WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2806/16

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2806/16 BEFORE: B. Kalvin : Vice-Chair S. T. Sahay : Member Representative of Employers K. Hoskin : Member Representative of Workers HEARING: November 1, 2016, at Toronto Oral DATE OF DECISION: November 15, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3100 DECISION UNDER APPEAL: WSIB Appeals Resolution Officer ( ARO ) decision dated November 26, 2013 APPEARANCES: For the worker: For the employer: Interpreter: J. Patterson, Office of the Worker Adviser The employers did not participate N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 2806/16 REASONS [1] These are the reasons for decision of the Workplace Safety and Insurance Appeals Tribunal with respect to an appeal by a worker s estate from a decision of the Workplace Safety and Insurance Board (the Board ) which denied the estate entitlement to benefits for the worker s esophageal cancer. (i) Background [2] The background to this appeal is as follows. The worker was born in From 1961 to 1974, he worked as a shipyard pipefitter and a millwright in Scotland. From 1974 to 1983, he worked for a company in Ontario that manufactures turbines. From 1974 to 1976, he was a pipefitter, from 1976 to 1980, he was a steel fitter, and from 1980 to 1983, he worked as a supervisor. In 1983, he began working for a new employer that manufactured rear windows and side lights for automobiles. From 1983 to 2002, he worked as a shift supervisor in the cut and bow area, and from 2002 to 2008, he worked as a supervisor in the bonding area. [3] On May 25, 2009, Dr. M. Oravec, a gastroenterologist, reported that he had treated the worker in 1996 for reflux disease and Barrett s esophagus. Dr. Oravec assessed the worker in 1998 and 2000 to monitor this condition. After 2000, Dr. Oravec did not see the worker again until November 11, 2008, when the worker complained of upper abdominal burning and pain and difficulty swallowing. Dr. Oravec sent the worker for an urgent upper endoscopy which revealed that the worker had esophageal cancer starting at the mid esophagus and coursing towards the GE junction. [4] On February 24, 2009, the worker initiated a claim for compensation benefits. The worker claimed that his esophageal cancer was caused by exposure to toxins in the workplace. In a decision dated May 28, 2009, a Board Adjudicator denied the worker s claim. The worker objected to the denial; however, it appears that no further activity on his file took place for several years. [5] The worker s cancer turned out to be metastatic and he died from that disease on September 20, [6] In 2012, the legal representative for the worker s estate again objected to the denial of the worker s claim, and submitted a new medical report in support of the objection. In response, the Board assigned an Occupational Hygienist to conduct an investigation into the worker s exposure at work to asbestos, silica and organic solvents. In a report dated October 23, 2012, the Occupational Hygienist described the worker s work history and occupational exposures to asbestos as follows: The available information suggested that the worker s most likely exposure to asbestos occurred during his initial 2 year tenure with [the turbine manufacturer] from 1974 to 1976, while working as a pipefitter. During this period a portion of the worker s routine duties likely involved removal and replacement of pipe insulation. Site specific air sampling to characterise the worker s exposure to asbestos was not available. While working as a pipefitter, the worker s tasks likely involved installing, cutting and removing pipe insulations, valve gaskets and packing materials. Since the worker s exposure to pipe insulation preceded the promulgation of Ontario asbestos regulations, it was assumed that the insulation that was handled by the worker might have been asbestos

3 Page: 2 Decision No. 2806/16 During a portion of his [turbine manufacturer] tenure from 1976 to 1980 the worker was a fitter. The file noted that one to two times per month the worker used an asbestos shielding blanket during welding. A review of information from unrelated [turbine manufacturer] claims indicated that the use of asbestos blankets and gloves could result in moderate to high exposures. A review of the available process information did not suggest that asbestos was used as an input material during the manufacture of glass products at [the automobile parts employer] facility. Instead, it was assumed that building and equipment might have been insulated with asbestos. A review of the worker s routine tasks did not suggest that he typically performed repairs to buildings or equipment. Based on these assumptions it was estimated that the worker s most likely exposures to asbestos during his tenure with [the automobile parts manufacturer] occurred due to ambient fibres from building insulation or while working in the area where insulation material were being repaired. [7] The Occupational Hygienist came to the following conclusion with respect to the level of the worker s occupational exposure to asbestos: The assessment suggests that the worker s most likely exposure to asbestos occurred during his tenure with [the turbine manufacturer]. During a 2 [year] period, from 1974 to 1976, he was routinely exposed to high levels of fibrous particles that possibly contained asbestos. During a 4 year period, from 1976 to 1980, he was occasionally, perhaps once or twice per month, exposed to moderate to high levels of asbestos. [8] For some forms of disease, the Board has policies which presume that the disease is an occupational disease, and therefore attracts entitlement to compensation benefits, as long as specified workplace exposures are demonstrated. If the prescribed exposures are not demonstrated, then the disease is not presumed to have an occupational cause, and the claimant must, as in regular benefit claims, prove that a causal link exists between the disease and an injuring process in the workplace. The policy which is relevant to this appeal is entitled Gastro- Intestinal Cancer-Asbestos Exposure and is set out in Operational Policy Manual Document No The policy reads as follows: Policy Gastro-intestinal cancer in asbestos workers is accepted as an occupational disease under sections 2(1) and 15 of the Workplace Safety and Insurance Act as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos. Guidelines Entitlement criteria All primary cancers associated with the esophagus, stomach, small bowel, colon and rectum are included in the classification of gastro-intestinal cancers. Based on medical studies, claims are favourably considered if the following circumstances apply there is a clear and adequate history of occupational exposure to asbestos dust, and while such occupational exposure cannot be quantitatively described, it should be of a continuous and repetitive nature, and should represent or be a manifestation of the major component of the occupational activity, AND there is a minimum interval of 20 years between the first exposure to asbestos and the diagnosis of gastro-intestinal cancer. No distinction is given to the site of the cancer in assessing the merit of the claim.

4 Page: 3 Decision No. 2806/16 [9] After reviewing the Occupational Hygienist s report, as well as the opinion of a Board Medical Consultant, the Adjudicator, in a decision dated May 28, 2013, confirmed the denial of entitlement to benefits for esophageal cancer. The estate objected to the Adjudicator s decision and its objection was referred to an Appeals Resolution Officer ( ARO ) in the Board s internal Appeals Services Division. In a decision dated November 26, 2013, the ARO denied the objection. [10] The worker s estate now appeals to this Tribunal. (ii) Issue [11] The only issue for determination on this appeal is whether or not the worker s estate is entitled to benefits for the worker s esophageal cancer. (iii) Analysis [12] Having considered the evidence, we find that the worker s estate is entitled to benefits for the worker s esophageal cancer. Our reasons for this conclusion are as follows. [13] In our assessment, the exposure criteria identified in the Board s policy are satisfied in this case. The Occupational Hygienist reported that for a two-year period, from 1974 to 1976, the worker was routinely exposed to high levels of fibrous particles that possibly contained asbestos. We find it more likely than not the high levels of fibrous particles to which the worker was exposed did contain asbestos. At that time, the worker s duties as a pipe fitter involved installing, cutting and removing pipe insulations. It is apparent from the evidence that asbestos was commonly used at that time as insulation for pipes and that the worker s exposure to pipe insulation preceded the promulgation of Ontario asbestos regulations. Accordingly, we find on a preponderance of the evidence that between 1974 and 1976, the worker was routinely exposed to high levels of airborne asbestos particles. [14] In our opinion, the worker s exposure during this period was of a continuous and repetitive nature and was a manifestation of the major component of his daily activity. Accordingly, the worker s exposure during this time satisfies the exposure criterion set out in the Board s policy. [15] We are fortified in the conclusion that the worker meets the exposure criterion set out in the Board s policy by the interpretation of that policy which is set out in a paper entitled Interpretation of Policy , Gastro-Intestinal Cancer Asbestos Exposure. This paper was prepared by S. Catli, a Senior Scientist in the Board s Occupational Disease Policy and Research Branch, and it is referred to in the ARO s decision. It is dated May 27, The policy has been regarded by this Tribunal as setting out a proper approach to the interpretation of the Board s policy. For instance, in Decision No. 144/12, the Panel stated that it considered the interpretation of the policy set out in this paper to be consistent with and supported by the language of OPM Document No The Paper reads, in part, as follows: The plain reading of the WSIB documentation that exists established that the authors of the policy intended that regular significant exposures to asbestos would provide sufficient exposure to explain the development of GI cancers. 1. Clear and adequate was intended to refer to known asbestos exposure and not exposure that is hypothetical or speculative. The presence of airborne asbestos in the workplace in the vicinity of the worker must be established.

5 Page: 4 Decision No. 2806/16 2. Continuous refers to ongoing exposure, and not a brief exposure period such as six months, unless it included extraordinarily high levels of exposure. 3. The term repetitive was used to describe the frequency of exposure, which should be daily or exposures of 3-5 times per week. This term was not intended to refer to a single exposure event or to exposure that was occasional or incidental in nature. 4. Consistent with the continuous and repetitive nature of the exposure, asbestos exposure must be a major component of the occupational activity. [16] For the reasons noted earlier, we find that the worker s exposure to asbestos was not hypothetical or speculative. He was involved in cutting, removing and replacing pipe insulation that commonly contained asbestos. His exposure was not for a brief period such as six months, but rather was for two years. Further, the Paper suggests that the exposure need not be continuous if it included extraordinarily high levels of exposure. In our assessment, a job which required the worker to cut, remove and replace asbestos insulation, in the years prior to the promulgation of Ontario asbestos regulation would have exposed the worker to extraordinarily high levels of airborne asbestos. The worker s exposure was also repetitive, in that his exposure likely occurred on a daily basis in the course of a full-time job. It certainly cannot be characterized as exposure that occurred during a single event or that was occasional or incidental in nature. Finally, the exposure did occur during the major component of the occupational activity. The worker s job was to work with pipes and unfortunately the pipes were insulated with asbestos. [17] For these reasons, we find that the worker s exposure to asbestos from 1974 to 1976 satisfies the requirements of the Board s policy. However, in addition to this exposure, the worker was also exposed to asbestos during an additional four-year period from 1976 to The Occupational Hygienist stated that during this period the worker was occasionally, perhaps once or twice per month, exposed to moderate to high levels of asbestos. It is possible that this period of exposure also satisfies the criterion in the Board s policy. During this period the worker used an asbestos shielding blanket during welding and therefore his exposure was not hypothetical or speculative. It was also not for a brief period, such as six-months, but rather went on for four years. It is possible that it might not be repetitive, in that it did not occur three to five times a week; however, it might satisfy the repetitive criterion because it certainly was not a single exposure event or incidental. It may also be regarded as a major component of the worker s job even if it was not the single most significant aspect of the job. Using a protective blanket while welding appears to be a reasonably important part of the job. However, regardless of whether or not the worker s exposure to asbestos between 1976 and 1980 satisfies the criterion in the Board s policy, for reasons already stated, we find that his exposure from 1974 to 1976 does so. [18] The second criterion in the policy pertaining to the latency period is also satisfied. The worker s exposures occurred between 1974 and 1980 and he was diagnosed with esophageal cancer in Accordingly, there was a minimum interval of 20 years between the first exposure to asbestos and the diagnosis of gastro-intestinal cancer. [19] Since the requirements of the policy are satisfied, the worker s esophageal cancer is presumed to be caused by his exposure to asbestos at work. Accordingly, the worker s estate is entitled to benefits for the worker s esophageal cancer.

6 Page: 5 Decision No. 2806/16 DISPOSITION [20] The appeal is allowed. 1. The worker s estate is entitled to benefits for the worker s esophageal cancer. The quantum and duration of benefits are to be determined by the Board subject to the usual rights of appeal. DATED: November 15, 2016 SIGNED: B. Kalvin, S.T. Sahay, K. Hoskin