Highlights of Noteworthy Decisions

Decision 731 15
M. Keil
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (review) (material change in circumstances)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan) (earnings above statutory maximum)

The worker suffered a low back injury in February 2000, for which the Board granted a 29% NEL award. In April 2006, the Board granted entitlement for psychotraumatic disability and, at the final LOE review, granted full LOE benefits. In 2012, the Board became aware that the worker had been receiving CPP disability benefits since 2003. The worker appealed a decision of the Appeals Resolution Officer confirming offset of LOE benefits by the amount of the CPP benefits.

Under s. 44(2.1)(a) of the WSIA, the Board may review LOE benefits more than 72 months after the injury if, before expiry of the 72-month period, the worker failed to notify the Board of a material change in circumstances. The Board found that the entitlement to CPP disability benefits was a material change in circumstances that occurred before expiry of the 72-month period and that the worker had failed to notify the Board of the material change.
The worker submitted that he was a high wage earner, whose pre-accident earnings exceeded the statutory maximum and that it was not appropriate to offset LOE benefits by the amount of the CPP disability benefits because, even when totalling the LOE benefits and the CPP benefits, the sum did not restore the worker's actual pre-accident income. However, the Vice-Chair stated that there is no provision in the WSIA to allow high wage earners to maintain full LOE benefits and CPP disability benefits with no offset.
The worker submitted that his LOE benefits should only be offset by half of the CPP disability benefits. However, the Vice-Chair found that the worker's compensable conditions were the predominant cause of his disability. In the circumstances, the Vice-Chair concluded that the worker's LOE benefits should be offset by 90% of the CPP disability benefits.
The appeal was allowed in part.