Highlights of Noteworthy Decisions

Decision 2076 14
S. Netten
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker suffered a low back injury in 2000. The Board granted a 48% NEL award for low back impairment and psychotraumatic disability. At the final LOE review in 2006, the Board granted the worker full LOE benefits. In 2011, the NEL award was increased to 51% due to significant deterioration of the worker's condition. In 2012, the Board learned that the worker had been receiving CPP disability benefits since 2007. Based on the provision that LOE benefits may be reviewed after 72 months in light of the NEL redetermination, the Board recalculated LOE benefits, as of 2013, to offset the LOE benefits by the amount of CPP disability benefits. The worker appealed.

The Board treats the offset of LOE benefits by the amount of CPP disability benefits as a review of LOE benefits that is constrained by the terms of s. 44 of the WSIA. Based on Board policy, a worker who is receiving LOE benefits at the date of the final LOE review and who subsequently obtains CPP disability benefits may receive benefits which, in combination, exceed pre-accident average earnings. That was the situation for the worker in this case from 2007 until 2013. During that period, the worker received full LOE benefits and CPP disability benefits. However, the Board policy provides for a subsequent offset is there is a LOE benefit review after 72 months.
The worker submitted that there should be no review of LOE benefits after the NEL redetermination because the worker was already receiving full LOE benefits. However, the Vice-Chair found that offset for CPP benefits is clearly contemplated by the Board policy. In any event, an LOE review is not limited to situations that result in an increased benefit to the worker, even if triggered by a deterioration in the compensable condition.
The Vice-Chair concluded that the Board correctly reviewed the worker's LOE benefits and correctly recalculated the LOE benefits to account for the CPP disability benefits received by the worker. The appeal was dismissed.