Highlights of Noteworthy Decisions

Decision 270 13
S. Netten - E. Tracey - D. Gillies
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan) (retroactivity)

The worker suffered a back and neck injury in September 2007, for which she was granted full LOE benefits. She was granted a 25% NEL award for chronic pain disability, increased to 35% in November 2010. The worker was granted CPP disability benefits in July 2008. When the Board became aware of the CPP benefits in July 2010, it offset the worker's LOE benefits by the full amount of the CPP benefits, retroactive to July 2008. The worker appealed a decision of the Appeals Resolution Officer to offset the full amount of the CPP benefits and to make the offset retroactive to July 2008.

In addition to the back and neck problems, which were the worker's main complaints, there was also mild shoulder pathology, which was partially related to radiation from the compensable neck injury. Some Tribunal decisions have considered it appropriate to offset the full amount of CPP benefits where the importance of the non-compensable conditions was greatly overshadowed by the importance of the compensable conditions with respect to the worker's overall functional disability. However, in Decision No. 1311/11, the Tribunal found it appropriate to offset at least 90% of the CPP benefits when the precipitating cause of disability was the work accident, the predominant complaints related to the compensable injuries and the worker was able to work with the non-compensable problems. Applying Decision No. 1311/11, the Panel concluded that the worker's LOE benefits should be offset by only 90% of the CPP disability benefits.
Board policy was unequivocal that the offset must begin from the date of CPP benefits notification regardless of when the notification is reported to the Board. The Panel confirmed the retroactivity of the offset to July 2008.
The appeal was allowed in part.