where a worker's loss of earnings resulting from an injury has ended, and the worker subsequently suffers a loss of earnings

(a) resulting from the same injury; and

(b) the subsequent loss of earnings occurs more than twelve months after the initial loss of earnings has ended,

the worker's net average earnings and maximum earnings are

(c) the worker's net average earnings and maximum earnings before the initial loss of earnings; or

(d) the worker's net average earnings and maximum earnings at the time of the subsequent loss of earnings,

whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.

(3) Where a worker's loss of earnings resulting from an injury commences more than twelve months after the injury, the worker's net average earnings are

(a) the workers' net average earnings and maximum earnings before the injury; or

(b) the worker's net average earnings and maximum earnings before the loss of earnings commences,

whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.

41 The maximum amount for a worker's gross annual earnings for the purpose of this Part is

(a) where the injury occurs before the coming into force of this Part, the maximum amount established from time to time pursuant to a predecessor Act;

(b) thirty-eight thousand dollars on the coming into force of this Part; and

(c) on and after January 1, 1996, a percentage, determined by the Governor in Council, of the average industrial wage for the Province.

42 (1) Subject to this Section, a worker's gross average earnings are

(a) the worker's regular salary or wages; and

(b) any other types or amounts of income as the Board may prescribe by regulation,

calculated over a period up to three years immediately preceding the commencement of the loss of earnings, expressed as a weekly amount.

(2) In choosing the period for the purpose of subsection (1), the Board may

(a) choose any period that, in the opinion of the Board, allows it to best represent the actual loss of earnings suffered by the worker as a result of the injury; and

(b) vary the period from time to time.

(3) In prescribing types and amounts of income pursuant to subsection (1) the Board

(a) shall not prescribe as income pregnancy or parental benefits received pursuant to the Unemployment Insurance Act (Canada); and

(b) may make distinctions between temporary and extended earnings_replacement benefits.

43 Where it is impracticable to compute the earnings of a worker as a consequence of

(a) the length of time the worker has been employed; or

(b) the casual nature of the worker's employment,

the Board may determine the worker's earnings in the way that appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.

44 Where a worker enters into concurrent contracts of service with two or more employers, the worker's average earnings shall be computed on the basis of what the worker was earning from all the worker's employers.

45 (1) Where the Board is satisfied that a worker's average earnings before the loss of earnings commences do not fairly represent the worker's actual loss of earnings because the worker was a learner, the Board may deem the worker's average earnings to be an amount that it determines better reflects the probable earnings of the worker had the worker, in the normal course, become qualified in the worker's trade or occupation.

(2) The Board may, by regulation, prescribe a maximum amount of average earnings that may be deemed for the purpose of this Section.

46 (1) Where the Board is satisfied that a worker's average earnings before the loss of earnings commences do not fairly represent the worker's actual loss of earnings because of the worker's age, the Board may deem the worker's average earnings to be an amount that it determines better reflects the probable earnings of the worker.

(2) Subsection (1) does not apply to a worker who had attained the age of thirty years on or before the date of the injury.

(3) The Board may, by regulation, prescribe a maximum amount of average earnings that may be deemed for the purpose of this Section.

47 The Board may allocate to any fund or funds any additional cost or portion of the cost incurred pursuant to Section 44, 45 or 46 as a result of

(a) including earnings from a worker's employment in an industry to which this Part does not apply;

(b) including earnings from employers other than the employer at which the injury occurs; and

(c) adjusting earnings pursuant to Sections 45 and 46.

48 (1) Notwithstanding any other provision of this Part, the total amount of compensation payable to a worker pursuant to this Part and any predecessor Act shall not exceed

(a) seventy-five per cent of the net maximum earnings for the most recent year in which the worker suffered an injury resulting in loss of earnings; and

(b) eighty-five per cent of the net maximum earnings for the most recent year in which the worker suffered an injury resulting in loss of earnings, after the worker has received compensation pursuant to clause (a) for a total of twenty-six weeks.

(2) To give effect to subsection (1), the Board may

(a) consider the length of time a worker is in receipt of any compensation during any year and the resulting effect on probable income tax, Canada Pension Plan premiums, Quebec Pension Plan premiums, or unemployment-insurance premiums payable by the worker, and recalculate the compensation based on those considerations;

(b) deem any entitlement to a refund or reduction of the probable income tax, Canada Pension Plan premiums, Quebec Pension Plan premiums, or unemployment-insurance premiums payable by the worker to be earnings that the worker is capable of earning after the injury;

(c) deduct from compensation to which the worker may become entitled to prevent any payment of compensation in excess of the amounts set out in subsection (1);

(d) prescribe, by regulation, criteria to reduce the deduction referred to in clause (c);

(e) consider any compensation paid in excess of the compensation set out in subsection (1) to be overpayments of compensation.

(3) Subsection (1) does not apply to any worker who was, on the date this Part comes into force, receiving compensation pursuant to a predecessor Act the total amount of which exceeded the amounts set out in subsection (1), until there is for any reason a decrease in the amount of compensation payable to the worker so that the compensation payable to the worker is equal to or less than the amount set out in subsection (1).

49 repealed 1999, c. 1, s. 5.

50 (1) When a worker becomes entitled to an extended earnings-replacement benefit, the Board shall reserve an amount equal to five per cent of the extended earnings-replacement benefit and any permanent-impairment benefit payable to the worker to provide an annuity for the worker.

(2)Where a worker would have been entitled to an extended earnings-replacement benefit but for subsection 37(3), the Board shall reserve an amount equal to five per cent of the extended earnings-replacement benefit that would have been payable to provide an annuity for the worker.

(3)The amount reserved pursuant to subsections (1) and (2) shall be paid and administered in accordance with Sections 51 to 58.

51 Sections 52 to 58 apply to any amount reserved as an annuity pursuant to Section 50 or 66.

52 (1) Any amount reserved as an annuity, together with accrued interest, is payable

(a) in periodic instalments beginning at

(i) the date the worker attains the age of sixty_five years, or

(ii) in the case of a person receiving a survivor pension, the date the survivor pension terminates pursuant to subsection 60(3); or

(b) at any time and in the manner the Board determines, where the amount reserved by the Board as an annuity is less than an amount prescribed by the Board by regulation.

(2) The term of the annuity shall be determined by the Board.

53 The Board shall not deduct any amount payable as an annuity from any other compensation paid by the Board.

54 (1) Any amount reserved as an annuity may be

(a) paid into a fund established by the Board; or

(b) if requested by the recipient, paid into a registered retirement plan.

(2) Any fund established pursuant to clause (1)(a) may, with the approval of the Board of Directors, be administered by a recognized financial institution.

55 The annuity created pursuant to Section 50 is in addition to and not in lieu of any benefit paid pursuant to the Canada Pension Plan, the Quebec Pension Plan or the Old Age Security Act (Canada).

56 (1) Where a person for whom the Board reserves an annuity dies before the date fixed in Section 52, the Board may pay

(a) where the person is survived by a spouse, to the spouse; or

(b) where the person is survived by a dependent child or children but not a spouse, to the dependent child or children,

a lump sum equivalent to the value of the accumulated capital and interest.

(2) Where the lump sum referred to in subsection (1) is greater than an amount that may be determined by the Board by regulation, the Board may reserve the lump sum as an annuity to be administered by the Board in accordance with Section 54.

57 Where the recipient of an annuity dies before the term of the annuity expires, the balance of the annuity shall be paid

(a) to any person who has been designated, in a manner satisfactory to the Board, by the recipient;

(b) where no designation is made pursuant to clause (a) and the recipient is

(i) survived by a spouse, to the spouse, or

(ii) survived by a dependent child or children but not a spouse, to the dependent child or children.

58 (1) Where

(a) there is no surviving spouse or dependent child for the purpose of Section 56 or 57; or

(b) the recipient has not made a designation for the purpose of Section 57,

the accumulated capital and interest shall be paid into the Accident Fund.

(2) Where money payable under an annuity is unclaimed more than six years from the day the Board determines the first unclaimed payment is due, the accumulated capital and interest shall be paid into the Accident Fund.

(3) Where the Board has paid an annuity into the Accident Fund pursuant to subsections (1) or (2), the Board is not liable to make any payment under the annuity.

59 For the purpose of Sections 60 to 68,

(a) "death benefit" means a sum not less than fifteen thousand dollars prescribed by the Board by regulation;

(b) "dependent-child benefit" means an amount, not less than one hundred and ninety-six dollars, prescribed by the Board by regulation;

(c) "survivor pension" means an amount equal to eighty-five per cent of the worker's net average earnings before the accident.

60 (1) Where a worker dies as the result of an injury, the amount of compensation payable is

(a) the necessary expenses of the burial of the worker not exceeding four thousand dollars, or a larger amount prescribed by the Board by regulation;

(b) the expenses, or a portion of the expenses the Board considers reasonable, for transportation of the body of the worker from the place of death to the worker's usual place of residence, not exceeding an amount prescribed by the Board by regulation;

(c) where the worker has a dependent spouse,

(i) a death benefit, and

(ii) a survivor pension; and

(d) where the worker has dependent children, each dependent child under the age of eighteen years shall receive the dependent-child benefit on a monthly basis.

(2) The amount paid pursuant to subclause (1)(c)(ii) shall not exceed the amount that would have been payable to the worker as a combined extended earnings-replacement benefit and permanent-impairment benefit for permanent total loss of earnings.

(3) Subject to subsection (4), a survivor pension payable pursuant to subsection (1) is payable until the worker would have attained the age of sixty-five years or until the surviving spouse attains the age of sixty-five years, whichever is later.

(3A) Notwithstanding subsection (3), a survivor pension payable pursuant to subsection (1) is payable for life where

(a) the worker was injured before February 1, 1996; and

(b) the worker died as a result of the injury on or after February 1, 1996.

(3B) Where, pursuant to this Section, a survivor pension is payable for life, Section 66 does not apply.

(4) Where no compensation is payable pursuant to subsection (1), the Board may, subject to subsection (5),

(a) recognize persons other than a worker's spouse or children as dependants; and

(b) pay compensation proportionate to the pecuniary loss or loss of valuable services suffered by any person recognized pursuant to clause (a) as a result of the worker's death.

(5) The compensation payable pursuant to subsection (4) shall not exceed the amount that would have been payable to the worker as a combined extended earnings-replacement benefit and permanent-impairment benefit for permanent total loss of earnings, to all of the worker's dependants.

(6) The Board shall pay compensation pursuant to subsection (4) until the earlier of

(a) the date when, in the opinion of the Board, the worker's support for the dependants might reasonably have been expected to cease; and

(b) five years after the date of the first payment made pursuant to subsection (4).

(7) Where a worker dies and at the time of the worker's death is in receipt of compensation payable to the worker pursuant to this Act, the dependent spouse or dependent children of the worker shall receive by way of compensation an amount equal to three times the monthly payment that would have been payable to the worker if the worker were alive.

(8) Notwithstanding subsection (7), where a worker dies and at the time of the worker's death is in receipt of compensation payable to the worker pursuant to this Act for a permanent impairment rated at one hundred per cent on the permanent-impairment rating schedule established pursuant to Section 34, the dependent spouse or dependent children of the worker shall receive by way of compensation in addition to the amount provided in subsection (7) a further amount equal to nine times the monthly payment that would have been payable to the worker if the worker were alive.

Certain dependant spouses
60A (1) In this Section, "former Act" means Chapter 508 of the Revised Statutes, 1989, as it read from time to time before the coming into force of this Section.

(2) This Section applies to a dependent spouse whose survivor benefits under the former Act were, before October 1, 1992, discontinued on remarriage pursuant to Section 61 of the former Act.

(3) A dependent spouse may apply to the Board to have survivor benefits reinstated pursuant to this Section and the Board may reinstate the benefits.

(4) An application pursuant to subsection (3) shall be made in writing.

(5) No application may be made pursuant to subsection (3) by the estate of a dependent spouse.

(6) No benefits shall be reinstated pursuant to this Section for a period of time

(a) before January 1, 1999, for a dependent spouse whose survivor benefits under the former Act were discontinued before April 17, 1985; or

(b) before the later of April 17, 1985, and the date the survivor benefits were discontinued under the former Act for a dependent spouse whose survivor benefits under the former Act were discontinued on or after April 17, 1985, and before October 1, 1992.

(7) The Board, with the approval of the Governor in Council, may make regulations

(a) respecting the calculation of benefits pursuant to this Section;

(b) respecting the manner of reinstating benefits pursuant to this Section;

(c) deemed necessary or advisable to carry out effectively the intent and purpose of this Section.

(8) The exercise by the Board of the authority contained in subsection (7) is regulations within the meaning of the Regulations Act. 1999, c. 1, s. 7.

61 (1) Where

(a) a worker dies leaving no spouse or where the spouse of the worker dies; and

(b) there is a suitable person standing in the place of the parent and maintaining the worker's household,

the Board may, subject to subsection (2), pay compensation, in an amount and in the manner determined by the Board, to the person.

(2) The total of the dependent-child benefits paid to the worker's children and the compensation paid pursuant to subsection (1) shall not exceed the amount that would have been payable to the worker as a combined extended earnings-replacement benefit and permanent-impairment benefit for permanent total loss of earnings.

62 (1) Where a dependant

(a) is a child under the age of eighteen years; and

(b) both of the dependant's parents are deceased,

the Board may, in addition to any amount the dependant may be entitled to pursuant to this Part, pay the dependant any further amount the Board may determine.

(2) The total of all amounts paid to dependent children shall not exceed the amount that would have been payable to the worker as a combined extended earnings-replacement benefit and permanent-impairment benefit for permanent total loss of earnings.

63 (1) The Board shall pay only one survivor pension in respect of a worker's death.

(2) Where more than one person qualifies for a survivor pension as a spouse, the Board may apportion the survivor pension.

64 (1) Subject to subsections (2) and (3), any payment of compensation to a dependant child shall cease when the dependent child

(a) attains the age of eighteen years; or

(b) dies,

whichever is earlier.

(2) Where a dependent child is in full-time attendance

(a) at a secondary or post secondary educational facility approved by the Board; or

(b) in any other program of education approved by the Board,

the Board may make or continue to make payments of compensation to the dependant child up to the end of the school year in which the child attains the age of twenty-five years.

(3) Subject to subsection (4), where a dependant child is physically or mentally incapable of earning, the Board may pay compensation until the dependent child

(a) is, in the opinion of the Board, physically or mentally capable of earning; or

(b) dies,

whichever is earlier.

(4) The Board shall pay compensation pursuant to subsections (2) and (3) only as long as, in the opinion of the Board, the worker might reasonably have been expected to continue to support the child.

65 Where the Board

(a) pays compensation to more than one of a worker's dependants; and

(b) ceases to pay compensation to any one of the dependants,

the remaining dependant or dependants are entitled to receive the amount of compensation they would have received had they been the only dependant or dependants entitled to compensation at the time of the death of the worker.

66 (1) Where the Board is paying a survivor pension, the Board shall reserve an amount equal to five per cent of the survivor pension to provide an annuity for the surviving spouse.

(2) The amount reserved pursuant to subsection (1) shall be paid and administered in accordance with Sections 51 to 58.

67 Where any person

(a) is entitled to be paid a survivor pension or a dependent-child benefit as a result of the death of a worker; and

(b) subsequently becomes entitled to be paid a survivor pension or a dependent-child benefit as a result of the death of another worker,

that person shall be paid only the greater of the survivor pensions or dependent-child benefits.

68 (1) The Board may request the permission of any dependant or dependants to have an autopsy performed and, where the dependant or dependants refuse to permit the autopsy, the Board may refuse any claim for compensation made pursuant to this Part.

(2) Notwithstanding subsection (1), any request made by the Board for an autopsy must be made prior to the time the body of the worker is buried.

(3) The expenses of the autopsy shall be paid out of the Accident Fund.