WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
DECICION NUMBER: 20100154
OBJECTION BY: Worker
PARTICIPANTS: Worker, Worker’s representative, Employer
ISSUE
The worker objects to the decision of December 3, 2009 to adjust the loss of earnings (LOE) benefit to reflect Canada Pension Plan (CPP) disability benefits.
HOW THE ISSUE ARISES
On October 6, 2005 this now 41 year old worker sustained multiple soft tissue injuries when the elevator in which she was riding dropped and then rose suddenly. At the time of injury the worker was employed as a support assistant.
The worker continued to complain of headaches, and cervical, thoracic and lumbar pain. She went on to develop post-traumatic stress disorder and depression. Symptoms associated with the psychological impairment included anxiety, fatigue, weakness, impairment of concentration and memory, and a degree of psychosis. The worker was admitted to the CAMH psychological trauma program in February 2006. She was involved in a motor vehicle accident in March 2006 which exacerbated her headaches, neck pain and back pain.
The worker began a functional restoration program in September 2006. At discharge in November 2006 the worker continued to complain of pain in the neck, upper back and lower back. It was recommended the worker begin a gradual return to modified duties. Reporting from the psychological trauma program indicated the worker was having difficulty with the transition back to work. The worker discontinued work after a month, reporting severe headaches, dizziness, and a sense of being overwhelmed by the job. Arrangements were made for further psychological counselling.
Another transitional return to work program was arranged for August 2007. The worker tried taking the elevator to her tenth-floor workstation but learned that there had been problems with their operation. She began using the stairs but found that the climb exacerbated her neck and back pain. She increased her narcotic pain medication but found that it caused dizziness and cognitive problems which interfered with her job duties. The worker requested relocation to a lower floor. The attending psychiatrist imposed a permanent restriction on use of elevators in the worker’s worksite. In November 2007 the employer offered the worker a permanent job in a location which did not require use of an elevator. The worker began another transitional return to work in December 2007 but was unable to continue.
At a further psychiatric assessment in January 2008 the worker advised that neck pain and associated headaches were her most disabling conditions. She also reported depression, situational anxiety, depression, flashbacks and nightmares. The specialist opined that the worker was not emotionally resilient enough to return to the new workplace. The worker was treated at an in-patient traumatic stress recovery program for two months ending May 2008. At discharge, the worker did not consider herself capable of returning to work and this view was not disputed by her health practitioners.
At a two-day in-patient psychiatric assessment in October 2008, the worker was found to be at risk for suicide and in need of ongoing psychotherapy. Testing clearly demonstrated that the worker’s neck complaints were non-organic in origin. The worker’s condition was diagnosed as chronic pain disorder with psychological factors, including severe post-traumatic stress disorder and depression. Subsequent medical reports indicate that associated symptoms included diffuse pain, social isolation, marital problems, and impulsiveness. The attending psychiatrist advised in January 2010 that the worker remained unfit for any form of employment. The worker was found to have a permanent chronic pain impairment and, in January 2010, she was granted a 25% non-economic loss (NEL) benefit.
In June 2009 the worker applied for CPP disability benefits. Her application was granted. The LOE benefit was reduced by the value of the CPP benefit, except for an amount paid for children. The worker has objected to any reduction of the LOE benefit due to the CPP disability benefit.
AUTHORITY
18-01-13 – Calculating CPP/QPP Offsets from FEL/LOE Benefits
RESOLUTION METHOD & PROCESS
The worker representative requested review of the issue based on the record. The employer returned a participant form to confirm their interest in the matter.
ASSESSMENT OF THE EVIDENCE
Policy
When calculating LOE benefits, the amount of net average earnings the worker is able to earn in suitable and available employment or business after the injury must reflect any disability payments paid to the worker under the Canada Pension Plan (CPP) or the Quebec Pension Plan (QPP) in respect of the injury.
CPP disability benefits are monthly benefits paid, by the federal government, to individuals who have a disability which prevents them from working at any job on a regular basis. The disability may be caused by work-related or non-work-related injuries, diseases, or a combination of several injuries/diseases.
When calculating FEL/LOE benefits, the WSIB generally offsets 100% of any CPP disability benefits paid to a worker in relation to the work-related injury/disease. The WSIB does not offset the CPP disability benefits paid to the children of workers who are receiving CPP disability benefits and FEL/LOE benefits. The WSIB only offsets an amount which is less than 100% of CPP disability benefits when the CPP disability benefits are being paid to the worker for a combination of work-related and non-work-related injuries/diseases. If the WSIB determines, or if the worker indicates, that CPP disability benefits are being paid for both work-related and non-work-related injuries/diseases, the WSIB reviews any relevant information that may indicate the basis for entitlement to CPP disability benefits. Based on this information, the WSIB assesses the medical significance of all contributing injuries/diseases, assigns a percentage to each injury/disease based on the medical significance, and; offsets the percentage of the CPP disability benefits related to the work-related injury/disease. If the WSIB is unable to determine the medical significance of the injuries/diseases contributing to the allowance of the CPP disability benefits, the WSIB apportion the CPP disability benefits equally between the work-related and non-work-related injuries/diseases.
Assessment
In order to consider the worker’s request for reversal of the CPP disability benefit offset, it must be determined to what degree the CPP benefit was paid for work-related impairments. In making this determination, I reviewed the record and considered the evidence and submissions.
The worker was granted entitlement under chronic pain disability guidelines. Chronic pain disability is the term used to describe the condition of a person whose chronic pain has resulted in marked life disruption. Marked life disruption indicates the effect of pain on the worker’s activities of daily living, vocational activity, physical and psychological functioning, as well as family and social relationships. Operational policy requires that all components of the work-related impairment be considered in the CPD assessment, including organic, psychological, and psychiatric impairments. In the present case, the chronic pain disability included post-traumatic stress, anxiety, depression, suicidal ideation, non-organic neck and back pain, and features of fibromyalgia.
The worker’s application for CPP disability benefits included a description of her complaints and diagnoses. These included: chronic pain disorder; major depressive disorder with symptoms of suicidal ideation, insomnia, anhedonia, and impairment of concentration and memory; post-traumatic stress disorder; fibromyalgia, and; chronic neck, shoulder and low back pain.
All of the diagnoses and complaints described in the CPP application fall within the scope of the WSIB claim. As the application does not suggest the presence of any medical condition unrelated to the workplace injury, there is no basis for apportionment of the value of the CPP benefit.
The worker was granted a total CPP disability benefit of $1409.10 per month. Of this amount, $427.98 was paid for her children. The balance, $981.12, was the amount offset from the LOE benefit. As the entire portion of $981.12 was awarded for work-related conditions, it is appropriate to reduce the LOE benefit by the full amount. The worker’s request for reversal or reduction of the CPP offset is denied.
CONCLUSION
The worker’s objection is denied.
DATED October 7, 2010
D. Shepherd
Appeals Resolution Officer
Appeals Branch