Highlights of Noteworthy Decisions

Decision 51 14
M. Crystal - B. Young - A. Signoroni
  • Apportionment (occupational disease)
  • Asbestosis
  • Accident (date) (occupational disease)
  • Pleural plaque
  • Non-economic loss {NEL} (one hundred per cent award for compensable death)

The worker died in April 2005, as a result of occupational exposure to asbestos. The worker's estate appealed decisions of the Board finding that the accident date in in 2004, denying benefits from 1992 to the date of the worker's death in 2005, denying entitlement for asbestosis and denying 100% NEL benefits.

X-rays indicated the presence of pleural plaques in 1990. Tribunal decisions have found that pleural plaques are evidence of an impairment. The Panel concluded that the accident date should be in 1990.
The worker was not entitled to temporary benefits or FEL benefits from 1992 to 2005. The worker suffered a non-compensable stroke in 1992. On the evidence, the asbestos-related disease did not contribute to the worker's lay-off in 1992 or retirement in 1993, or to any loss of income that the worker suffered after the stroke.
On the evidence, the worker had entitlement for asbestosis.
The estate submitted that the worker should be entitled to a 100% NEL award for compensable death. The Panel requested information from the Board regarding such an award. The Board responded that, historically, it has been the Board's practice to grant a 100% NEL award for workers with terminal illness (receiving palliative care), in order to recognize poor prognosis and to compensate prospectively for further expected deterioration. In cases involving deceased workers, it is also the practice to grant the 100% NEL award if the compensable condition is the primary cause of the worker's death. However, if the compensable condition is a contributing factor but not the primary cause of death, the approach is to apportion the impairment rating based on medical significance of the compensable condition and its relative contributing to the worker's death.
The Panel accepted the Board practice. However, the Panel noted that this approach would probably not be appropriate unless the worker lived with terminal illness and a poor prognosis for a reasonable period of time. It would also not be applicable in a case where a worker sustains a traumatic injury which causes the worker's death soon after the accident, without recovery from the accident.
In this case, the worker's condition related to his asbestos exposure was significant but there were also other significant conditions which contributed to the worker's death, including chronic obstructive airway disease related to smoking and conditions associated with cardiac function. In these circumstances, the Panel concluded that the worker was entitled to a 50% NEL award, consistent with the Board approach for when there are additional causes of a worker's death.
The appeal was allowed in part.