Highlights of Noteworthy Decisions

Decision 274 23
S. Peckover
  • Medical report (payment for)
  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)
  • Loss of earnings {LOE} (review) (final)

The issues under appeal were: a) the quantum of the offset of the worker's LOE benefits with respect to her CPP Disability benefits; and, b) entitlement to reimbursement for the psychological report dated October 10, 2017.

The appeal was allowed, in part.
The worker argued that since the LOE benefits were granted after the lock-in, there should be no CPP Disability off-set at all. It was argued that OPM Document No. 22-01-02 says "may", not must, and therefore a review was not mandatory. The Vice-Chair noted that while the use of the word "may" in OPM Document No. 22-01-02 does indicate that Board and Tribunal decision-makers have a level of discretion when applying this policy, they are nonetheless bound by the WSIA and the imperative to make decisions based on the particular circumstances of the case before them. Decision No. 800/07 states that the use of statutory discretion must be justified by the facts and circumstances of the case under examination.
In regards to the merits and justice provision, it was noted that there are two Tribunal decisions that have used this provision to find that a full CPP offset was not warranted (see Decisions No. 1625/00 and 40/06). In these circumstances, imposing a full deduction would have led to an unreasonable outcome. These circumstances did not exist in the present case. The date of the decision granting the retroactive LOE entitlement was after the 72-month lock-in LOE benefit was granted retroactively. The goal in granting retroactive benefits is to put the worker in the position they would have been in had the correct decision been made previously. This did not trigger the application of the merits and justice provision.
Moreover, the CPP Disability benefits were allowed based on all of the worker's medical conditions, rather than simply the compensable ankle and/or shoulder. It was necessary to include all of those conditions in looking at the quantum of the CPP Disability offset. Given the various non-compensable conditions listed, and considering their cumulative effect on the worker's ability to work, the Vice-Chair found that the offset should be 25%. The Vice-Chair also found there was no entitlement to payment of the medical report, as the Board was under no obligation to pay for a report that had no bearing on the worker's claim.