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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 233 13
7/3/2013
R. McCutcheon - B. Young - M. Ferrari

  • Loss of earnings {LOE} (calculation) (Canada Pension Plan)

A machine operator suffered a compensable injury in June 2001. The Board granted a 32% NEL award for thoracic and lumbar strain. The Board also granted entitlement for psychotraumatic disability and rated that permanent impairment at 50%. The combined NEL award was 66%, which entitled the worker to a personal care allowance as a severely impaired worker. The Board determined that the worker was competitively unemployable and granted full LOE benefits. The worker also received CPP disability benefits. The worker appealed a decision of the Appeals Resolution Officer finding that the LOE benefits should be offset by the full amount of the CPP disability benefits.
The Panel agreed with Decisions No. 171/11 and 2271/10, that there should be full offset even if there are some non-compensable conditions if those non-compensable conditions are greatly overshadowed by the importance of the compensable conditions with respect to the worker's overall functional disability.
The Panel also noted Decision No. 1311/11, in which it was determined that the compensable conditions were the predominant cause of the worker's inability to work and that it was appropriate to offset at least 90% of the CPP award from the LOE benefits. The Panel noted that the worker in that case was requesting a reduction of the offset, that the worker's appeal was dismissed, that there was no cross-appeal by the employer and that the question of increasing the offset was not before the vice-chair in that appeal.
In this case, the CPP medical report listed primary diagnoses and secondary conditions. The Panel found that the secondary conditions, such as deep vein thrombosis, did not justify a reduction of the offset because they were not listed as main conditions and because they did not have an impact on the worker's ability to secure and sustain employment. The only non-compensable medical conditions listed in the primary diagnoses were cervical strain and degenerative disc disease. Given the 66% NEL award and the classification of the worker as a severely impaired worker due to the compensable accident, it was evident that the compensable disabilities were the predominant and, indeed, the overwhelming cause of the worker's inability to work.
The Panel concluded that it was appropriate to offset the LOE benefits by the full amount of the CPP award. The appeal was dismissed.