Highlights of Noteworthy Decisions

Decision 891 19
17/05/2019
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.