Former smoker gets benefits for cancer

Occupational asbestos exposure a factor in Ontario appeals tribunal’s decision

An appeals tribunal has overturned a previous denial of workers’ compensation benefits for a worker who developed lung cancer after years of exposure to asbestos at work.

The worker worked in an electrical motor shop from 1976 to 1982, where he took motors apart and handed them to electricians for building or repair. The motors used asbestos as insulation inside and the worker used asbestos cloths to put around the ends of wires in larger motors. He then worked as a butcher in meat shops from 1982 to 1984 before joining an automobile manufacturer as a tool setter in the company’s brake assembly shop. He worked in that shop until 1999.

The worker’s job in the automobile plant was located about 15 feet from the brake bounding assembly line — where asbestos brake linings were ground, drilled and riveted leading to airborne asbestos. For a 10-month period in 1984, he worked on the brake line.

In 1995, the worker experienced coughing and he was diagnosed with pulmonary fibrosis. After his retirement in 2000, his condition worsened. In 2010, he was diagnosed with non-small cell carcinoma in his right lung.

The worker made a claim for workers’ compensation benefits, claiming his lung cancer was caused by long-term, indirect exposure to asbestos in the workplace. He noted that he smoked about one pack of cigarettes per day for 20 years, but quit smoking in 1990.

The Ontario Workplace Safety and Insurance Board (WSIB) found that exposure levels in the auto shop where the worker was employed from 1985 to 1999 were measured by an occupational hygienist in 1991 to be negligible and well below regulated exposure limits. The hygienist couldn’t determine the cumulative exposure before 1991, which was the last year asbestos brake pads were used.

Given the lack of data before 1991, the WSIB determined the worker’s claim didn’t meet the requirements for asbestos exposure compensation — a history of at least 10 years of occupational exposure and at least 10 years between first exposure and the appearance of lung cancer. The claim was denied.

The worker died in November 2010 at 69 years of age. His estate appealed the denial of his claim.

The WSIB appeals resolution office upheld the claim denial, pointing to the findings of the occupational hygienist. In addition, a hospital report on the worker’s treatment stated that he had told doctors he had smoked one to two packs per day since the age of 16 and quit in 1992 — at 50 — meaning he had a much more significant smoking history than he had let on in his claim.

The appeals tribunal noted that “Questions still remain open as to what the exposure levels could have been prior to 1991” and there was no way of knowing the extent of the possibility of excessive exposure. This was significant, since the worker was employed in the auto shop for seven years before the 1991 measurements. According to the worker, no respirators were worn and he was only 15 feet away from the area where asbestos was exposed, for 15 years.

In addition, though the ministry of labour recorded low measurements for other electric motor shops in the 1980s, there was the possibility of some exposure in the job from 1976 to 1982.

Despite the worker’s smoking history, the tribunal found that “the medical literature consistently implicates asbestos as an important cause of lung cancer.” It also noted the worker had pulmonary fibrosis, another condition caused by occupational exposure to asbestos.

The tribunal found the worker’s exposure history to asbestos included six years in the electrical motor shop — where at least some level of exposure couldn’t be ruled out due to the presence of asbestos in that workplace — and seven years in the brake assembly plant before asbestos was phased out in 1991.

This totalled 13 years of possible exposure — especially during the worker’s 10-month assignment on the brake assembly line — that surpassed the 10-year exposure requirement for workers’ compensation benefits.

In addition, the worker began exhibiting symptoms in 1995 and was diagnosed with lung cancer in 2010, well past the 10-year time period required from first exposure. The worker was first indirectly exposed to asbestos in 1976 and then again in 1984.

The tribunal noted that the worker’s years of smoking likely contributed to his lung cancer and combined with the asbestos exposure likely multiplied the risk of developing it. However, the smoking wasn’t necessarily the only cause of his cancer, and it didn’t eliminate the likelihood the occupational exposure to asbestos contributed to the worker’s lung cancer, making him eligible for benefits.

The tribunal also sought the opinion of the WSIB’s independent medical assessor, who agreed the worker’s occupational exposure to asbestos increased the risk of developing lung cancer.

“I accept the reporting of the tribunal-appointed medical assessor… who concluded that the worker’s smoking and the worker’s asbestos exposures were both likely causal factors in the development of the lung cancer; and who concluded that the smoking and the asbestos exposures likely had a multiplicative effect as causal factors,” said the tribunal.

The tribunal overturned the earlier decisions of the WSIB and the appeals resolution office, awarding the worker’s estate entitlement to benefits for the worker’s lung cancer.

For more information see:

Decision No. 1328/14, 2016 CarswellOnt 18399 (Ont. Workplace Safety & Insurance Appeals Trib.).

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