APPEALS RESOLUTION OFFICER DECISION
DECISION NUMBER: 20240019
OBJECTING PARTY: worker
REPRESENTED by: worker representative
RESPONDENT: employer – not participating
HEARING: HEARING IN WRITING
HEARD by: c. goegan, appeals resolution officer
ISSUE
The worker is objecting to the October 20, 2023 decision of the Case Manager offsetting 100% of the worker’s Canada Pension Plan Disability (CPP-D) benefits from the loss of earnings (LOE) benefits from February 26, 2021.
BACKGROUND
The background details of the claim have been extensively documented in Appeals Resolution Officer (ARO) decisions dated July 12, 2017, November 18, 2019, November 19, 2021, March 31, 2022 and March 14, 2023 as well as an October 3, 2023 Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision. Therefore, it is not necessary for me to repeat them in detail. I will however, provide some brief information about the claim in order to place the present issue in context.
On September 6, 2016, this then 56-year old aircraft maintenance engineer was a passenger on a plane that made a hard landing. He sustained a low back injury (L1 burst fracture) as a result. The worker also claimed entitlement to a left shoulder injury that was denied in the July 12, 2017 ARO decision.
In November 2019 the worker received a 22% Non-Economic Loss (NEL) benefit for a permanent low back and neurogenic bladder impairment. The worker’s whole person NEL award was increased to 30% in August 2020 to account for a permanent psychological impairment.
The worker was provided with Work Transition (WT) services to assist them in returning to work in the general labour market. A WT plan was created to the suitable occupation (SO) of customer service representative. The November 18, 2019 ARO decision determined the SO was suitable for both the worker’s physical and psychological conditions.
The worker completed the WT plan in February 2021 and the LOE benefits were adjusted from February 26, 2021 based on their ability to earn the determined full-time (40-hours per week) entry-level wages ($14.25 per hour) in the SO.
The November 19, 2021 ARO decision concluded the worker was not entitled to full LOE benefits from February 26, 2021. The ARO found the worker was employable and capable of working in the SO given both the physical and psychological impairments. The March 21, 2022 ARO decision confirmed the worker’s partial LOE benefits were paid appropriately following an annual review. The March 14, 2023 ARO decision determined the LOE benefits were correctly locked-in until age 65 based on the updated entry-level wages of $15 per hour for the SO of customer service representative.
In the October 3, 2023 decision, the WSIAT approved entitlement to a left shoulder injury. The WSIAT also found the worker was unemployable and granted full LOE benefits from February 26, 2021 until age 65.
The Case Manager implemented the WSIAT decision on October 20, 2023. With respect to the left shoulder, they determined the worker had reached maximum medical recovery by August 1, 2018 with a permanent impairment. The whole person NEL award subsequently increased to 34% to account for the left shoulder condition. In regards to the LOE benefits, the Case Manager noted the worker had been in receipt of CPP-D benefits since January 1, 2017. In an October 20, 2023 decision, the Case Manager offset the entire amount of the CPP-D benefits from the LOE benefit payments from February 26, 2021. The Case Manager later reconsidered and upheld the decision to offset 100% of the CPP-D benefits as they determined the CPP-D benefits were being paid solely because of the work-related injuries.
The worker, through their representative, objected to the October 20, 2023 decision of the Case Manager regarding the offset of CPP-D benefits from the LOE benefits and the matter was referred to the Appeals Services Division for consideration.
AUTHORITY
Operational Policy Manual
Published
18-01-09 – Canada Pension Plan (CPP) Disability Payments October 12, 2004
18-01-13 – Calculating CPP Offsets from LOE Benefits January 3, 2023
ANALYSIS
I carefully considered all of the available information, legislation and relevant operational policies in reaching this decision. For the reasons explained below, I find the Case Manager’s decision to offset 100% or the full amount of the CPP-D benefits from the LOE benefits from February 26, 2021 is appropriate.
The Worker’s Position
On the November 28, 2023 Appeal Readiness Form (ARF), the worker representative indicated his position on the issue in dispute was “CPP reduction”. The representative did not provide a specific argument or make any additional submissions for consideration in this appeal.
The Offset of CPP-D Benefits from LOE Benefits
Policy 18-01-09 (CPP Disability Payments) states that the WSIB will have regard for any CPP disability payments the worker receives for the injury when calculating benefit entitlement. To determine whether any CPP disability payments are in relation to the work-related injury, the WSIB examines any relevant information that may indicate the basis for such payments, in particular, any available clinical reports that guide the WSIB as to the nature of the work-related injury and its possible association with the CPP payments.
Policy 18-01-13 (Calculating CPP Offsets from LOE Benefits) stipulates that for LOE benefits prior to the final LOE benefit review, the WSIB starts offsetting CPP-D benefits from the date the worker is notified that they are entitled to monthly CPP disability benefits. The WSIB offsets CPP-D benefits from LOE benefits when it determines that the worker is not able to work (100% or full LOE benefits). If the worker is granted retroactive CPP-D benefits (benefits payable prior to the date of notification by the federal government), the retroactive CPP-D benefits are not offset from any past or future WSIB benefits.
The policy also states that CPP-D benefits are not used to offset LOE benefits while a worker is co-operating in return to work (RTW) activities.
When calculating LOE benefits, the WSIB generally offsets 100% of any CPP disability benefits paid to a worker in relation to the work-related injury or disease. The WSIB only offsets an amount which is less than 100% of CPP-D benefits when the CPP-D benefits are being paid to the worker for a combination of work-related and non-work-related conditions. If LOE benefits are granted as a result of an ARO or WSIAT decision, CPP-D benefits are offset from the date of notification of entitlement to CPP-D benefits, as long as the notification occurred before the final LOE benefit review.
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 (e.g., copy of the application to CPP and any accompanying health care reports, health care reports in the claim, or letters from CPP).
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. There is no reduction in the CPP offset if the worker has other work-related injuries/diseases which are contributing to the allowance of the CPP disability benefits.
In this case, the worker received notification from the Government of Canada on May 15, 2018 that their application for CPP-D benefits had been approved retroactive to January 2017. The worker received the notification well prior to the 72-month final LOE benefit review. Since the worker co-operated in the WT plan until February 26, 2021, there is no basis under Policy 18-01-13 (Calculating CPP Offsets from LOE Benefits) to offset any portion of the CPP-D benefits from the LOE benefits until that date. The policy confirms that CPP-D benefits are not used to offset LOE benefits while a worker is co-operating in RTW activities.
The WSIAT ultimately found the worker to be competitively unemployable and granted full LOE benefits from February 26, 2021 until age 65. Therefore, I find that pursuant to Policy 18-01-13 (Calculating CPP Offsets from LOE Benefits) the CPP-D benefits must be offset from the LOE benefits and the earliest date for the offset is February 26, 2021.
Having determined the CPP-D benefits must be offset from the LOE benefits and the earliest date for the offset is February 26, 2021, I next considered what portion of the CPP-D benefits should be offset from the LOE benefits. I interpret the worker representative’s statement of “CPP reduction” on the ARF to mean his positon is that no portion of the CPP-D benefits should be offset from the LOE benefits. Given the evidence before me however, I find the Case Manager’s decision to offset 100% or the full amount of the CPP-D benefits from the LOE benefits from February 26, 2021 is appropriate.
Policy 18-01-13 (Calculating CPP Offsets from LOE Benefits) directs decision-makers to review any relevant information that may indicate the basis for entitlement to CPP-D benefits in order to determine whether anything less than a 100% offset from LOE benefits is appropriate.
In this regard, I note the worker’s November 15, 2017 application for CPP-D benefits listed the work-related back, left shoulder and bladder conditions as the impairments that prevented them from working since September 6, 2016. The October 31, 2017 Service Canada Medical Report completed by Dr. Fagan (the worker’s family doctor) that accompanied the worker’s application for CPP-D benefits had the diagnoses of an L1 burst fracture (requiring surgery), a neurogenic bladder and a contused left rotator cuff.
After reviewing the worker’s application for CPP-D benefits and the accompanying Service Canada Medical Report completed by Dr. Fagan, I conclude the basis for entitlement to CPP-D benefits is entirely work-related. The worker has permanent impairments of both the low back (L1 burst fracture and neurogenic bladder) and the left shoulder which were the impairments listed by the worker and Dr. Fagan in their respective applications for CPP-D benefits. Neither the worker nor Dr. Fagan listed any non-work-related conditions in their documents. As such, I find the work-related injuries were the sole basis for entitlement to the CPP-D benefits and therefore, I also find it appropriate to offset 100% or the full amount of the CPP-D benefits from the full LOE benefits as of February 26, 2021.
In conclusion, I find the Case Manager’s decision to offset 100% of the CPP-D benefits from the LOE benefits from February 26, 2021 to age 65 following the October 3, 2023 WSIAT decision is appropriate.
CONCLUSION
I conclude the Case Manager’s decision to offset 100% of the CPP-D benefits from the LOE benefits from February 26, 2021 to age 65 is appropriate.
The worker’s objection is denied.
DATED March 15, 2024
C. Goegan Appeals Resolution Officer Appeals Services Division