The WSIB’s practice of apportioning NEL awards for chronic obstructive pulmonary disease (COPD)
In the summer of 2019, the Commission received a complaint from a worker representative about the WSIB’s practice of apportioning non-economic loss (NEL) awards for work-related COPD based on a history of cigarette smoking. The complainant alleged that the WSIB was ignoring the broader implications of more than a dozen decisions of the WSIAT from 2018, stating that “it is now settled, within [WSIAT] case law, and based on medical evidence, that COPD is not a divisible injury and that apportionment for pre-existing cigarette smoking is not generally available.”
The WSIB’s response
The Commission made inquiries with WSIB staff about its review and assessment of the WSIAT’s decisions on this issue. The WSIB told the Commission that it needed to do its own analysis of the scientific and medical evidence on COPD before making any changes to its current practice. They further informed the Commission that they were in the process of procuring an expert medical opinion on COPD. In the meantime, WSIB decision-makers continued to apportion NEL awards for COPD based on a history of cigarette smoking.
The Commission’s concerns
After carefully considering the WSIB’s responses and assessing the available evidence, the Commission raised a number of concerns with the WSIB about its review of this issue. Unfortunately, the WSIB staff responsible for the review of its COPD apportionment practice disagreed with the Commission’s assessment.
The Commission’s work on this issue was interrupted when the Commission was forced to close its physical office due to the COVID-19 pandemic. Given this delay, the Commission opted to bypass its normal escalation process and bring this issue to the attention of the WSIB’s Board of Directors. In its summary of this issue for the Board, the Commission highlighted several fairness concerns, including the timeliness and thoroughness of WSIB’s review, as well as concerns with the fairness of WSIB’s interim decision-making.
The WSIB takes action
Following further discussions of the Commission’s concerns with WSIB senior management, the WSIB decided to cease its practice of apportionment of NEL awards for COPD on September 1, 2020.
The WSIB told the Commission that a decision on whether this change in practice would be applied retroactively would be made in early 2021, after it received the results of its scientific review of COPD.
In April 2021, the WSIB announced that it would no longer reduce NEL awards for most people with claims for COPD. The WSIB also announced in April 2021 that it would reconsider all decisions to reduce a NEL award for COPD due to smoking made on or after April 20, 2016, i.e., the date WSIAT released decision number 1884/07. This decision analyzed the “two distinct and factually irreconcilable” streams of WSIAT decisions on the divisibility of COPD and consequently found COPD to be non-divisible.