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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 3176 18
2/5/2019
S. Peckover

  • Future economic loss {FEL} (calculation) (Canada Pension Plan)
  • Future economic loss {FEL} (review) (after sixty months)

The worker was injured in March 1992, when she tripped and fell. The Board granted the worker a 29% NEL award for permanent impairment. In 2012, the Board found that the worker had entitlement for chronic pain disability, and replaced the organic NEL award with a 10% NEL award for chronic pain disability. On objection by the worker, the Board increased the award for chronic pain disability to 20%. In Decision No. 2501/15, the Tribunal confirmed the 20% award for chronic pain disability, and found that the worker was entitled to full FEL benefits as of R2 final FEL review in December 1998.
The worker was granted CPP disability benefits in February 2003, retroactive to January 2000. As this was after the final FEL review, the Board did not offset FEL benefits by the amount of CPP benefits, until there was evidence of significant deterioration when it processed the worker's NEL award for chronic pain disability in 2012.
The worker now appealed a decision of the Appeals Resolution Officer confirming offset of the FEL benefits by the amount of the CPP benefits.
The MMR date for the chronic pain disability was in the 1990s, although it was not processed until 2012. Section 44(2.1)(d) of the WSIA allows the Board to adjust FEL benefits after the final review when a worker experiences a significant deterioration that results in determination of a permanent impairment. However, the effective date for s. 44(2.1)(d) is July 1, 2007. The significant deterioration in the worker's condition occurred well before that date. Section 44(2.8) provides that s. 44(2.1)(d) applies to a worker who suffers a significant deterioration on or after July 1, 2007. Accordingly, the Board did not have authority to review the worker's FEL benefits under s. 44(2.1)(d).
If the significant deterioration took place before January 1, 1998, the applicable statutory provision would be s. 43(13) of the pre-1997 Act, which allowed review of FEL benefits after R2 only if there was a reconsideration of the percentage of permanent impairment that resulted in an increased permanent impairment, which was not the situation in this case.
If the significant deterioration took place after January 1, 1998, the applicable provision is s. 44 of the WSIA prior to the amendments of November 25, 2002. At that time, s. 44 allowed review of FEL benefits if the worker failed to notify of a material change in circumstances before the 60-month period expired or if the worker engaged in fraud or misrepresentation regarding the claim. Again, those circumstances did not apply in this case.
Recent Tribunal decisions have found that s. 44 of the WSIA does not preclude offsets that are a consequence of benefits being awarded by the Tribunal. Even if that finding were applied to this appeal, it would not allow the Board to review FEL benefits and deduct CPP because the offset would not be in accordance with Board Operational Policy Manual, Document No. 18-01-13, which provides for offset from the date of notification of entitlement to CPP disability benefits, as long as the notification occurred prior to the final review. In this case, the worker did not receive notification until February 2003, more than four years after the final review.
There is an exception in the policy allowing review of FEL benefits after the final review if the worker suffers a significant deterioration under Document No. 18-04-20. That document allows for review if the worker suffers a significant deterioration after the 60-month period expires. However, in this case, the worker suffered the significant deterioration before the 60-month period expires and, accordingly, the exception does not apply.
The Vice-Chair concluded that, in this case, there was no authority to review FEL benefits and deduct CPP. The appeal was allowed.