Appellant argued some disability benefits were related to pre-existing conditions
The New Brunswick Court of Appeal has upheld the decision to fully deduct Canada Pension Plan (CPP) disability benefits from workers' compensation benefits despite the appellant's argument that some disability benefits are related to pre-existing conditions.
In Bushey v. Workplace Health, Safety and Compensation Commission, 2023 NBCA 72, Mark Bushey has had deafness and left-eye blindness all his life. He worked as a full-time employee at Miramichi Regional Hospital until a workplace accident 2015 caused injuries to his left shoulder and neck. His claim for benefits under the Workers' Compensation Act was accepted. Furthermore, since efforts at rehabilitation and a return to work proved unsuccessful, Bushey qualified for long-term disability (LTD) benefits under the act.
Bushey applied for CPP disability benefits, which were eventually approved with conditions related to psychogenic pain, depression, and anxiety.
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In New Brunswick, when an injured worker qualifies for workers' compensation and CPP disability benefits, provincial legislation requires a proportional reduction of the workers' compensation benefits.
Workplace Health, Safety and Compensation Commission determined that the conditions related to psychogenic pain, depression, and anxiety were fully associated with Bushey's workplace injury. The practical implication of that determination for Bushey was that 100 percent of his retroactive and ongoing CPP disability benefits would be deducted from his workers' compensation benefits.
Bushey contended that at least a portion of his CPP disability benefits relate to long-term conditions that predate his workplace injury by many years. He argued that the compensation for depression and anxiety was at least partly tied to his deafness and blindness, which had nothing to do with his workplace injury. Consequently, the deduction should not be 100 percent. Bushey appealed to the NB Court of Appeal, seeking to overturn the Commission's decision.
In his appeal, Bushey argued that the Commission failed to gather comprehensive documentation from Employment and Social Development Canada, which was needed to make a fair and informed decision on his claim.
The appeal court noted that the "single most frustrating aspect of this case centers on the difficulty experienced by Mr. Bushey and the Commission in obtaining highly relevant information from Employment and Social Development Canada."
Bushey argued that the Commission should have done more, but it was unclear to the court what more could have been done. There was sufficient evidence in the record to establish that the Commission did work diligently to secure Bushey's information from Employment and Social Development Canada, with limited success.
The court acknowledged that the Commission attempted to collect information to determine the amount of CPPD benefits to be deducted from Bushey's LTD benefits. Despite its attempts, the Commission failed to receive the information required to determine the amount of CPPD benefits attributable to the compensable work injury. The Commission decided the full amount of CPPD benefits would be deducted using the available information.
While the court was sympathetic to Bushey's situation, the Commission and the Workers' Compensation Appeals Tribunal were constrained in their respective reviews because of a lack of information. They were required to adjudicate the claim using the evidence before them. The court noted that the policy, in effect, required the Commission to use "available information to reasonably determine the amount of CPPD that was paid in respect to the injury or recurrence of injury."
The court further noted that some medical evidence in the record indicated that Bushey's depression and anxiety predated the compensable injury." However, the court observed that the tribunal faced the inarguable fact that Bushey was working full-time up to the workplace accident despite his significant medical challenges.
The court concluded that Bushey had not established any error on the part of the Commission that would allow for appellate intervention. Accordingly, the court dismissed his appeal.
