Highlights of Noteworthy Decisions

Decision 3126 16
S. Netten
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

The worker suffered bilateral arm disablement in March 2005, for which she was granted a 10% NEL award. In May 2008, the Board granted the worker entitlement for chronic pain disability. The Board recognized permanent impairment for chronic pain disability and replaced the 10% organic award with 25% NEL award for chronic pain disability with an MMR date in October 2006.

In Decision No. 1455/13, the Tribunal found that the worker was entitled to redetermination of the NEL award for chronic pain disability, increased the NEL award to 35% and granted full LOE benefits.
In September 2013, the worker became entitled to CPP disability benefits. In 2014, the Board offset the worker's full LOE benefits by the amount of the CPP benefits, effective September 2013.
The worker appealed a decision of the Appeals Resolution Officer to offset the LOE benefits by the CPP benefits.
Decision No. 1455/13 found that the worker experienced a significant deterioration of her condition but did not make specific determination regarding the date of the significant deterioration or the permanent worsening date. The Vice-Chair reviewed Decision No. 1455/13 and the documentation on file, and found that the significant deterioration largely occurred in 2008 and that the permanent worsening date was in February 2009. Thus, the significant deterioration occurred prior to the final LOE review date in March 2011.
LOE benefits can only be reviewed after 72 months in specific circumstances set out in s. 44(2.1) of the WSIA. One aspect of LOE benefit calculation that results in continuing adjustments beyond the 72-month mark without constituting a review is annual adjustment based on indexing factors, mandated by s. 43(5) and (6). It is not clear from the language of the WSIA whether offset of CPP disability benefits, which is also mandated by s. 43(5), ought to be treated as a routine adjustment or as a review of LOE benefits constrained by the provisions of s. 44. The Board has accepted that it is a review. Board Operational Policy Manual, Document No. 18-01-03, on calculating CPP/QPP offsets from FEL/LOE benefits, provides that, if the date of notification of entitlement to CPP benefits occurs after the final LOE review, the Board may only offset the CPP benefits in exceptional cases, specifically, if there is significant deterioration of the worker's compensable condition after the final review.
In this case, the notification date of entitlement to CPP disability benefits was in September 2013, which was after the final LOE review. However, the significant deterioration occurred before the final review. Therefore, the exception allowing review of LOE benefits after the final review for significant deterioration in s. 44(2.1)(c) did not apply, and a review of LOE benefits under s. 44(2.1)(c) was not allowed.
The worker was entitled to her full LOE benefits without offset of CPP disability benefits. The appeal was allowed.