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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 891 19
5/17/2019
B. Kalvin

  • Chronic obstructive lung disease
  • Legal precedent (consistency)
  • Smoking
  • Apportionment (non-economic loss) (co-existing conditions)

In Decision No. 1590/16, the Tribunal found that the worker had entitlement for chronic obstructive pulmonary disease. The Board then granted the worker a 100% NEL award but attributed the 60% of the worker's impairment to smoking and, accordingly, reduced the NEL award to 40%.
In this decision, the Vice-Chair noted two lines of competing cases in Tribunal decisions: one line of cases finding that it is appropriate to apportion COPD into compensable and non-compensable components, so that benefits can be reduced to reflect the contribution of smoking; the other line of cases finding that COPD is not a divisible injury, so that entitlement to benefits cannot be reduced to reflect the contribution of smoking.
The Vice-Chair was of the view that there is a need for consistency. The Vice-Chair adopted the approach in Decision No. 865/94R4, that COPD is generally not a divisible injury.
The worker's estate was entitled to the 100% NEL award without reduction.