- Loss of earnings {LOE} (calculation) (Canada Pension Plan)
- Loss of earnings {LOE} (review) (after seventy-two months) (significant temporary deterioration)
The worker appealed a decision of the ARO, which concluded that the worker's Loss of Earnings (LOE) benefits were subject to an offset for 80% of the Canada Pension Plan (CPP) disability benefits received by the worker, effective June 25, 2016. The issues under appeal were: a) whether the worker's LOE benefits should be offset, and, b) if the worker's LOE benefits should be offset by CPP disability benefits, effective June 25, 2016, what was the appropriate percentage of offset?
The Vice-Chair allowed the appeal, in part.OPM Document No. 18-03-06 provides policy guidance to the effect that an LOE benefit can be reviewed by the Board within 24 months of a NEL processing date that occurs more than 72 months after the injury date, if the NEL determination or redetermination confirms a significant deterioration of a permanent impairment. This is also set out at s. 44(2.4.1) of the WSIA. As noted in Decision No. 2762/18, Tribunal case law supports a conclusion that the starting point for the review of LOE benefits post-72 months as a result of a significant deterioration may be the MMR date of a newly rated permanent condition. As a matter of policy, offset for CPP disability benefits is not to predate notification of entitlement.The Vice-Chair found that it was permissible for the Board to have reviewed the worker's LOE benefits and apply a CPP disability benefits offset, effective June 25, 2016. The effective end date for permissible review would have been October 30, 2021, being 24 months after the date on which the Board determined the degree of permanent impairment in accordance with section 47. The Board's review of LOE benefits, effective June 25, 2016, fell within this time for review, which was October 8, 2014 to October 30, 2021. The worker's appeal on the issue of whether LOE benefits should be offset effective June 25, 2016 was accordingly denied.OPM Document No. 18-01-13 directs that if it is not possible to make a determination of the medical significance of the injuries/diseases contributing to the allowance of CPP disability benefits, the CPP disability benefits are to be apportioned equally between the work-related and non-work-related injuries/diseases. An accurate percentage of medical significance as between the work-related and non-work-related injuries/diseases could not be made in this case. The Vice-Chair decided to apportion the worker's CPP disability benefit entitlement equally between the work-related and non-work-related injuries/diseases. The worker's LOE benefits were to be subject to a 50% CPP disability benefit offset from June 25, 2016.