WORKPLACE SAFETY AND INSURANCE BOARD
APPEALS RESOLUTION OFFICER DECISION
decision number:
20150094
DECISION DATE:
January 20, 2015
OBJECTING PARTY:
Worker
REPRESENTED by:
Worker Representative
RESPONDENT
Employer (not participating)
HEARING:
Hearing in Writing
HEARD by:
R. Sheridan, Appeals Resolution Officer
ISSUE: Offset of Canada Pension Plan (CPP) full disability benefits from WSIB loss of earnings (LOE) benefits.
BACKGROUND:
On March 10, 2005 this then 48-year-old worker sustained injuries to his head and cervical spine when an overhead door came down striking him on the head. At the time of injury the worker had been employed with (the company) as an oiler/greaser since August 15, 1988.
The initial diagnosis was for a right cervical strain. Treatment post-accident was conservative.
On September 29, 2011 a 23% Non-economic Loss (NEL) award was granted for the cervical spine.
On March 10, 2011 the loss of earnings (LOE) benefits were locked in until age 65.
In a decision rendered on May 7, 2013 the Workplace Safety and Insurance Appeals Tribunal (WSIAT) allowed entitlement for a psychological condition and full loss of earnings (LOE) benefits from February 21, 2008 and ongoing.
On June 13, 2013 a 15% NEL award was granted in recognition of the psychological impairment.
In determining the quantum of LOE benefits it was noted that the worker was in receipt of Canada Pension Plan (CPP) full disability benefits from April 2011 for the cervical condition.
As a result the locked in LOE benefits were offset by the amount of the CPP benefits.
On November 18, 2014 the worker formally objected to the CPP offset of the LOE benefits.
RESOLUTION METHOD AND PROCESS:
On November 18, 2014 the worker, through his representative, requested that a decision in writing be rendered.
The employer participant form was not returned regarding this objection.
This decision is therefore based on the information as contained in the Board record and as argued by the worker representative through the original objection form.
AUTHORITY:
Policy No: 18-01-13: Calculating CPP/QPP Offsets from FEL/LOE Benefits
Policy No: 18-03-06: Final LOE Benefit Review
ANALYSIS:
The worker representative argued through a 4 page submission accompanying the Intent to Object Form that the worker is on long term disability through Great West Life and that they offset his benefits by the CPP amount and to have the WSIB further offset the worker’s LOE benefits by the CPP represents an absurd and unfair application of policy.
It was further argued that since the LOE benefit lock in date was March 10, 2011 and CPP benefits allowed on April 19, 2011, in accordance with policy, the CPP benefits should not be used to offset the LOE benefits.
Based on my review of the applicable policies and circumstances of this case I find that the LOE benefits have been correctly offset by the CPP benefits in accordance with policy stipulations.
Policy18-01-13, Calculating CPP/QPP Offsets from FEL/LOE Benefits, stipulates:
“If the date of notification of entitlement to CPP disability benefits occurs after the final review, the WSIB may only offset the CPP disability benefits from the FEL/LOE benefits in exceptional cases.
Exceptions
The WSIB may review the FEL/LOE benefits after the final review if the worker suffers a significant deterioration in his/her work-related condition. In these cases, the receipt of CPP disability benefits is considered when reviewing the FEL/LOE benefits.
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.”
Policy 18-03-06, final LOE benefit review, stipulates:
“The WSIB shall not review a worker’s loss of earnings (LOE) benefit more than 72 months after the date of the worker’s injury unless after the 72-month period expires, the worker suffers a significant deterioration in his or her condition that
results in a redetermination of the degree of permanent impairment
results in an initial determination of a permanent impairment
is likely, in the WSIB’s opinion, to result in a redetermination of the degree of permanent impairment.”
Based on the date of accident the lock in date for any LOE benefits was March 10, 2011.
The worker was granted CPP full disability benefits on April 19, 2011 which was after the lock in date.
The representative is correct in that the policy regarding offsetting CPP benefits does at one point indicate that where the where LOE benefits are granted based on a WSIAT decision that CPP disability benefits are offset from the date of notification of entitlement to CPP disability benefits, as long as the notification occurred prior to the final review.
However as the WSIAT decision also allowed for psychological entitlement and a related NEL award this allowed for a review of the LOE benefits after the lock in date as there was a significant deterioration which resulted in an initial determination of a permanent impairment.
In accordance with policy the worker’s LOE benefits must then be offset by the amount of the CPP benefits.
CONCLUSION:
I conclude that that the LOE benefits have been correctly off set by the CPP benefits in accordance with policy stipulations.
The worker’s objection is, therefore, denied.
Dated : January 20, 2015
R. Sheridan
Appeals Resolution Officer
Appeals Services Division