The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held via teleconference on November 28, 2005, at the request of a worker advisor, acting on behalf of the worker. The Panel discussed this appeal on the same day.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Decision: Unanimous

Background

In September 2004, the worker filed a claim with the Workers Compensation Board (WCB) for a respiratory condition that he related to his employment activities which involved exposure to asbestos fibers.

The employer's September 30, 2004 accident report indicated that the worker was experiencing respiratory problems and that he would be seeing a specialist during the week of October 4, 2004. The employer noted that the worker may have been exposed to air borne asbestos during his career while working underground. It stated that one such incident was reported to the WCB in 2001.

On September 28, 2004, the worker was asked by the WCB to fill out a "Worker's Claim for Industrial Chest Conditions" form which he did on October 4, 2004. The form provided the WCB with details concerning his employment history, details about the onset of his condition, etc.

An "Incident And Injury Report" dated May 30, 2001 stated, "Potential for exposure to air borne asbestos on [worksite]. The suspect ore was being trammed on the level for approx. 3 weeks before they were made aware of it."

On December 14, 2004, a WCB internal medicine consultant reviewed the medical information on file and stated that the diagnosis of the worker's condition was malignant mesothelioma. He stated that the predominant cause of malignant mesothelioma was exposure to asbestos and that the exposure in this case seemed to have occurred at the workplace. With regard to known risk factors, the consultant stated that the latency period may be between 30 to 40 years from the time of asbestos exposure to the development of mesothelioma.

On December 29, 2004, the worker was informed that his claim for compensation was being accepted as the WCB was able to confirm his exposure to asbestos with the accident employer.

In January 2005, the accident employer's safety and health manager expressed concerns over the acceptance of the claim as he noted that the worker had been exposed to asbestos while working for other employers in the 60's and 70's.

On January 10, 2005, a WCB adjudicator obtained additional information from the worker concerning his employment history. The worker could not recall performing any specific hands-on work with asbestos material or products with other companies. He stated that he worked on mine hoists for the accident employer and other companies that utilized large braking systems. He was unsure if they were asbestos lined or not. The worker recalled that the accident employer removed siding that contained asbestos. He also had two confirmed asbestos exposures in 1999 and 2001.

On January 11, 2005, a different adjudicator contacted the worker to gather further details about his employment history with other companies and his recollection of possible asbestos exposure with each company. The worker indicated that when he first started with the accident employer, they did work on cladding the head frame for the super structure over the shaft of the mine. He had to go in and out of the mine to get to this job and would therefore have been exposed to asbestos at that time.

In a memo addressed to the WCB's internal medicine consultant dated January 11, 2005, the adjudicator summarized the worker's employment history. He stated that the worker had worked for a number of different companies over the years as an electrician. The worker started with the accident employer as an electrician's helper in 1965 but left shortly after to pursue other work. The worker returned to work with the accident employer in 1989 and has worked there as a mine electrician up until the present. The adjudicator noted that the worker was exposed to asbestos in 2001 but he was still trying to confirm exposure to asbestos earlier on in his working career with the accident employer. Based on this information, the adjudicator asked the consultant to comment on whether or not it was reasonable to say that the worker's condition could have occurred during his employment with the accident employer from 1989 to date. In response, the consultant stated "…the minimum latency period is stated to be 15 years and the maximum is 50 years. I would like to make two more points. The first one is that development of mesothelioma is also dependant on degree of exposure and cigarette smoking has no affect on the development of mesothelioma."

On February 4, 2005, the accident employer provided the WCB with information regarding its Occupational Exposure Monitoring Program (OEMP) which evaluates a worker's exposure to known or potential hazards encountered on the job. It revealed that the worker was employed as an electrician since May of 1989. It noted that the worker's personal exposure records did not include monitoring for asbestos exposure because it was not an element of concern for his occupational code. It did demonstrate that the worker was exposed to levels of respirable dust and quartz which was well below the TLV's (threshold limit values). The report included data results from an extended monitoring program that was done in 1999-2000 at various areas and levels throughout the worksite. It stated that the majority of the results were well below half of the TLV's for asbestos. The report indicated that the worker would spend the majority of his work hours within the garage environment, limiting the possibility of exposure during the 2001 incident recorded as a statement of concern.

On May 30, 2005, the employer indicated that it investigated the equipment and workplaces where the worker did maintenance of railroad electrical arc chutes 2-3 times per week to identify possible asbestos content. It was concluded, "In summary - there is very little potential for asbestos exposure in the electrical duties at [the worksite]. Only 1 piece of equipment was found to contain asbestos. This part was very hard, cementitious and non-friable and therefore not a health hazard."

In a memo to file dated June 1, 2005, the adjudicator documented a telephone conversation that he had with the accident employer's director of mine safety. The director stated, in part, that asbestos in the workplace was negligible. The employer had good safety regulations and monitored any exposure to asbestos. The employer tested the ore and it was determined that there was none or very small amounts of asbestos that would not be of any concern.

In a decision of June 6, 2005, the adjudicator stated he was unable to determine that the worker's asbestos related lung condition was related to exposure to asbestos material while working with the accident employer. The adjudicator felt there was very little potential for asbestos exposure where the worker was employed. He noted that the worker had been employed as a mine electrician for many years and that he worked for many different similar companies starting in the early 70's. The chances of the worker's exposure to asbestos occurring prior to his employment with the accident employer was quite high and was in line with the latency period and the type of condition that the worker had.

On July 25, 2005, Review Office considered an appeal submission from the worker's representative dated June 27, 2005. Review Office concurred with the WCB adjudicator that the claim for compensation was not acceptable. Review Office was of the opinion that the file evidence did not confirm the worker's exposure to asbestos while employed with the accident employer.

In October 2005, a worker advisor appealed Review Office's decision and requested an oral hearing. On November 4, 2005, the worker advisor provided the Appeal Panel with additional information for consideration.

Reasons

The issue before the Panel was whether the worker's claim is acceptable. The worker's claim is for a medical condition arising from exposure to asbestos fibers in the workplace. For the appeal to succeed the Panel must find that the worker had sufficient exposure to asbestos in the workplace to cause his medical condition. The Panel was not able to reach this conclusion. The Panel found that the worker did not have sufficient exposure to asbestos and therefore the claim is not acceptable.

Applicable Legislative Provisions

For the claim to be acceptable, the worker must have suffered an injury as a result of a work related accident. Accident is defined in subsection 1(1) of The Workers Compensation Act (the Act) as

"accident" means a chance event occasioned by a physical or natural cause; and includes

1. a wilful and intentional act that is not the act of the worker,
2. any
   
   1. event arising out of, and in the course of, employment, or
   2. thing that is done and the doing of which arises out of, and in the course of, employment, and
3. an occupational disease,

and as a result of which a worker is injured.

Subsection 4(4) of the Act defines an occupational disease as:

Cause of occupational disease

Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Subsection 4(1) of the Act provides that compensation is payable where there has been an injury by accident arising out of and in the course of the worker's employment.

In applying these provisions, the Panel must determine whether the worker had sufficient exposure at the employer's workplace to cause the worker's injury.

Evidence and Argument at Hearing

A hearing was conducted by teleconference. The worker participated with the assistance of a worker advisor who made a presentation on his behalf. The worker answered questions posed by his representative and the Panel.

The employer was represented by its superintendent environment, occupational health and medicine. The employer representative made a presentation on behalf of the employer and answered questions posed by the Panel.

The worker advised that he worked for the employer for one year commencing in 1965 and then from 1989 onward. It is his belief that he was exposed to asbestos while working for this employer. With the assistance of his representative, he reviewed the areas/activities which he considered exposed him to asbestos. These included attending at and repairing damage caused by trolley fires where insulated wires burnt, circulation of contaminated air throughout the workplace by the ventilation system, use of asbestos gloves, use of asbestos cloths to protect electrical components, and working in the vicinity of the headframe which contained asbestos. The worker also reviewed his history of employment before he worked for this employer and advised that he was not aware of exposure to asbestos at any other workplace.

The worker's representative stated that the worker suffered a personal injury arising out of and in the course of his employment as a result of his exposure to asbestos in the workplace. The representative also stated that the worker's employment is the dominant cause of his medical condition.

With respect to the issue of a minimum 15 year latency period for the development of mesothelioma, the worker's representative noted that the worker was employed by the employer for one year in 1965 and was employed continuously since 1989, which he submitted fell within the minimum period.

The employer's representative indicated that monitoring tests have demonstrated that levels of asbestos fibers in the workplace are below TLV's enforced in Manitoba. Regarding latency and exposure the representative referred to the Ontario Royal Commission Report which stated that the shorter latency period of 15 years has been seen where the exposure was heavy, while 35 years and up is associated with moderate to low levels of exposure. She also stated:

"The research also reports that the no effects level, this is the level at which there is no effect from asbestos exposure, is given as 5 fibres per cc for a working life of 40 years and 8 fibres per cc per year for a working life of 25 years. The [employer] monitored levels are well under these limits."

The employer's representative asserted that the worker's work history indicates many years of employment in the electrical field prior to his work with this employer and suggests that the expected latency period is more consistent with exposure prior to his employment with this employer. The employer representative commented on each of the worker's concerns regarding possible exposure.

Analysis

The Panel has considered all the evidence including the evidence provided at the hearing and finds, on a balance of probabilities, that the worker's claim is not acceptable. In arriving at this conclusion the Panel relies upon the following evidence:

- information from a WCB internal medicine consultant that "…the minimum latency period is stated to be 15 years and the maximum is 50 years…the development of mesothelioma is also dependant on degree of exposure…" This information is consistent with the information provided by the employer representative at the hearing regarding latency periods and exposure. It is also consistent with the comments made by an occupational medicine physician recorded in a memo dated June 1, 2005. This physician suggests the worker's exposure is consistent with being exposed to a substantial amount of asbestos on a regular basis for a period of 20 to 30 years.

- Reports provided by the employer that the level of asbestos fibres in the workplace was below TLVs enforced in Manitoba and in the low exposure range for the purposes of latency.

- Descriptions of the worker's duties and activities while employed by this employer.

The Panel acknowledges the worker's concern that he may have been exposed to asbestos in the workplace but finds there are no confirmed incidents of significant exposure to asbestos while employed by this employer. Given the latency periods noted above, the Panel finds that the evidence does not establish that the worker had exposure to asbestos of sufficient significance to cause the worker's medical condition, while employed by the employer.

The Panel concludes that the claim is not acceptable as the evidence does not establish the dominant cause of the worker's respiratory condition as being related to his employment with the accident employer. Accordingly, the Panel finds that the worker did not sustain an accident arising out of and in the course of his employment. The appeal is declined.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 11th day of January, 2006