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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 931 19
7/29/2019
R. McCutcheon

  • Smoking
  • Apportionment (non-economic loss) (co-existing conditions)
  • Benefits (overcompensation)
  • Permanent impairment {NEL} (degree of impairment) (chronic obstructive lung disease)

The Board granted the worker entitlement for lung cancer and chronic obstructive pulmonary disease in January 2016. The Board rated the worker's permanent impairment at 42% for the lung cancer and at 15% for the COPD but reduced the COPD rating to 10.5% due to the worker's smoking history. The worker appealed a decision of the Appeals Resolution Officer regarding the rating for COPD.
The Vice-Chair agreed with previous Tribunal decisions that it is generally not appropriate to reduce a NEL award for COPD due to smoking. There was no basis for the reduction in this case.
The Vice-Chair reviewed background information on the severity of COPD found in the Tribunal medical discussion paper, and the AMA Guides on classes of respiratory impairment.
The Board rated the worker for mild impairment in Class 2 of Table 8 in the AMA Guides. The worker submitted that the Board did not take into account measurements of DLCO, a diffusing capacity measurement. However, the Vice-Chair noted that the relevant measurements for COPD are FEV1 and FEV1/FVC. DLCO is primarily a value for persons with restrictive lung disease, rather than obstructive lung disease as in this case.
Further, the Vice-Chair noted that the worker has already been granted entitlement for lung cancer, with a 42% NEL rating under Table 8 of the AMA Guides. The rating for the lung cancer also took into account the worker's symptoms such as shortness of breath upon exertion and difficulty with stairs. It is important to ensure that the rating for the COPD is based on relevant measurements that do not overlap with the NEL rating for the lung cancer.
A comment from the worker's doctor indicated that the worker's spirometry results were consistent with moderately severe COPD. However, analysis of the result by a different doctor indicated mild to early moderate obstruction, which was consistent with the worker's relevant measurements for COPD of FEV1 and FEV1/FVC.
The Vice-Chair confirmed the 15% rating for COPD.
The appeal was allowed in part.