APPEALS RESOLUTION OFFICER DECISION
decision number:
20220098
OBJECTING PARTY:
worker
REPRESENTED by:
worker representative
RESPONDENT:
employer
REPRESENTED by:
self (not participating)
HEARING:
HEARING IN WRITING
HEARD by:
c. da cunha, appeals resolution officer
JULY 11, 2022
ISSUE
The average earnings used to calculate the periodic survivor’s benefits paid to the late worker’s spouse from April 24, 2021.
BACKGROUND
On July 29, 2020, the late worker first sought medical attention for back and leg pain, which was subsequently diagnosed as a large metastatic deposit arising from primary non-small-cell lung cancer.
The late worker started with the employer in 1973 and retired 2009. They worked in the employer’s foundry from 1973 to 1995 and in the employer’s engine plant from 1995 to 2009. In 2021, they passed away from the non-small-cell lung cancer.
On October 4, 2021, the Occupational Disease & Survivor Benefits Program (ODSBP) Adjudicator:
Granted initial entitlement to metastatic non-small-cell lung cancer, finding that the workplace exposures to asbestos significantly contributed to the development of the lung cancer;
Established the date of injury (DOI) as being July 29, 2020;
Determined that the late worker reached maximum medical recovery on January 19, 2021, with a permanent impairment evident, and referred them for a non-economic loss award determination; and,
Accepted that the work-related lung cancer caused the worker’s death.
The ODSBP Adjudicator subsequently considered entitlement to survivor benefits for the late worker’s spouse.
The ODSBP Adjudicator’s Decisions: On October 29, 2021, the ODSBP Adjudicator granted entitlement to monthly benefits for the late worker’s spouse from April 24, 2021. The ODSBP Adjudicator based the monthly benefit on determined earnings of $xx.xx per hour, 40 hours per week, which were the high-end earnings of a Foundry Worker on July 29, 2020, the DOI.
The ODSBP Adjudicator reconsidered and upheld the decision on November 19, 2021. The ODSBP Adjudicator found that, as per the Occupational Hygienist’s (OH) September 23, 2021 report, the late worker was not significantly exposed to asbestos from 1995 to 2009, while working in the employer’s engine plant. Therefore, the DOI earnings of a Foundry Worker, where the significant asbestos exposure occurred, were used to calculate the spouse’s monthly benefits.
The Estate’s Position: The estate representative argues that the spouse’s monthly survivor’s benefits should be based on the late worker’s actual earnings of $xx.xx per hour, 40 hours per week.
AUTHORITY
Operational Policy Manual
Published
18-02-09: Determining Average Earnings – Periodic Payments for Survivors
February 1, 2018
ANALYSIS
I have carefully considered all of the available information and relevant operational policy in reaching this decision. Having done so, I find that the spouse’s monthly survivor’s benefits are to be based on the earnings of a Storekeeper for the employer on July 29, 2020.
Operational policy 18-02-09, Determining Average Earnings – Periodic Payments for Survivors, is the determinative authority with respect to the issue before me. It states, in part:
If the deceased worker was no longer engaged in the accident/exposure job on the DOI, the WSIB may take into account the average earnings on the date of the worker's injury of a person engaged in the same trade, occupation, profession, or calling as the worker was engaged in and out of which the injury/disease arose.
The DOI is July 29, 2020. On that date, the late worker had been retired for over 11 ½ years. Therefore, they were no longer engaged in the accident/exposure job on the DOI. This is not in dispute.
The question that remains, therefore, is “what is the trade, occupation, profession, or calling that the late worker was engaged in, out of which the lung cancer arose?”
The Operating Area founded the October 29, 2021 and November 19, 2021 decisions regarding the earnings basis on the fact that the late worker’s most significant work-related asbestos exposures occurred from 1973 to 1995. While this may be so, it does not necessarily mean that the work-related asbestos exposures from 1995 to 2009 were not also, on a balance of probabilities, significant contributing factors in the development of the lung cancer. In order to determine this, one must look at the expert opinions on file (i.e. from the OH and the Occupational Medicine Consultant (OMC)).
On September 23, 2021, the OH provided the following expert opinion regarding the work-related asbestos exposure from 1973 to 2009:
Asbestos:
The worker’s greatest exposure to airborne asbestos would have occurred during their earlier employment period (1973-1984). The worker’s greatest direct exposure likely occurred intermittently prior to 1982, during tasks such as housekeeping or sweeping as a junior labourer, ladle repair tasks (1981-82), working adjacent to furnace doors as a melt controller or metallurgist assistant. Their exposure to peak concentrations over short durations may have also occurred indirectly due to the activities of other tradesmen (pipefitters, welders, bricklayers) in the foundry environment. Their daily average exposure is expected to have been low to moderate when compared to pipefitters , welders or casting operators with intermittent periods of noteworthy exposure (greater than 0.1f/cc). Their exposure from 1995-2008, as a tool setter and lathe operator in the Engine plant is expected to have been trace to low or more limited.
The OH opined that the worker’s greatest exposure to airborne asbestos at work occurred from 1973 to 1984, with direct exposure likely being greater prior to 1982. While the OH stated that the worker’s exposure to friable asbestos from 1995 to 2009 in the engine room would likely have been trace to low or more limited, she did not opine that there was no exposure. Therefore, based on the OH review, the late worker was likely exposed to airborne asbestos from 1973 to 2009, with the greatest exposure having occurred prior to 1982.
Furthermore, on September 30, 2021, Dr. J. Razavi, OMC, reviewed the evidence on record, including the OH’s report. After doing so, he provided the following expert medical/scientific opinion, in part:
I am unable to rule out that his asbestos exposure based on the dose, the latency played a role in their development of their lung cancer. This was in the background of their smoking history. I.e. the both acted synergistically [emphasis added] and developing their lung cancer.
In my opinion, the workplace exposures synergistically with their smoking history played significant role in the diagnosis of non-small-cell lung cancer.
Dr. Razavi’s opinion was that the cumulative work-related exposures to asbestos (i.e. from 1973 to 2009), combined with the late worker’s smoking history (i.e. 8-pack year), conspired to create a far greater impact on the development of the lung cancer than each factor would have done on their own.
The Operating Area granted initial entitlement to metastatic non-small-cell lung cancer based on the opinions of the OH and the OMC. These opinions confirm that the work-related asbestos exposures from 1973 to 2009 were, on a balance of probabilities, significant contributing factors to the development of the lung cancer because they, on a cumulative basis, acted synergistically with the late worker’s smoking history. Therefore, I find as the late worker was no longer engaged in the accident/exposure job on the DOI (i.e. Storekeeper), the spouse’s monthly payments are to be based on the average earnings of a Storekeeper for the employer on July 29, 2020.
CONCLUSION
I find that the spouse’s monthly survivor’s benefits are to be based on the earnings of a Storekeeper for the employer on July 29, 2020.
The estate’s objection is, therefore, allowed.
DATED July 11, 2022.
C. da Cunha
Appeals Resolution Officer
Appeals Services Division