Highlights of Noteworthy Decisions

Decision 1807 21
31/03/2022
K. Jepson - C. Sacco - Z. Agnidis
  • Permanent impairment {NEL} (degree of impairment) (psychotraumatic disability)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Board Directives and Guidelines (work reintegration)

The worker was employed as a correctional officer and made a claim for PTSD resulting from a cumulative series of incidents at work. The issues on appeal were: whether the Board correctly offset the worker's CPP disability benefits from his LOE benefits, and the correct quantum of his NEL award for PTSD.

The Panel found that the offset of CPP disability benefits and the NEL rating were both correct.
The Panel clarified that the worker's appeal concerned an exception to the CPP offset contained in Board policy, which provides that CPP disability benefits will not be used to offset LOE benefits while a worker is "cooperating in work reintegration activities." The Panel agreed with the ARO's interpretation of this policy, that "cooperating in work reintegration activities" is intended to mean active involvement in such activities - for example, attending educational upgrading, re-training, or engaged in a work trial. The Panel stated that the CPP policy should not be construed in an overly broad fashion, as the exception is a generous one, and the purpose of the policy is to avoid double compensation, and to encourage workers to participate in return to work activities if they are not considered unemployable under the workers' compensation regime.
In this case, there was no evidence of the worker being involved in such activities. The Panel acknowledged that the worker was involved in ongoing medical treatment, and recognized that, while this may be a necessary precursor for return to work activities, it was not, in itself, a work reintegration activity within the meaning of the CPP policy section at issue. The fact that the worker was not found to be non-cooperative did not by default mean the worker was deemed to have been cooperative with work reintegration activities within the intended phrase of the CPP offset policy exception. The Panel also noted that it did not matter if the worker was considered "unemployable" by his doctors, as whether on medical advice or not, the worker was not actively engaged in work reintegration activities for the period of time in question.
The Panel also upheld the worker's NEL rating for PTSD. It stated the worker's cognitive deficits were most likely mild to moderate, as opposed to severe, because he was engaged in the planning and execution of home renovation projects, which demonstrated a reasonable ability to plan, focus and concentrate. The Panel also identified that one of the factors pointed to by the worker was a lack of socialization; however, it appeared that this arose primarily out of the worker's inability to work (a change in circumstances) as opposed to his psychological condition. In addition, the worker's aversion to seeing others was more related to his desire to avoid answering questions about his condition, which was not the same as social aversion emanating from his PTSD.
The Panel stated that the Application of the Mental and Behavioural Disorders Rating Scale is not a mathematical exercise, nor is it a mechanical process of mapping statements from psychological reports onto the Rating Scale. The nature of the scale precludes such an approach. In this case, the psychological reports recorded varying degrees of symptoms from one assessment visit to the next which further demonstrated that specific sentences or passages could not be easily relied upon in isolation from the overall medical reporting and testimony. On the whole, the worker's psychotraumatic disability corresponded more closely with the lower end of the Moderate Impairment rating category, with some characteristics touching on Class 3 descriptors. The appropriate rating therefore fell correctly at the high end of the Mild Impairment category at 15%.