Decision #123/17 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that her claim for compensation was not acceptable. A hearing was held on June 21, 2017 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

In July 2015, the worker filed a claim with the WCB stating that she had been diagnosed with mesothelioma.

On July 29, 2015, the worker advised the WCB that she was diagnosed in May 2015. She had been having a lot of breathing difficulties which eventually led to the diagnosis. Regarding her employment history, the worker said her first job was working at a hospital in the accounting department. In 1970, she became employed with a school division, and worked as a secretary and librarian until her retirement in 1996. The worker believed that her exposure to asbestos occurred during the 1986-1987 school year. She said the school she was in was very old and was subsequently torn down. It was her job to check the basement during fire drills at the school. This would take approximately 15 to 20 minutes and usually happened once a month. As it was a very old building, there was always lots of "stuff" hanging from the basement ceiling and pipes, which she believed was most likely asbestos insulation.

The worker said she was not aware of any other possible exposures. No major renovations had been done in the homes she lived in, except for finishing a basement. She never changed brake pads on vehicles and never smoked.

On July 29, 2015, the WCB asked the employer to provide information regarding the worker's specific job duties, a list of irritants she may have been exposed to, and the length of exposure with each irritant.

In email correspondence dated July 31, 2015, the employer's Safety and Health Officer advised that the worker was employed with the school division from September 1971 to June 1997. She started her career as a library clerk and ended as a secretary/clerk. In 1986-1987, she was working as a secretary, and her duties included typing, filing and general office duties. The school she worked in during that time had been demolished. The worker would have accessed the basement as part of fire drills and emergency evacuation procedures 10 times per school year, for about 2 to 5 minutes each time. The worker's job duties did not require her to work directly with any irritant materials. The basement of the school, which was no longer in existence, may have had pipe insulation that contained asbestos material.

On August 31, 2015, the worker's son advised that his mother would have to go into the school basement via a ladder, and that it was an all-earth, as opposed to a concrete-poured, basement.

In a note dated September 1, 2015, the case manager documented that the school which was referenced by the worker was demolished around 1988 or a little later.

On September 21, 2015, the Director of the employer's Maintenance Department advised that the school was approximately 100 years old when it was demolished. The school would have used an old steam heating system and there would have been asbestos containing material on the pipes. The Director was not able to comment on the condition of these materials. He said he tried to speak to some long-term/former employees, but no one was able to provide any information. He did not have any idea regarding the general state of repair of the school. There would have been other maintenance workers in the basement who would have had direct contact with the piping system on a frequent basis, but the employer had not seen any claims for asbestos-related conditions. He was not able to confirm that there was a dirt floor.

On September 28, 2015, the WCB case manager noted that a review of WCB claims for the school division did not show any prior asbestos-related claims filed in relation to the school where the worker had worked.

By letter dated September 29, 2015, the worker was advised by Compensation Services that the WCB could not accept responsibility for her claim for compensation. The case manager advised that the WCB was unable to confirm that the worker's asbestos-related condition had developed as a result of her employment. Although there may have been asbestos present in the school where she worked, the mere presence of asbestos in a building does not mean that the health of the building occupants is endangered. The WCB was unable to establish that the worker was exposed to airborne asbestos. On October 15, 2015, the worker appealed the decision to Review Office.

On November 13, 2015, Review Office determined that the claim was not acceptable. Review Office gave significant weight to the following:

• The activity of inspecting the school basement during fire drills was performed on an infrequent and minimal time basis, and did not require the worker to be in direct contact with (handling or working with) asbestos. 

• The school was demolished several years ago and there was not a lot of information regarding the materials (asbestos) used/located in the school basement. Review Office therefore found that the existence of asbestos was not confirmed. 

• There was a possibility the worker's condition might be caused by airborne exposure, but Review Office was not able to confirm the existence of the worker being in a location near asbestos in her work environment. Review Office found that the activity of inspecting the basement was for a very short duration. 

• There were no reports of asbestos-related conditions for maintenance workers who worked on a frequent basis in the school's basement and in direct contact with the piping system. The adjudicator had reviewed the WCB claims for the school and no prior asbestos-related claims had been filed.

Review Office determined there was insufficient evidence to support that there was a workplace exposure which caused an injury. It determined that an "accident" as defined in subsection 1(1) of The Workers Compensation Act (the "Act") had not been established and the claim was therefore not acceptable. On January 10, 2017, the worker's daughter appealed Review Office's decision and a hearing was arranged.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's Board of Directors.

Subsection 4(1) of the Act provides that where a worker suffers personal injury by accident arising out of and in the course of employment, compensation shall be paid to the worker.

Subsection 1(1) of the Act provides the following definitions:

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

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured.

"occupational disease" means a disease arising out of and in the course of employment and resulting from causes and conditions 

(a) peculiar to or characteristic of a particular trade or occupation; 

(b) peculiar to the particular employment; or 

(b.1) that trigger post-traumatic stress disorder; but does not include 

(c) an ordinary disease of life; and 

(d) stress, other than an acute reaction to a traumatic event.

WCB Policy 44.20, Occupational Disease, addresses the adjudication of claims involving disease. The term "peculiar to the particular employment" is defined in that Policy as follows:

A disease will be described as being peculiar to the particular employment if: 

1. there are factors identifiable in that workplace that are known to cause the disease, or 

2. there is scientific evidence acceptable to the WCB that the particular workplace is the cause of a significantly increased risk of the disease even though the cause has not been identified, or 

3. a factor can be identified at the workplace as being the proximate cause of the disease.

Worker's Position

The worker was represented at the hearing by her daughter, who was accompanied by the worker's other daughter and the worker's son-in-law. Unfortunately, the worker had passed away less than one month prior to the hearing. The worker had previously authorized her daughter to represent her on the appeal, and her other daughter and son to provide support regarding the appeal. At the hearing, the daughters advised that the worker's son was the executor of their mother's estate, and that he was aware of the nature of the case they would be advancing and supported their appearance at the hearing of the appeal. The representative's position was that on a balance of probabilities, it was more likely than not that the worker contracted mesothelioma from being exposed to asbestos while performing her monthly fire drill duties at the school, and her claim ought to be accepted.

The representative noted that in May 2015, the worker was diagnosed with advanced malignant mesothelioma - stage 2. Before her diagnosis and prognosis, she had experienced above average health and led a robust lifestyle.

It was submitted that as one of the worker's duties during the 1986-1987 school year, the worker completed monthly fire drill checks for about 2 to 5 minutes each time. Her repeated exposure to asbestos likely occurred at this time, while she was walking in the school basement, and most likely compromised her health. The worker was 50 years old at the time, and her diagnosis of advanced mesothelioma in 2015 was consistent with the latency period attributed to this disease.

The representative submitted that most people with malignant mesothelioma have worked or lived in places where they inhaled or swallowed asbestos. Malignant mesothelioma is an aggressive form of cancer, the only known cause of which is asbestos exposure. It usually takes a long time, from 15 to 40 years after being exposed to asbestos, for malignant mesothelioma to form.

The representative noted that the Director of the employer's Maintenance Department stated that the school would have used an old steam heating system and there would have been asbestos containing material on the pipes. He was not able to comment on the condition of the materials or general state of repair of the school or to confirm that there was a dirt floor.

It was submitted that the workplace was the most likely environment where the worker could have been exposed to asbestos. She did not live with a person who worked near or with asbestos and her home almost certainly did not contain asbestos. There was asbestos in the workplace, in the asbestos containing material on the pipes connecting with the boiler heating system in the basement, and more generally in a building of that age, in the floor and ceiling tiles. The worker had indicated that the school was a very old, deteriorated building. There was always a lot of stuff hanging from the basement ceiling and pipes, and she completed her monthly fire drill checks in the basement walking on raw earth.

It was submitted that evidence that there were no records or indication other individuals had submitted claims did not mean there were no asbestos or mesothelioma cases related to the school environment where she worked. The worker's recollection was that a minimum number of employees would have done that task consistently. Further, it had to be recognized that this is a very rare form of cancer, and not everyone who is exposed to asbestos will develop mesothelioma. Given the long latency period, the very few afflicted may have also died of other causes or not known to submit a WCB claim. 

The representative noted that they could not confirm the condition of the carcinogenic materials at the school, as it was demolished in 1988 and the evidence was therefore destroyed. The reason for demolishing the school had not been disclosed, but in their submission, this 100-year old building was likely demolished because it was obsolete and unsafe.

In conclusion, the representative submitted that the most likely cause of the worker having contracted mesothelioma was as a result of there being asbestos in the school, not only in the basement with the old steam heating system and asbestos containing material on the pipes, but also generally in the building's ceiling and floor tiles, and the school's ongoing maintenance and renovations. The worker likely inhaled asbestos dust from the pipes and/or earth floor. It was submitted that, on a balance of probabilities, the worker contracted mesothelioma working at the school, performing her monthly fire drill duties and having been exposed to asbestos, a known carcinogen.

Employer's Position

The employer was represented by an advocate, who provided a written submission in lieu of attending the hearing.

The employer's position was that it was unlikely, on a balance of probabilities, that the worker acquired mesothelioma from possible, but not substantiated, minimal exposure to asbestos walking through the school basement.

The advocate noted that the worker worked at the school for one year. She was required to check the basement for children during fire drills where she may have been exposed to asbestos. The employer indicated that this process took about 2 to 5 minutes, and was carried out once a month.

It was noted that the school was torn down in 1988, and there is no information available with respect to the state of the school or the condition of the pipes or insulation in the school basement. While there may have been asbestos in the school, there is no actual information that this was the case.

The advocate referred to information attached to her submission as indicating that asbestos was commonly used in public and commercial buildings, including schools, and in many older houses before its deleterious effects were known. It was submitted that even then, while asbestos remains present in these buildings, it is not a problem unless it is disrupted or handled without proper precautions.

It was submitted that millions of people have been exposed to asbestos, but do not develop mesothelioma simply from living or working in a building where it is present. Generally, workers who are most at risk of developing mesothelioma work in trades where they come into direct contact during remodeling, renovations or removal of asbestos. As the asbestos particles are contained within the building materials, they are not likely to be found in the air in large numbers. The risk of exposure is likely to be very low unless the particles escape into the air when disturbed.

The advocate further submitted that the risk of developing mesothelioma is also loosely related to how much asbestos a person is exposed to and for how long. The information provided also showed that family members of people exposed to asbestos at work can contract mesothelioma from fibres brought home on their clothes, and that mesothelioma occasionally develops in people who have never been exposed to asbestos.

In conclusion, it was submitted that there was not sufficient evidence to support workplace exposure causing injury in this case, and the appeal should be denied.

Analysis

The issue before the panel is whether or not the claim is acceptable. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's mesothelioma arose out of and in the course of her employment, or in other words, was causally related to her employment. For the reasons that follow, the panel is unable to make that finding.

The panel accepts the acknowledgement by the Director of the employer's Maintenance Department that the school where the worker was working in the 1986-1987 school year would have used an old steam heating system and there would have been asbestos containing material on the pipes. The panel is unable to find, however, that exposure to asbestos in the school would have led to the worker contracting mesothelioma.

It is the panel's understanding that asbestos containing materials do not pose a health risk to people working or living in buildings when left intact and undisturbed. Asbestos is hazardous when it is friable, or easily crumbled by hand, releasing fibres into the air. Non-friable asbestos contained in material such as ceiling and floor tiles would not release asbestos fibres unless they were disturbed or damaged in some way. Asbestos pipe and boiler insulation would not present a hazard unless the protective covering was cut or damaged such that the asbestos underneath was released to the air.

The employer was unable to provide information concerning the state of the school building or the condition of the heating system and pipes prior to or at the time the school was demolished. The worker was unfortunately no longer available to provide evidence. In her absence, the panel questioned her daughters and son-in-law with respect to their recollection of anything she may have told them with respect to the state of the school building, and the basement in particular, and her fire drill duties.

The family members recalled that the worker said the basement was a full basement with a high ceiling as opposed to a crawl space. They said the worker only spoke of there being a boiler system in the basement and pipes that were wrapped, and they did not know what else might have been there. The worker had also described seeing stuff hanging which was dusty and dirty, but they could not provide any more detail in this regard. They recalled that the worker described it as a 10 to 20 minute process to open the trap door to the basement, go down the ladder, and walk from one end of the building to the other and back again, then climb out of the basement.

The worker's daughter and son-in-law further recalled that the worker had said the boiler system in the school was just like the one in her daughter and son-in-law's former house, but bigger. They described the pipes in their former house as being wrapped in a white tape; that "essentially it was just a white wrap and it was pretty contiguous, without too many tears or rips…or any stuff falling down" and the "boiler was all patched with asbestos cement." With respect to the wrap on the pipes, the son-in-law further stated that "there was probably little picks and scratches in it…and it concerned me somewhat because I was somewhat aware of the hazard, but there was very little tears or there wasn't any large portions that were ripped out or poked in or whatnot…It was pretty much contiguous." The representative agreed that if the worker said the school boiler system looked like theirs, it would be fair to say that the worker's best recollection of what the boiler and piping in the school basement looked like when she went down the basement was that it was a lot like theirs.

The panel finds that the evidence does not suggest that the heating system or any asbestos containing material was in a state of disrepair in the 1986-1987 school year. Further, there is no evidence of any construction, renovations or removal of asbestos having taken place in or around that time, or of the worker having been directly exposed to airborne asbestos as a result. While the panel accepts that asbestos containing material was present in the workplace, we are unable to find that the mere presence of such material in the workplace is sufficient to establish that the worker's mesothelioma was caused by, or causally related to, her employment.

Based on the foregoing, and on a balance of probabilities, the panel is unable to find that the worker's mesothelioma arose out of and in the course of her employment. The claim is therefore not acceptable.

The worker's appeal is denied.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of August, 2017

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