Smoking and old age as much factors as career in nickel smelter: Tribunal
The Ontario Workplace Safety and Insurance Appeals Tribunal has denied the claim of a miner who developed lung cancer after nearly four decades in the mining industry.
The worker was employed at a nickel smelter from 1937 until his retirement at age 60 in 1975. For 29 of those years, he worked in the roasters, which featured natural gas burners and asbestos insulation. This insulation was often damaged and came loose around the roasters area. Large cleaners were used to remove dust and gases from the roasters, which often became clogged with asbestos and nickel dust and workers had to use a shovel to break the crust. Sometimes, dust would enter the air if a cleaning machine wasn’t working properly. Over the years, the worker was exposed to nickel, arsenic, sulphur dioxide and coke in addition to asbestos.
After the worker retired, the employer gradually implemented stricter protocols on cleaning and removing asbestos dust. The insulation on the roasters was changed to fiberglass and workers wore respirators when cleaning up old asbestos.
The employer also established an asbestos register, which was intended to list all workers with significant exposure to asbestos, two years after the worker retired.
The worker’s medical reports indicated he smoked regularly for 28 years, from the age of 21 to 47, and quit in 1964.
Worker developed lung cancer in old age after years of asbestos exposure at work.
In 1999, he was diagnosed with lung cancer and he died of the disease a year later at age 85. Before he died, he filed a workers’ compensation claim, arguing his cancer was the result of exposure to carcinogenic materials during his nickel mining career.
After his death, his estate pursued the claim, arguing the protection the worker was provided during his time in the smelter was inadequate. It also argued that, regardless of the levels of individual substances in the workplace, the total exposure to sulphur dioxide, arsenic, nickel, asbestos and coke acted “synergistically” and contributed to his lung cancer. In addition, though the worker smoked for 28 years, he quit more than 30 years before contracting lung cancer. He also worked in the smelter for more than a decade after he quit, said his estate.
The tribunal heard evidence from several medical experts indicating the worker’s exposure to nickel dust, chromium and arsenic was “minimal or very low.” It also heard that cigarette smoking was “probably the major etiological factor” in the worker’s lung disease, but the exposure to environmental carcinogens at work could also be instrumental in the cancer’s development. However, asbestos wasn’t mentioned as a relevant exposure.
According to the Ontario Workplace Safety and Insurance Board policy manual, lung cancer in asbestos workers was considered an industrial disease for workers exposed to the material in their work. However, there had to be a “clear and adequate history” of at least 10 years of occupational exposure and at least 10 years between the first exposure and the appearance of lung cancer. For nickel exposure, the policy manual required a worker to have been exposed to specified levels.
The tribunal found the worker should not be considered an “asbestos worker” under the policy manual since his exposure to asbestos was occasional and he did not work directly with asbestos products.
It also found he was not one of the smelter employees who were the most exposed to asbestos because he wasn’t on the asbestos registry. The register was the result of the employer’s effort to identify as many exposed workers as possible, said the tribunal, and the worker’s omission from the list suggested his exposure was limited.
The tribunal also found the exposure to asbestos dust from the cleaning machines was also very limited, to less than one hour per month.
The total exposure to asbestos, the tribunal felt, was less than the 10-year threshold for asbestos workers outlined in the policy manual. It found the same for nickel, arsenic and other materials.
Since there was no evidence of significantly high exposure to the substances identified as potential causes for lung cancer, the tribunal found the worker’s smoking history and age were more likely to be direct causes of the disease.
“There is another reasonable explanation for the worker’s lung cancer, quite aside from his workplace exposure,” said the tribunal. We note also that he was 84 years old at the time of his diagnosis, and so there is no evidence that occupational exposures might have led to an unusually early onset of cancer.”
The tribunal dismissed the claim.
For more information see:
•Decision No. 2013/05 (July 7, 2011), E.J. Smith — V-Chair (Ont. W.S.I.A.T.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information visit www.employmentlawtoday.com.
The worker was employed at a nickel smelter from 1937 until his retirement at age 60 in 1975. For 29 of those years, he worked in the roasters, which featured natural gas burners and asbestos insulation. This insulation was often damaged and came loose around the roasters area. Large cleaners were used to remove dust and gases from the roasters, which often became clogged with asbestos and nickel dust and workers had to use a shovel to break the crust. Sometimes, dust would enter the air if a cleaning machine wasn’t working properly. Over the years, the worker was exposed to nickel, arsenic, sulphur dioxide and coke in addition to asbestos.
After the worker retired, the employer gradually implemented stricter protocols on cleaning and removing asbestos dust. The insulation on the roasters was changed to fiberglass and workers wore respirators when cleaning up old asbestos.
The employer also established an asbestos register, which was intended to list all workers with significant exposure to asbestos, two years after the worker retired.
The worker’s medical reports indicated he smoked regularly for 28 years, from the age of 21 to 47, and quit in 1964.
Worker developed lung cancer in old age after years of asbestos exposure at work.
In 1999, he was diagnosed with lung cancer and he died of the disease a year later at age 85. Before he died, he filed a workers’ compensation claim, arguing his cancer was the result of exposure to carcinogenic materials during his nickel mining career.
After his death, his estate pursued the claim, arguing the protection the worker was provided during his time in the smelter was inadequate. It also argued that, regardless of the levels of individual substances in the workplace, the total exposure to sulphur dioxide, arsenic, nickel, asbestos and coke acted “synergistically” and contributed to his lung cancer. In addition, though the worker smoked for 28 years, he quit more than 30 years before contracting lung cancer. He also worked in the smelter for more than a decade after he quit, said his estate.
The tribunal heard evidence from several medical experts indicating the worker’s exposure to nickel dust, chromium and arsenic was “minimal or very low.” It also heard that cigarette smoking was “probably the major etiological factor” in the worker’s lung disease, but the exposure to environmental carcinogens at work could also be instrumental in the cancer’s development. However, asbestos wasn’t mentioned as a relevant exposure.
According to the Ontario Workplace Safety and Insurance Board policy manual, lung cancer in asbestos workers was considered an industrial disease for workers exposed to the material in their work. However, there had to be a “clear and adequate history” of at least 10 years of occupational exposure and at least 10 years between the first exposure and the appearance of lung cancer. For nickel exposure, the policy manual required a worker to have been exposed to specified levels.
The tribunal found the worker should not be considered an “asbestos worker” under the policy manual since his exposure to asbestos was occasional and he did not work directly with asbestos products.
It also found he was not one of the smelter employees who were the most exposed to asbestos because he wasn’t on the asbestos registry. The register was the result of the employer’s effort to identify as many exposed workers as possible, said the tribunal, and the worker’s omission from the list suggested his exposure was limited.
The tribunal also found the exposure to asbestos dust from the cleaning machines was also very limited, to less than one hour per month.
The total exposure to asbestos, the tribunal felt, was less than the 10-year threshold for asbestos workers outlined in the policy manual. It found the same for nickel, arsenic and other materials.
Since there was no evidence of significantly high exposure to the substances identified as potential causes for lung cancer, the tribunal found the worker’s smoking history and age were more likely to be direct causes of the disease.
“There is another reasonable explanation for the worker’s lung cancer, quite aside from his workplace exposure,” said the tribunal. We note also that he was 84 years old at the time of his diagnosis, and so there is no evidence that occupational exposures might have led to an unusually early onset of cancer.”
The tribunal dismissed the claim.
For more information see:
•Decision No. 2013/05 (July 7, 2011), E.J. Smith — V-Chair (Ont. W.S.I.A.T.).
Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective. For more information visit www.employmentlawtoday.com.
