Highlights of Noteworthy Decisions

Decision 3349 17 R2
20/03/2019
J. Noble
  • Reconsideration
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan) (retroactivity)

The worker suffered a neck injury in June 2007, for which the Board granted the worker partial LOE benefits. In Decision No. 1510/15, the Tribunal found that the worker was entitled to full LOE benefits from February 2010. In January 2016, the Board implemented the Tribunal decision, but offset the full LOE benefits by the amount of CPP disability benefits, as of May 2011, which was the date of notification of the CPP disability benefits. The worker appealed the offset of the LOE benefits by the amount of the CPP benefits. Decision No. 3349/17 found that the worker was entitled to full LOE benefits without offset of the CPP disability benefits. The Board applied for reconsideration of Decision No. 3349/17, on the grounds that it contained errors of law regarding application of Board policy and regarding applicability of s. 44 of the WSIA. In Decision No. 3349/17R, the Vice-Chair granted the Board's application to reconsider, finding that Decision No. 3349/17 erred since it did not apply the applicable Board policy, which indicates that there should have been an offset, and that this was not a review of benefits to which s. 44 applied.

The Vice-Chair now re-heard the appeal and found that the CPP disability benefits related to both compensable and non-compensable conditions and that the LOE benefits should have been offset by only 75% of the CPP disability benefits.
Regarding retroactivity of the offset, Board policy states that, when LOE benefits are granted as a result of an ARO decision or a Tribunal decision, the benefits are offset from the date of notification of entitlement to CPP disability benefits, as long as the notification occurs prior to the final review. The policy further provides that the retroactive portion of the CPP disability benefits is not offset.
In this case, the notification date of the CPP disability benefits was in May 2011. The effective date of the CPP disability benefits was in June 2009. Thus, the worker received some retroactive CPP disability benefits. In accordance with the Board policy, there was no offset of LOE benefits from June 2009 to May 2011. Rather, the Board correctly offset the LOE benefits by the CPP disability benefits as of the notification date in May 2011.
The Vice-Chair concluded that the worker's LOE benefits should be offset by 75% of CPP disability benefits as of May 2011. The appeal was allowed in part.