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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 2029 18
10/22/2018
J. Noble - R. Ouellette - C. Salama

  • Chronic obstructive lung disease
  • Smoking
  • Permanent impairment {NEL} (physical or functional abnormality or loss)
  • Pleural plaque

The Board granted the worker entitlement for pleural plaques, with an accident date in November 1997. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for chronic obstructive pulmonary disease and denying a NEL award for the pleural plaques.
The Board adjudicative advice documents on COPD states that the average duration of exposure to respirable dust associated with significant risk of COPD is estimated to be 25 years, and that the effect of dust combines with the effect of cigarette smoking to produce an additive risk. In this case, the worker had about 24 years of significant exposure to occupational dust, silica and asbestos. The worker was a smoker, whose risk of developing COPD was significantly increased by occupational exposure due to the additive effect as between occupational exposure and smoking.
The Panel concluded that the worker had entitlement for COPD.
An impairment is defined in the pre-1997 Act as any physical or functional abnormality or loss. The pleural plaques were a physical abnormality. The worker was entitled to a NEL assessment for the permanent physical abnormality of the pleural plaques.
The Panel noted that s. 47(13) of the WSIA provides that a worker is deemed not to have a permanent impairment if the degree of impairment is determined to be zero. Some decisions have applied this provision in the case of pleural plaques to find that the degree of permanent impairment would be determined to be zero and that, accordingly, the worker would be deemed not to have a permanent impairment. However, there was no analogous provision to s. 47(13) of the WSIA under the pre-1997 Act. Therefore, Tribunal decisions decided under the WSIA are distinguishable from this case.
The appeal was allowed.