Highlights of Noteworthy Decisions

Decision 510 14
S. Netten
  • Future economic loss {FEL} (calculation) (Canada Pension Plan) (preexisting compensable condition)

The worker suffered a neck injury in 1993, for which he was granted a 30% NEL rating. The worker appealed a decision of the Appeals Resolution Officer offsetting the worker's FEL award by the full amount of CPP disability benefits, from November 1995 until the worker reached age 64 in June 1999.

The worker had previously suffered a shoulder injury in 1992, for which he was granted a 10% NEL award, but no FEL award because he returned to work with no wage loss. The worker's FEL benefits were granted under the 1993 claim. In determining FEL benefits, s. 43(7) of the pre-1997 Act requires the Board to have regard any CPP disability benefits the worker receives for the injury. This plainly refers to the injury for which the FEL benefits were granted.
More recent Board policy appears to require full offset where CPP benefits were paid for other work-related injuries. Decision No. 52/07 noted that this appears to go beyond the limits of the legislation. In any event, that more recent policy was not applicable in this case, which involves FEL benefits from 1995 to 1999.
The Vice-Chair concluded that the worker's FEL benefits can be offset by the CPP disability benefits received for the neck injury only, and not for the prior shoulder injury. In the circumstances, the FEL benefits should be offset by 50% of the CPP disability benefits. The appeal was allowed.