Highlights of Noteworthy Decisions

Decision 1631 16
L. Gehrke - S. Sahay - S. Roth
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Loss of earnings {LOE} (review) (after completion of LMR plan)

The worker appealed a decision of the Appeals Resolution Officer offsetting his full LOE benefits by the amount of CPP disability benefits.

The worker suffered a back and neck injury on June 30, 2005. In 2009, the Board granted full LOE benefits and a 30% NEL award for chronic pain disability, increased to 35% in 2010. In May 2011, the Board asked the worker whether he would be willing to participate in work transition services. The worker indicated that he was willing to participate. The 72-month LOE review period ended June 30, 2011.
On July 13, 2011, the Board nurse case manager indicated that the worker' file was ready for work transition services. In September 2011, the worker was referred for an assessment. In October and November 2011, the worker participated in the assessment, and he also subsequently participated in a pain management program.
In January 2012, the worker was granted CPP disability benefits.
In June 2012, the Board concluded that the worker was not employable. In December 2013, the Board confirmed full LOE benefits with the deduction of CPP disability benefits.
Section 44(2.1)(b) of the WSIA allows review of LOE benefits more than 72 months after the date of the injury if the worker was provided with a labour market re-entry plan and the plan was not complete when the 72-month period expired.
Board policy provides that a work transition plan may include cases where a work transition assessment has been arranged or even completed, with the intention to provide the worker with a work transition plan that would allow for deferral.
The Panel found that there was no work transition plan or assessment arranged or in progress at the 72-month review date on June 30, 2011. In May 2011, the Board had inquired as to the worker's willingness to co-operate with a work transition assessment. However, there was no discussion of any particulars. The Board did not refer the file for work transition services until July 13 and did not re-activate the worker's file until September. The re-activation in September and the participation in October and November were all well after the final review date on June 30.
Since there was no plan or assessment arranged or in progress at the final review date, the exception in s. 44(2.1)(b) allowing review of LOE benefits after 72 months did not apply. There was no authority to review LOE benefits after that time in order to offset the LOE benefits by the amount of the CPP disability benefits.
The appeal was allowed.