APPEALS RESOLUTION OFFICER DECISION
decision number:
20220005
OBJECTING PARTY:
worker
RESPONDENT:
EMPLOYER, NOT PARTICIPATING
HEARING:
HEARING IN WRITING
HEARD by:
l. diaz, appeals resolution officer (ARO)
DECEMBER 30, 2021
ISSUE
The worker objects to the Adjudicator’s April 22, 2020 decision and the July 15, 2021 reconsideration which denied entitlement to an asbestos-related injury.
BACKGROUND
This claim was registered with the Workplace Safety and Insurance Board in August 2019 upon receipt of the Employer’s Report of Injury/Disease. The worker reported to their employer that recent clinical results, which the worker associated with chest pain, demonstrated potential asbestosis due to remote asbestos exposure while employed as a Maintenance Worker with the employer. The worker was 67 years old at the time of their claim for benefits.
The Adjudicator requested that an external Medical Consultant (MC) review the worker’s file to confirm the diagnosis and the compatibility of the diagnosis with the exposure history. Dr. McGoveran, MC, reviewed the worker’s file and commented that the intensity and duration of the worker’s exposures were unknown, and that an Occupational Hygiene (OH) assessment could assist in this regard. As a result, Dr. McGoveran indicated they could not comment on compatibility.
Adjudicator’s April 22, 2020 decision
In the April 22, 2020 decision, the Adjudicator concluded that they were not able to determine a confirmed diagnosis/condition relating to the worker’s exposures, and as a result, denied initial entitlement to an asbestos-related injury.
The worker’s file was then reviewed at the Appeals Services Division by an ARO who returned the worker’s file to the operating area, with the direction to provide additional information relating to the worker’s exposures and additional medical information.
After obtaining the additional information requested, and following an OH review of June 21, 2021, the Adjudicator re-referred the worker’s file for an external MC opinion. Dr. Sharma, MC reviewed the worker’s file on July 13, 2021.
Adjudicator’s July 15, 2021 reconsideration decision
Further to the July 15, 2021 reconsideration decision, the Adjudicator once again indicated that they were unable to determine a diagnosis/condition relating to the worker’s occupational exposures, and as a result, entitlement to a work-related condition arising from the worker’s employment was therefore denied.
Worker’s position
The worker did not provide a submission for consideration.
AUTHORITY
- Workplace Safety and Insurance Act
Section 2(1)
Section 15
Section 119
- Operational Policy Manual documents Published
11-01-01, Adjudicative Process November 3, 2008
11-01-02, Decision Making October 12, 2004
11-01-03, Merits and Justice October 12, 2004
16-02-05, Asbestosis March 15, 2005
ANALYSIS
I find the worker does not have entitlement to an asbestos-related injury under the claim. In arriving at this decision, I had regard for the relevant file information and the applicable Policies.
Occupational disease claims are adjudicated under Section 2(1) and Section 15 of the Act and by Regulations 3 and 4 of the Act. If the disease for which the worker is claiming entitlement to benefits is not listed in the Schedules and a relevant policy has not been developed, initial entitlement is determined based on the merits and justice of the individual claim. For entitlement to be granted, it must be shown that it is more probable than not that the circumstances of a worker’s employment and exposure history significantly contributed to the development of the condition being claimed.
However, occupational disease claim are also adjudicated in accordance with the criteria set out in Policy 11-01-01, Adjudicative Process, which specifies that a worker must meet all criteria for an allowable claim, as indicated in the ‘five point check’ system. This Policy will be reviewed in further detail below.
Review of occupational exposures
The OH review of June 21, 2021 was based on information gathered during interviews conducted with the worker, the employer, as well as the Occupational Hygienist’s understanding of the process/job in question. The worker does not dispute the contents of the OH report.
The worker reported being employed in the summers of 1971-1973, where they did grounds maintenance work at a military shooting range prior to starting full time employment with the employer. The following is noted with respect to potential exposures:
He recalled building targets using a wood frame covered with burlap to which he would apply a plaster-type coating. He recalled that the coating was made from a dry product that he would mix with water to make a thick paste with the consistency of porridge. Once dry, it formed a thick, hard surface that would leave a clean hole when shot with a bullet. He does not know what was in the product but recalled that it had an earthy odour.
From 1974 until 2007, the worker was one of two grounds maintenance workers. The Occupational Hygienist noted that the worker performed maintenance tasks at the FG, FN, and at the QH sites. These sites included a number of 19th century buildings as well some reproductions built in the 1930s. Many of these buildings appear to have been acquired by the employer in the late 1960s/early 1970s, after being used by the military, community or private owners. The worker provided the following information with respect to their exposures during this period of time:
The worker indicated the following about his duties during the summer:
A large portion of his work in the summer was mowing and maintaining extensive grass fields, lawns and moats.
He planted and maintained trees on the properties.
Once a week he went to QH (May-September/October) where he mowed the lawn and swept out the 200+ stone steps inside a monument. He indicated that it was very dusty and he wore a disposable