Highlights of Noteworthy Decisions

Decision 99 14
J. Moore
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan) (preexisting compensable condition)

The worker suffered a neck injury in 1986 for which he was granted a 20% pension, a low back injury in 1998, for which he was granted a 23% NEL award and a neck injury in 2007 for which he was granted a 5% NEL award. He stopped working in 2010 due to deterioration of his condition. Neither his pension nor his NEL awards were increased after he stopped working but the Board did grant full LOE benefits. The worker appealed a decision of the Appeals Resolution Officer offsetting the full amount of CPP disability benefits received by the worker from the LOE benefits.

The worker submitted that the deterioration leading to the full LOE benefits should be considered non-compensable because the pension and NEL awards were not increased and that, therefore, there should be no offset of the LOE benefits by the amount of the CPP benefits. However, the Vice-Chair noted that the extent of permanent impairment is only one factor in determining the impact of a condition on employability. In this case, notwithstanding the absence of an increase in the pension or NEL awards, the medical evidence showed deterioration in the compensable neck and back conditions sufficient to preclude further employment. Consequently, the conditions for which the CPP benefits were granted were the same conditions for which full LOE benefits were granted.
Section 43(5) of the WSIA requires the Board to take into account CPP disability benefits in respect of the injury for which LOE benefits are granted. The LOE benefits were granted in respect of the 1998 back injury and not in respect of the 1986 neck injury which was governed by the pre-1989 Act. Thus, there could be no offset of the LOE benefits related to the neck injury.
On the evidence, the CPP benefits were granted for both the neck and back injuries equally. Therefore, the worker's LOE benefits should be offset by only 50% of the CPP disability benefits.
The appeal was allowed in part.