Highlights of Noteworthy Decisions

Decision 9 21
B. Kalvin
  • Dependency benefits (death results from an injury)
  • Significant contribution (of compensable disability to death)
  • Non-economic loss {NEL} (one hundred per cent award for compensable death)

The worker was diagnosed with advanced lung cancer in May 2015. He initiated a claim on July 8, 2015. The Board accepted the claim, eventually granting a 100% NEL award.

On July 11, 2015, the worker had a heart attack. He died on July 13, 2015. A Medical Certificate of Death listed the heart attack as the "immediate cause of death" and the lung cancer under "other significant conditions contributing to the death but not causally related to the immediate cause."
The Board denied survivor benefits on the basis that the worker's death was not caused by the lung cancer but, rather, by the non-compensable heart attack. The estate appealed.
The Vice-Chair found that the estate was entitled to survivor benefits for two basic reasons.
First, to determine issues of causation, the Tribunal uses a significant contribution test. The Board found that the cancer was not the "immediate" cause of death. However, the Vice-Chair noted that neither the WSIA nor Board policy states that the work-related condition must be the "immediate" cause of death. Rather, the death must be "as a result of" the work-related condition. To determine whether the death resulted from the work-related condition, the significant contributing factor test does not require the compensable illness be the most important or, for present purposes, the most immediate cause of death.
The Vice-Chair found that the Death Certificate stated specifically that the lung cancer was a significant condition contributing to the death. As such, the significant contributing factor test was met in this case. In this regard, the Vice-Chair referred to the Handbook on Medical Certification of Death prepared by the Ontario Office of the Registrar General, which provides for recording in Part II any other significant condition which unfavourably influenced the course of the morbid process and thus contributed to the fatal outcome but was not related to the immediate cause of death. Entries in Part II should be limited to those of appropriate significance which contributed to the death.
The second reason for granting survivor benefits related to the fact the Board granted a 100% NEL benefit for the lung cancer. It is difficult to see how an impairment that constitutes 100% of a person's whole body did not contribute to the person's death. The Vice-Chair also referred to Decision No. 51/14, which sets out a letter from the Board's Legal Services Division explaining that, in cases of terminal illness, it is Board practice to grant a 100% NEL award, and that, in the case of deceased workers, it is also the Board practice to grant a 100% NEL award if the compensable condition was the primary cause of the worker's death.
The Vice-Chair found that the 100% NEL award implied that the compensable condition was the primary cause of death. The estate was entitled to the survivor benefits. The appeal was allowed.