Highlights of Noteworthy Decisions

Decision 2341 17
L. Gehrke - B. Wheeler - G. Carlino
  • Loss of earnings {LOE} (review) (after seventy-two months)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Apportionment (non-economic loss) (preexisting conditions)

The worker suffered a shoulder injury in December 2003, for which he was granted a 13% NEL award. The Board granted full LOE benefits at the final review in December 2009. In November 2011, the Board granted the worker initial entitlement for psychotraumatic disability. In May 2012, the worker was advised that he had been granted CPP disability benefits, retroactive to November 2007. In August 2012, the Board assigned a 20% NEL rating for permanent psychotraumatic disability, with an MMR date in July 2009.

The Board offset the worker's LOE benefits by the amount of the CPP disability benefits, effective December 2009. The worker appealed regarding the offset and regarding the quantum of the NEL award for psychotraumatic disability.
On the evidence, the worker was entitled to a 30% rating for psychotraumatic disability. He had a minor pre-existing condition that did not impair his daily functioning. The worker was entitled to the 30% NEL award for psychotraumatic disability without reduction.
The Panel agreed with Decision No. 891/15, that changes to the worker of s. 44(2.1)(c) effective July 1, 2007, clarify that, for review of LOE benefits after the 72 months, both the deterioration of the worker's condition and the redetermination of the degree of permanent impairment must take place after the 72-month date.
In this case, the CPP entitlement and the circumstances that underlay that entitlement existed before the 72-month review date. Entitlement for psychotraumatic disability was granted by the Board after the final LOE review date but the MMR was prior to the final LOE review date. Thus, the significant deterioration that led to granting of entitlement for psychotraumatic disability occurred prior to the final LOE review date. Accordingly, review of LOE benefits under s. 44 was not permitted.
The worker was entitled to full LOE benefits without offset for CPP disability benefits.
The appeal was allowed.