Highlights of Noteworthy Decisions

Decision 1639 15
J. Noble
  • Estoppel
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker suffered a shoulder injury in 2001. The Board granted a 51% NEL award for organic and non-organic impairment, and full LOE benefits. The worker began receiving CPP disability benefits in 2004. The worker appealed a decision of the Appeals Resolution Officer offsetting the LOE benefits by the full amount of the CPP disability benefits.

The worker submitted that the Board had advised her that she would receive full LOE benefits to age 65 and that, based on the doctrine of equitable estoppel, the Board could not now offset her benefits by the amount of CPP disability benefits.
Both the WSIA and Board policy provide that LOE benefits must be offset by the amount of CPP disability benefits. The Vice-Chair agreed with previous Tribunal decisions that the doctrine of equitable or promissory estoppel does not give the Tribunal authority to grant a remedy that is not permitted by the statute and that the doctrine cannot be used against the Crown if the effect is to estop a public body from the performance of a statutory duty or from the unfettered exercise of its statutory discretion.
The worker relied on a 1923 decision of the Supreme Court of Canada but the Vice-Chair distinguished that case on the basis that it dealt with enforcement of a condition in a private insurance contract, not the provisions of a statute.
The Board correctly offset the worker's LOE benefits by the amount of her CPP disability benefits. The appeal was dismissed.