Highlights of Noteworthy Decisions

Decision 1011 16 R
15/12/2020
R. McCutcheon
  • Chronic obstructive lung disease
  • Legal precedent (consistency)
  • Smoking
  • Procedure (leading case strategy)
  • Reconsideration (change in law)
  • Reconsideration (conflicting decisions)
  • Reconsideration (new evidence)
  • Apportionment (non-economic loss) (co-existing conditions)

Decision No. 1011/16 upheld the Board's decision to apportion the worker's NEL award for chronic obstructive pulmonary disease (COPD) due to the worker's smoking history. The worker applied for reconsideration of Decision No. 1011/16.

The original vice-chair considered two competing lines of Tribunal case law, which differed on the issue of whether COPD is a divisible injury. The original vice-chair preferred the approach adopted in Decision No. 484/06, which found that COPD was a divisible injury, so that apportionment was appropriate.
The worker submitted that there was significant new evidence, being Decisions No. 1884/07 and 1885/07, which are recognized as leading cases on the issue. The worker noted that those decisions were released approximately one week before Decision No. 1011/16.
The Tribunal Chair found that the threshold test for reconsideration was met. Decision No. 1884/07 considered the evidence presented by respirologist Dr. Hellyer and relied upon it in determining that it was not appropriate to reduce or apportion permanent impairment awards for COPD because COPD is not a divisible injury. The vast majority of Tribunal decisions subsequently followed the approach in Decision No. 1884/07.
Decision No. 1884/07 was a leading case that was scheduled in a co-ordinated manner with a similar case, and these two decisions were the result of an extensive adjudicative process by a three-member panel to address the rift that had developed in Tribunal case law.
Decision No. 1011/16 did not address the implications of Decision No. 1884/07, which pre-dated its release and which was directly relevant to questions that were of central importance to the conclusion it reached. If Decision No. 1884/07 had been brought to the attention of the vice-chair and the parties, they would have had the opportunity to review excerpts from Dr. Hellyer's reports, which were crucial to the issue of whether COPD is a divisible injury.
In reaching the conclusion that the threshold test for reconsideration was met, the Chair referred to Decision No. 534/90R, and found that Decision No. 1011/16 failed to deal with the implications of a leading Tribunal decision that pre-dated its release and which was obviously of significant relevance to questions of central importance to the conclusion that it reached.
The reconsideration process is intended for limited situations. A Tribunal decision will not be re-opened simply on the basis that a contrary line of decisions exists. In this case, however, there were exceptional circumstances that met the threshold test. This was a situation where there were two leading decisions (Decisions No. 1884/07 and 1885/07) that reconciled conflicting approaches, to ensure that the conflicting approaches did not occur over the long term. The leading decisions were released just a week prior to the release of this decision, and those cases were not drawn to the attention of the vice-chair and the parties. This was an exceptional circumstance that constituted an error of law that would likely have affected the outcome of the decision.
The application to reconsider was granted.