WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2861/16

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 2861/16 BEFORE: M. Crystal: Vice-Chair HEARING: November 4, 2016 at Toronto Written DATE OF DECISION: December 28, 2016 NEUTRAL CITATION: 2016 ONWSIAT 3580 DECISION UNDER APPEAL: WSIB ARO decision dated November 29, 2013 APPEARANCES: For the worker: For the employer: Interpreter: Mr. J. T. Lamont, Paralegal Did not participate Not applicable 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. 2861/16 REASONS (i) Introduction [1] This appeal was considered as a written case on November 4, The worker appeals the decision of Appeals Resolution Officer (ARO) L. Diaz, dated November 29, That decision determined that the worker, through his estate, is not entitled to benefits for asbestosis, arising from his employment with the accident employer. [2] The worker passed away on August 13, 2013, and his estate was represented by Mr. John Thomas Lamont, paralegal. The employer did not participate in the appeal. Written submissions, dated June 9, 2016, were provided by Mr. Lamont. (ii) A synopsis of the case under appeal [3] According to a Board memo, dated May 14, 2012, the worker began his employment with the accident employer, a manufacturer of beverages, in The case materials included a document, dated April 20, 2012, prepared by Service Canada, which indicated the worker s earnings with the accident employer as well as his contributions to Canada Pension Plan (CPP), from year to year. The document indicated that the worker began his employment with the accident employer in 1966, and that he ceased his employment with the accident employer in The worker was 61 years old when he ceased his employment with the accident employer, and he was 84 years old when he passed away in [4] The case materials also included a copy of an message, dated April 5, 2012, prepared by a manager associated with the accident employer. The message stated in part: [The worker s] role was a machine operator/ lead hand in the Carton Make-Up Area. The Position requirements were: Operate the electrical forklift Receive corrugated boxes and inventory the cartons in the carton warehouse Unbundle partitions for [boxes] and place partition in the partition bins ready for use Manually insert partitions into the [boxes] at the discharge to the carton make-up machine Load carton make-up machines with corrugated [packs] for carton erection Load carton make-up station for manual erection of box board cartons Load carton make-up machines with hot melt adhesive Clean the carton make-up machines and empty carton conveyors blow down and vacuum dust face masks provided Clean the carton make-up floor area sweeping dust face masks provided [5] The copy of the message also included a handwritten notation, dated April 11, 2012, which indicated that the plant location where the worker was employed opened in 1955 and closed in The person who made the notation indicated that this is all the information I can provide.

3 Page: 2 Decision No. 2861/16 [6] The case materials also included a Board memo, dated April 30, 2012, reflecting a conversation between the worker s son and the Board s Eligibility Adjudicator, concerning the worker s employment prior to his employment with the accident employer. The memo indicated that the worker s son stated that, prior to this employment with the accident employer, the worker had been employed as a baker/caterer and that prior to that he worked in construction for a few years but he could not recall the name of the construction companies although he recalls that it was mainly residential construction (1956 to 1965). The memo also stated that the worker began smoking in his teenage years, and quit smoking in his 70s. [7] According to a Discharge Summary, dated July 23, 2013, the worker was discharged home from hospital on that date. The report, prepared by Dr. Steven E. Rubenzahl, indicated that the worker had been admitted to hospital on February 22, 2013, with a fractured right hip, but that while in hospital, he was also diagnosed with dementia, chronic obstructive pulmonary disease and asbestosis. The case materials included a copy of a report, dated February 4, 2013, prepared by Dr. Susan Tarlo, respirologist. The report stated that a CT scan from April 7, 2011 showed calcified pleural plaques mainly on the left in addition to changes of emphysema but no interstitial lung changes at that time. The report stated that the further CT scan from March 13, 2013 performed at [name of hospital] was reviewed and shows in addition to the pleural plaques evidence of lower zone fibrosis more marked on the right than the left, consistent with asbestosis. Dr. Tarlo s report went on to provide the following conclusion: Therefore in my opinion, it is likely that [the worker] has asbestosis in addition to pleural plaques as a result of previous asbestos exposure that he believes occurred at [the accident employer] between 1966 and He also has findings of emphysema that likely relates to his previous smoking history. [8] The report, dated February 4, 2013, prepared by Dr. Tarlo, provided further information about the worker s possible occupational exposures. In this regard, the report stated: In terms of exposure to asbestos [the worker] worked at the [accident employer s plant] between 1966 and It seems his responsibilities included driving a forklift and receiving and posting packages. He is aware that there was asbestos in the building but he did not directly use asbestos at work. Furthermore he does not remember if any of his colleagues with whom he is no longer in touch have a history of lung disease or history of asbestosis. Occupational history is otherwise non-contributory. He previously worked in a bakery business in sales prior to working at [the accident employer]. He very briefly over a couple of months worked in construction prior to that. When he stopped working at [the accident employer] in 1990 he retired. [9] In its operating level decision letter, dated May 14, 2012, which denied the worker entitlement to benefits for asbestosis, the Board took notice of the fact that asbestos products were often used in the [accident employer s] industry in the 1970s since steam and hot water pipes were covered in asbestos insulation. The letter indicated, however, that entitlement for asbestosis was denied because the worker s job did not require him to perform maintenance work and he did not work in the area of the plant where steam and hot water pipes would have been located. The letter also noted that the worker could not recall an asbestos exposure incident, and that no other asbestos related claims had been registered under the accident employer firm.

4 Page: 3 Decision No. 2861/16 (iii) Applicable law and policy [10] The worker was diagnosed with asbestosis in Accordingly, the worker s entitlement to benefits in this appeal is governed by the Workplace Safety and Insurance Act, 1997 ( the Act ). [11] In this appeal, the worker has been diagnosed with asbestosis. Section 15 of the Act provides: 15(1) This section applies if a worker suffers from and is impaired by an occupational disease that occurs due to the nature of one or more employments in which the worker was engaged. (2) The worker is entitled to benefits under the insurance plan as if the disease were a personal injury by accident and as if the impairment were the happening of the accident.. (4) If, before the date of the impairment, the worker was employed in a process set out in Schedule 4 and if he or she contracts the disease specified in the Schedule, the disease shall be deemed to have occurred due to the nature of the worker s employment. (5) A worker and his or her survivors are not entitled to benefits under the insurance plan for impairment from silicosis unless the worker has been actually exposed to silica dust for at least two years in his or her employment in Ontario prior to becoming impaired. (6) Subsection (5) applies, with necessary modifications, with respect to impairment from pneumoconiosis and stone worker s or grinder s phthisis. [12] Schedule 4, referred to in section 15 of the Act, is entitled Occupational Diseases (Deemed under subsection 15(4) of the Act). Schedule 4 includes Column 1 which lists the Description of Disease and Column 2, which lists the Process. The first item listed under Column 1 is Asbestosis. The process associated with this item, under Column 2, is Any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos. [13] The case materials also included Operational Policy Manual Document No , on the subject of Asbestosis. The policy document states in part: Policy Asbestosis in workers exposed to asbestos dust in Ontario employment is an occupational disease as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos. If the worker was employed in Ontario in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres for at least 2 years before the date of diagnosis of asbestosis, the asbestosis is conclusively deemed to have been due to the nature of the employment. Guidelines Entitlement Claims for asbestosis are allowed when it is established that the worker has a diagnosis of asbestosis, and

5 Page: 4 Decision No. 2861/16 worked in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres. The legislative requirements of sections 15(5) and 15(6) of the Workplace Safety and Insurance Act for 2 years of asbestos dust exposure in Ontario apply to this policy. (iv) The issue under appeal [14] The sole issue to be determined in this appeal is whether the worker has initial entitlement to benefits for asbestosis arising from his employment with the accident employer. (v) Analysis [15] In the circumstances of this appeal, the worker was diagnosed with asbestosis by Dr. Tarlo, in her report, dated February 4, Dr. Tarlo indicated in the report that it was likely that the worker had asbestosis. I accept that asbestosis was the worker s correct diagnosis. I note that, on the issue of occupational exposure, Dr. Tarlo noted that the worker believed that he had asbestos exposure as a result of his employment with the accident employer, but that Dr. Tarlo refrained from expressing her own view on whether the worker was exposed to asbestos in the course of his employment with the accident employer. The report commented on the worker s occupational exposures, noting that the worker was aware that asbestos was used at the accident employer s building, but that he did not use asbestos directly at work and he could not recall any co-workers who were affected by asbestos exposure. The report stated that occupational history is otherwise non-contributory. [16] I am not able to interpret Dr. Tarlo s report as supporting the conclusion that the worker s asbestosis was related to his employment with the accident employer. I have reviewed the other medical evidence on file, and I am not able to find that the medical information on file provides a basis for concluding that the worker s asbestosis was related to his employment with the accident employer. [17] I have also considered section 15, and Schedule 4 to the Act, which is included in Ontario Regulation 175/98. These provisions provide that where a worker has been diagnosed with asbestosis, if before the worker s impairment, the worker has been employed in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos, the asbestosis will be deemed to have occurred due to the nature of the worker s employment. [18] Similarly, Operational Policy Manual Document No provides that if the worker was employed in Ontario in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres for at least 2 years before the date of diagnosis of asbestosis, the asbestosis is conclusively deemed to have been due to the nature of the employment. [19] I am not able to conclude that the worker s case meets the requirements of either section 15 and Schedule 4 or that the case meets the requirements of Operational Policy Manual Document No The information on file indicates that the worker s employment with the accident employer required him to operate a forklift, work with corrugated cardboard boxes, and the machines that made the boxes, and also to clean up the area. The information provided by the employer concerning the worker s duties indicates that a dust mask was to be used in the

6 Page: 5 Decision No. 2861/16 clean-up, and while I accept that the worker s job may have involved exposure to dust, there was no persuasive evidence before me to support the conclusion that the worker had significant exposure to asbestos dust. I find that the worker was not employed in the type of work contemplated by section 15 and Schedule 4, or in Operational Policy Manual Document No I find that the type of work in which the worker was involved with the accident employer was not a process involving the generation of airborne asbestos fibres. Accordingly, I find that the deeming referred to in those provisions does not apply in the worker s case. [20] Although I find that these deeming provisions do not apply in the worker s case, I have also considered whether it is probable that the worker s asbestosis was related to his employment with the accident employer, on the basis of the merits and justice of the case. When considered on this basis, I am also unable to conclude, on a balance of probabilities that the worker s asbestosis was related to his employment with the accident employer. The only significant information before me which could relate the development of the worker s asbestosis to his employment with the accident employer, is the fact that the plant where the worker was employed by the accident employer probably used hot water and steam pipes that were probably insulated with asbestos, and it is possible that the worker could have been exposed to asbestos in the insulation. [21] I find that, when considered on a balance of probabilities, it is not likely that the worker s asbestosis was related to his exposure to asbestos insulation on pipes. The worker s employment did not involve maintenance where he would have worked with asbestos insulated pipes, and there was also a lack of evidence that the worker carried out his employment duties to any significant extent in an area where asbestos insulation was present. Although I accept that it is possible that the worker s asbestosis was related to asbestos exposure during his employment with the accident employer, I am required to determine this appeal according to the evidentiary standard known as on a balance of probabilities. That is, in order to find that entitlement is in order for asbestosis arising from the worker s employment with the accident employer, I must conclude that it is more probable than not that the worker s asbestosis arose from his occupational exposure from the employment. I am not able to reach that conclusion in this case, given that the worker did not work directly with asbestos, and there is no persuasive significant evidence before me to support a finding that the worker had other significant exposure to asbestos in his employment with the accident employer. [22] I have also considered the submissions, dated June 9, 2016, provided by the worker s representative. An argument presented in the submissions, is that although the worker did not have two years of working directly with asbestos in his employment with the accident employer, as required by the policy document, he worked for the accident employer for 24 years, and even incidental asbestos exposure over that lengthy period of time should be a sufficient basis to establish that the worker s asbestosis was related to his employment with the accident employer. I am not able to agree that entitlement for asbestosis is established in this manner. In the absence of other persuasive evidence relating to actual asbestos exposure experienced by the worker, I am not persuaded that that the fact that the worker was employed by the accident employer for 24 years establishes entitlement on a balance of probabilities. [23] The representative s submission also refers to the possibility that the worker could have been exposed to asbestos through the plant s ventilation system. The submissions referred to the adjudicator s view that several assumptions would have to be made for this to be possible. These assumptions were that there was in fact asbestos insulation on the pipes, that friable

7 Page: 6 Decision No. 2861/16 asbestos was released when maintenance work was being performed on the pipes, and that it was delivered by the ventilation system to the area where the worker was employed. Again, while such a course of events is not impossible, I find that the evidence before me does not establish, on a balance of probabilities, that this occurred in the worker s case. [24] I also note that there was some information provided by the worker s son concerning other employment that the worker performed, some of which is related to the construction industry, and may possibly have involved asbestos exposure. Given the worker s pleural plaques and diagnosis of asbestos, I accept that the worker had asbestos exposure at some point in his life. The issue before me in this appeal, however, is whether the worker s asbestosis can be related to his employment with the accident employer. For reasons already provided, I have concluded that the evidence does not establish on a balance of probabilities that the worker had significant exposure to asbestos in his employment with the accident employer, so as to establish entitlement. In order to reach this conclusion, it is not necessary for me to reach a conclusion about the probable basis of the worker s asbestos exposure. [25] I have also considered section 124(2) of the Act, which states: 124 (2) If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits. [26] Given that the worker did not work directly with asbestos in his employment with the accident employer, and given the lack of persuasive evidence supporting the worker s exposure to asbestos in his employment with the accident employer in another manner, I am not able to conclude that the evidence for and against entitlement in this case is approximately equal in weight. As I have indicated, I find that on the basis of the evidence, it is more probable than not that the worker s asbestosis was not related to his employment with the accident employer. [27] For these reasons, I find that the worker does not have initial entitlement to benefits for asbestosis. As noted above, I find that the worker s case does not meet the requirements of section 15 of the Act, or the requirements of Operational Policy Manual Document No I have also considered the worker s appeal, apart from these considerations, according to the merits and justice of the case, and I conclude that, when considered on a balance of probabilities, the development of the worker s asbestosis was not related to his employment with the accident employer.

8 Page: 7 Decision No. 2861/16 DISPOSITION [28] The appeal is denied. [29] The worker, through his estate, does not have initial entitlement to benefits for asbestosis arising from his employment with the accident employer. DATED: December 28, 2016 SIGNED: M. Crystal