Estate of Worker v. Employer, 2018 CanLII 67178

Workplace Safety and Insurance Board

APPEALS RESOLUTION OFFICER DECISION

DEcision Number: 20180026

OBJECTING PARTY: Estate of Worker REPRESENTED by: Representative

RESPONDENT: Employer REPRESENTED by: Representative

HEARING: Hearing in Writing HEARD by: S. Crisostomo, Appeals Resolution Officer DATED: June 25, 2018

ISSUE

The estate of the worker is requesting entitlement for mesothelioma related to the worker’s employment exposure to asbestos while employed by the employer.

BACKGROUND

This claim was established based on medical reports from the Algoma Regional Cancer Program and the Physician’s Report of Occupational Disease completed by Dr. Spadafora, Oncologist, on August 13, 2007 which indicated the worker was diagnosed with mesothelioma (malignant pleural effusions, epithelioid type) and that the worker’s history of exposure was 31 years (1969 to 2000) of working in areas where there was an open ceiling and exposed pipes.

The worker completed the Worker’s Report of Occupational Disease dated August 13, 2007 and indicated he was a teacher from September 1969 to June 2000 for the employer and that he worked in areas with open ceilings and exposed pipes including the storage room where supplies were stored (visited quite regularly) and the junior football room and equipment room which he used for 20 plus years from August to November. The worker retired on June 30, 2000. The worker also completed the Worker’s Report of Injury/Disease (Form 6) dated August 27, 2007 and indicated that he was a teacher for 31 years and in July of 2007 he was having problems breathing and that following testing he was diagnosed with lung cancer.

The worker passed away on August 31, 2010.

On September 11, 2017 the employer’s representative submitted a package of information including asbestos inspection records from 1990 to 1999.

Decision

On January 7, 2008, the Eligibility Adjudicator (EA) denied initial entitlement for mesothelioma after determining the worker’s workplace did not contribute significantly to the development of his mesothelioma.

Worker Representative’s Position

The worker’s representative submits:

• The worker was employed with the employer from 1969 to 2000 (31 years) where he taught Geography and coached junior boys football.
• In July of 2007 the worker was diagnosed with mesothelioma.
• Dr. Spadafora related the worker’s mesothelioma to his exposure to asbestos in his workplace.
• The worker’s statement confirms that friable asbestos was present in rooms he was accessing and that walking and moving supplies around in the rooms would cause fallen particulates to become airborne and inhaled.
• There is no pre-1990 information about the state of the asbestos contained in the rooms the worker entered to perform his work duties.
• The worker’s statement was corroborated by his former co-worker.
• The latency period of mesothelioma is 30-40 years which is consistent with the worker’s exposure.
• Asbestos exposure is the primary cause of mesothelioma.
• The Workplace Safety and Insurance Appeals Tribunal (WSIAT) decision 341/11 allowed entitlement for mesothelioma for a Teacher/Vice Principal on the basis that it was more probable than not that the Teacher/Vice Principal was exposed to asbestos while at work.

Employer Representative’s Position

The employer’s representative submits:

• The worker was not employed in a process identified in Schedule 4.
• There is no relevant information available prior to 1990 as there was no legislation in effect till the late 1980s with respect to asbestos.
• The Report of June 19, 1990 related to the Board of Education Asbestos Inspection revealed the storage room the worker attended required repair of asbestos insulation on the supply and return lines, and roof drain. The repairs were completed in August of 1991 and the delay in repairs is indicative of the fact that the situation as found did not pose a public health problem.
• A public health problem would only exist if:
  • The occupant was in the immediate area of work that disturbs friable asbestos containing insulation.
  • The occupant was within range of air circulation of work that disturbs friable asbestos or
  • Significant quantities of friable asbestos-containing insulation has fallen and is being disturbed.
• It is unclear which equipment room the worker attended. Two of the possible three equipment rooms had asbestos insulation; however, the asbestos was in satisfactory condition and did not require repair.
• The worker reported that he was only in the room that contained asbestos briefly and that he did not disturb the debris on the floor.

AUTHORITY

Sections 2(1) and 15 and Regulations 3 and 4 of the Workplace Safety and Insurance Act, 1997 (the Act)

Operational Policies:

11-01-01 Adjudicative Process

11-01-02 Decision-Making

16-02-12 Mesothelioma of the Pleura and Peritoneum

ANALYSIS

I have carefully considered all of the available information, the applicable legislation and the relevant operational policies in reaching this decision.

I am satisfied that it is more probable than not that the worker’s exposure to asbestos while working for the employer significantly contributed to the development of his mesothelioma. Therefore, entitlement for mesothelioma is allowed. The reasons for my decision follow.

I have reviewed WSIAT decision 341/11 as mentioned by the worker’s representative in the submission of October 10, 2017 and note the facts and circumstances of that claim differ from this claim, as in that claim the claimant was involved in removing ceiling tiles for the purpose of inspection and hanging displays. The claimant in that claim was also “routinely” in all areas of the school where asbestos was located.

I must note that the WSIB is not bound by WSIAT decisions and that this case will be reviewed on its own merits.

Operational Policy 11-01-01 related to the adjudicative process states in part:

All decision-makers use the same criteria for ruling on initial entitlement to WSIB benefits. This system is known as the "five point check system.”

An allowable claim must have the following five points:

• an employer
• a worker
• personal work-related injury
• proof of accident, and
• compatibility of diagnosis to accident or disablement history.

Occupational disease cases are adjudicated under s. 2 (1) and s. 15 of the Act and by Regulation in Schedules 3 & 4 of the Act. If the disease is not listed in the Schedules and a relevant policy has not been developed, entitlement to benefits and services is determined based on the merits and justice of the case. It must be established that it is more probable than not that the circumstances of the worker’s employment and exposure history significantly contributed to the development of the medical condition being claimed. In this case, the worker claimed that he developed mesothelioma as a result of employment exposure to asbestos.

Mesothelioma of the Pleura and Peritoneum was entered into Schedule 4 of the Act on May 28, 1992. An irrebuttable presumption that the mesothelioma is due to the nature of the employment (as peculiar to and characteristic of a process, trade, or occupation involving exposure to asbestos) applies to all claims with accident dates (i.e. date of diagnosis) on or after May 28, 1992.

I recognize that Operational Policy 16-02-12 related to Mesothelioma of the Pleura and Peritoneum states that claims for mesothelioma are allowed if it is established that the worker

• has a histopathologically confirmed diagnosis of primary malignant neoplasm of the mesothelium of the pleura or peritoneum, and
• has worked in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres.

In this case, there is no evidence that the worker worked in any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance or demolition process involving the generation of airborne asbestos fibres. As such, Operational Policy 16-02-12 does not apply in this claim and entitlement must be determined based on the merits and justice of the case.

A review of the medical evidence in the file reveals the worker was diagnosed with malignant mesothelioma of the pleura in July of 2007, which is not in dispute. As such, I am satisfied that the worker had malignant mesothelioma of the pleura.

I note the EA contacted the worker on September 4, 2007 and obtained the following information:

• He was a geography teacher and taught in room 214.
• The Map Storage Room (Map Room) was just around the corner.
  • It had no windows and only one door.
  • Overhead there was pipes about 3-4 inches wide and wrapped in insulation. Some places of the insulation mostly near the elbow joint were worn and small pieces (3” X 3”) had fallen off onto the floor below. The inner insulation was exposed.
  • He did not handle the pieces of asbestos found on the floor.
  • The room was not cleaned by janitorial staff so it was dirty and dusty.
  • He attended the room daily for up to 5 minutes so he could gather material needed for teaching.
  • At the end of the year he went inside the room to throw out things that were no longer required and noted it was very dusty and dirty everywhere including on top of all the supplies.
• He was a football coach and attended the Football Equipment Room
  • Overhead there was pipes about 3-4 inches wide and wrapped in insulation.
  • He does not recall the state of the insulation in the area.
  • He did not handle any insulation in the room.
  • He was in the room 5 days per week and on Saturdays when there was a game. For two weeks before the season started he was in the room for 5 hours per day fixing equipment. For two weeks post-season he was in the room to ensure equipment was properly stored. From mid-September to November he was in the room daily for one hour.
  • The room was dirty and dusty as it was never cleaned by cleaning staff.

The unsigned and undated statement from L.L. to the EA stated that the worker and L.L. worked together as teachers and coached at the school from September 1969 for over 30 years till their retirement. During this period, they spent a great deal of time at the school and became intimate with every nook and cranny. As coaches they spent a lot time in the basement where the equipment was kept and where the plant piping encased with asbestos was located. Over time due to the required repairs and degradation asbestos dust began to accumulate. This concern was brought to the administration and it was advised that it was not harmful and it was cleaned up occasionally. L.L. also advised that the Map Room and Subject Offices were also exposed to asbestos.

A review of the employer’s submitted Asbestos Inspection Record logs reveals the areas (several) within the school that required repair of the asbestos insulation including but not limited to the boiler room, hallway rooms, mechanical room, sewing room, janitor’s rooms and the store room on the second floor (known as the Map Room). In total approximately 13 rooms in the school required repair of the asbestos. Specifically the Map Room required repair of multiple items including the supply and return lines (asbestos on the elbows) and the roof drain (asbestos on the straight sections and elbows). According to the Asbestos Inspection Repair logs, all the repairs were completed in August of 1991.

According to the 1994 Asbestos inspection form, the roof drain asbestos was removed and the supply and return line asbestos could not be located; however, in the 1996, 1997 and 1999 Asbestos Inspection Reports it was reported that the heating supply and return lines, and roof drain were in satisfactory (asbestos condition was stable) condition.

In 2017 the employer provided relevant aspects from the 1000 page report which indicated:

• The reports of the Royal Commission on Asbestos concluded that the health risks to the occupants of buildings due to asbestos exposure was insignificant and that the risk does not present a public health concern problem unless:
  • When the occupant is in the immediate vicinity of work that disturbs friable asbestos-containing insulation.
  • When the occupant is within the range of air circulation of work that disturbs friable asbestos-containing insulation was within range of air circulation of work that disturbs friable asbestos or
  • When significant quantities of friable asbestos-containing insulation have fallen onto building surfaces and are being disturbed.
• The recommendation for remedial action included 7 recommendation which included the following three:
  • Non-friable asbestos material in good condition should be left undisturbed.
  • An asbestos maintenance program should be instituted to complete repair work for each building as detailed in the report.
  • A routine annual asbestos inspection program should be conducted to monitor the condition of asbestos found in the Board of Education buildings and repairs made as found necessary. Asbestos was located two of the three equipment rooms; however, repair of the asbestos insulation was not necessary.
• The supply and return lines in the Map Room were fibreglass with 20% chrysotile asbestos on the elbows that needed repair and the roof drain was paper containing 5% chrysotile asbestos on the straight sections with 25% chrysotile asbestos on the elbow which needed repair.

I note the worker started working for the employer in 1969, 21 years prior to the first asbestos inspection performed in June of 1990. As the first asbestos inspection took place in June of 1990, there are no asbestos records prior to 1990. In the absence of any asbestos inspection records prior to June of 1990, I find the state of the asbestos insulation at the time of the 1990 asbestos inspection would reflect the condition of the asbestos insulation prior to 1990 and the years leading up to June of 1990. Unfortunately due to the lack of asbestos records prior to 1990, it is impossible to determine the state of the asbestos insulation throughout the period of 1969 to June of 1990.

Based on my analysis of the information before me, I am satisfied that while asbestos may have be present in the equipment room (as two of the three equipment rooms contained asbestos insulation) the asbestos insulation in the equipment rooms was stable (undamaged) and likely did not produce a health risk as it appears to be undisturbed. With respects to the Map Room, the worker’s statement that the asbestos in this room was worn and pieces of asbestos insulation were falling to the ground is supported by the 1990 asbestos inspection which confirmed the asbestos insulation required repair. The worker’s statement is further corroborated by his former co-worker’s statement to the EA which indicated the Map Room was exposed to asbestos. As such, I am satisfied that the asbestos insulation in the Map Room was damaged and that it required repair. Based on the worker’s statement, I accept that it was likely that pieces of the asbestos insulation fell to the ground and that the asbestos insulation was likely friable as it was pipe insulation that was damaged to the point it required repair. I am also satisfied that over time asbestos fibres from the damaged insulation would have fallen onto items in the Map Room including the floor due to pipe vibration and movement in the room.

As mentioned above, based on the available information, it is impossible to determine the state of the asbestos insulation throughout the period of 1969 to 1989; however, based on the 1990 asbestos inspection report, I am satisfied that the damage to the asbestos insulation in the Map Room likely occurred several years prior to 1990. Based on the above finding that the Map Room contained asbestos fibres as a result of the damage asbestos insulation in the room and noting that the worker accessed the Map Room daily for short periods of time (up to 5 minutes) for an extended period of time (likely 10 months per school year for several years) prior to the asbestos being repaired in August 1991, I am satisfied that upon entering the Map Room and moving around that the worker disturbed the friable asbestos fibres which fell from the above supply and return lines, and roof drain and was exposed to friable asbestos fibres which he likely inhaled. Noting the repairs needed to asbestos insulation in the Map Room, the evidence that pieces of asbestos insulation were falling to the floor and the amount of time the insulation was likely damaged, I am satisfied that there was likely a significant amount of friable asbestos-containing insulation that fell onto building surfaces over time that was being disturbed by the movements in the Map Room (worker’s movements, pipe movements/vibration) on a frequent basis. As such, I find the worker was in the immediate vicinity of disturbed friable asbestos-containing insulation which had fallen onto building surfaces in the Map Room, which would be a health risk reported by the Royal Commission on Asbestos.

I recognize that mesothelioma is closely linked with asbestos exposure. The Scientific Review Document Prepared for the WSIB titled Non-Schedule 4 Asbestos Exposure and Mesothelioma, April 2002 states in part:

If the latency interval between first exposure and the disease is short, it is unlikely the exposure caused the cancer. All mesotheliomas have a long latency interval of about 35-40 years on average. Cohort studies rarely show mesothelioma cases with less than a 15-20 year latency. Those few that have shorter latencies are likely to be among the cases with non-occupational causes. Therefore if the latency is less than 15 years, a relation to the work exposure is unlikely, but not impossible. Latencies as low as 10 years should still be considered in the presence of occupational asbestos exposure.

A number of non-asbestos causes of mesothelioma have been suggested in the literature, but these remain speculative, and for adjudicative purposes they can be disregarded. Smoking is not a risk factor for mesothelioma. The majority of mesotheliomas not related to asbestos exposure are idiopathic (of spontaneous occurrence with unknown origin).

I note that the worker was assessed by Dr. Spadafora, Oncologist, in 2007 who noted the worker from 1969 to 2000 worked in areas with open ceilings with exposed pipes. In the letter of April 10, 2008, Dr. Spadafora strongly disagreed with the EA’s assessment of the worker’s claim (as per the denial letter of January 7, 2008) and indicated that the worker had no other exposure to asbestos except through his workplace. The doctor also stated that there is a link between asbestos and mesothelioma, and was unsure how the EA could dispute the worker’s mesothelioma was not work-related.

Based on Dr. Spadafora’s letter, she supported that the worker’s mesothelioma was causally related to his exposure to asbestos while working. Noting that Dr. Spadafora is a trained medical professional who specializes in oncology (the prevention, diagnosis and treatment of cancer) and that she specifically assessed and treated the worker, I place significant weight on Dr. Spadafora’s opinion.

With respect to the latency period between the worker’s exposure to asbestos which occurred at the very least in 1990 (likely several years prior to this) and the development of his mesothelioma in 2007, I note that the worker has a minimum latency period of 17 years (with a likely longer latency period), which is consistent with cohort studies.

Having reviewed the available evidence including the worker’s accepted exposure to asbestos at work, the latency period of his mesothelioma (at least 17 years), the link between mesothelioma and asbestos exposure, the opinion of Dr. Spadafora, and in the absence of any other established cause of the worker’s mesothelioma, I find the weight of the evidence before me establishes the worker’s mesothelioma was causally related to his employment exposure to asbestos. Therefore, I am satisfied that on a balance of probabilities that the worker’s occupational exposure to asbestos during his employment career with the employer was a significant contributing factor in the development of his mesothelioma. Thus, the criteria in Policy 11-01-01 for ruling on initial entitlement to WSIB benefits have been met. Therefore, initial entitlement for mesothelioma is allowed.

CONCLUSION

Based on the evidence outlined in this decision, I conclude entitlement for mesothelioma is allowed.

The estate’s objection is allowed.

DATED June 25, 2018

S. Crisostomo

Appeals Resolution Officer

Appeals Services Division