Thursday, August 13, 2009

CPP and WSIB a new approach?

Writing was put on the back burner for a while so that I could reorganize the office to serve you our clients better.

The Tribunal recently decided a case involving a worker who originally sustained a mild concussion, bilateral shoulder strain, a neck injury, and a fracture of the spine. It was later determined that the worker recovered from the physical injuries but continued to suffer from a psychological injury. The worker was granted a 25% Non-economic Loss (NEL) award for this psychological impairment. The worker was also found unable to work and was granted a full FEL (Future Economic Loss Award) and was paid 100% loss of earnings.

The worker was also granted CPP disability benefits. The Board offset 100% of the CPP benefits from the FEL benefits.

Normally the Board and the Tribunal look at the nature of the medical conditions that were recognized by the Canada Pension. If CPP only considered compensable conditions then these benefits would be offset at a rate of 100% from the WSIB benefits. If however, CPP considered other conditions the offset is prorated.

So if for example the WSIB granted benefits for a back injury and found a worker permanently unemployable as a result of this condition but on the CPP application there were other medical problems contributing to the worker's inability to work such as carpal tunnel and a heart condition it is likely that the CPP benefits would be offset by only 30 to 50% rather than 100%.

In this case however, the Tribunal took a broader approach and looked at the impact of the workplace accident.

The Tribunal found that a review of the medical report in support of the worker’s CPP application, clearly related the worker’s disability to the workplace injury of January 16, 1997 and not to any other cause. They did not accept the argument that because the CPP application lists the physical conditions that WSIB had determined were resolved that they could not consider an offset. What was more important the CPP disability benefits were being paid for
the work-related injury, notwithstanding the fact that it has been granted on an organic rather
than non-organic basis.

What troubles me with this decision is that the WSIB never considered the physical injuries permanently injured as a result of the accident. So how could they continue to contribute to a person's unemployablity if these injuries were seen by WSIB to have been resolved. I hope that this case is just an anomaly. Otherwise what happens if WSIB denies initial entitlement to various injuries but CPP recognizes that the worker has ongoing problems with that denied area of injury? Certainly, those problems should be seen as non compensable.