- 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.