Decision #05/23 - Type: Workers Compensation
The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A hearing was held on October 13, 2022 to consider the worker's appeal.
Whether or not the claim is acceptable.
The claim is acceptable.
The worker submitted a Worker Incident Report to the WCB on January 18, 2021 reporting an injury to their lungs. The worker reported they worked in an area where they were exposed to asbestos and as a result, they have a persistent cough and asbestos in their lungs. In discussion with the WCB on January 26, 2021, the worker advised that they worked in a building, beginning in 1966, that had asbestos-wrapped water pipes. The worker noted the asbestos was removed from the pipes during the 1970s; however, while the removal was happening, the worker advised they were not provided with personal protective equipment. Further, the worker noted their exposure to asbestos would have been for about 10 years as their job duties changed in approximately the mid-1970s. The WCB contacted the employer on January 26, 2021 to request information regarding the worker's employment and the building they worked in.
On February 16, 2021, the WCB received a copy of a September 24, 2020 CT scan of the worker's chest, along with a September 25, 2020 report from the worker's treating respirologist. The CT scan indicated the worker had "Asbestos related pleural disease" and "Mild subpleural fibrosis." The respirologist’s report noted the worker was being seen for a history of chronic cough and that a 2013 CT scan of the worker's chest indicated "…bilateral pleural plaques with some calcification. There was no evidence of pulmonary nodules or fibrosis." The worker's treating respirologist ordered further testing.
After investigation, the employer provided information to the WCB on March 23, 2021. The employer advised they could not locate specific information on how long the worker was employed with them or confirmation of the worker's job duties but did find payroll information from 1976 to 1989. The employer further advised they found some documentation regarding asbestos testing and removal in the general area of the worker's job site dated 1993, which occurred after the worker was no longer working for the employer. On April 1, 2021, the worker contacted the WCB to advise that while the asbestos was being removed in the 1970s, the workers in the area were not provided with masks or any other type of personal protection equipment and were not advised it was asbestos that was being removed.
On April 6, 2021, the WCB received a copy of a November 12, 2020 report from the worker's appointment with the treating respirologist. The respirologist noted the worker had not reported any significant changes in their symptoms and continued to be able to walk a long distance with no significant shortness of breath. They recommended continued conservative management of the worker's asbestos related pleural disease and mild asbestosis. On April 6, 2021, the WCB also received chart notes from the worker’s family physician and a March 30, 2021 report in which the physician noted the worker was seen at their clinic for over 20 years for their lung symptoms and had been referred to several specialists. The family physician noted the worker’s “…bilateral pleural plaques suggestive of previous asbestos exposure were first reported on a CT scan in 2007 done because of a chronic cough” and that chest x-rays taken also found the pleural plaques dated April 4, 2017, August 22, 2015 and January 19, 2015. The family physician noted the treating respirologists had diagnosed the worker with bilateral pleural plaques on May 10, 2007, pleural plaques consistent with previous asbestos exposure on February 26, 2014 and May 10, 2017 and chronic cough in the setting of asbestos related pleural disease and mild asbestosis with mild subpleural fibrosis, most likely related to asbestosis on December 10, 2020. The family physician noted the worker was being treated with conversative management and regular follow-up.
On April 13, 2021, the WCB advised the worker their claim was not acceptable as a relationship between their lung difficulties and their employment could not be established. The WCB noted they confirmed the worker’s employment; however, it could not establish that the worker was exposed to asbestos in their workplace.
On September 22, 2021, the worker provided the WCB with a report from their treating respirologist in support of the claim. The respirologist confirmed treating the worker for a history of “…chronic cough in the setting of mild pulmonary fibrosis due to asbestos pleural plaque” and noted the worker had not reported any increase in shortness of breath with activity or wheeze and no recent bronchitis or pneumonia. Included with the respirologist’s report was a copy of a May 13, 2021 report from a physician with an interest in occupational medicine. The physician recorded the worker’s reported work history of working in a building that had hot water pipes covered with asbestos, which were repaired and had the asbestos removed while they worker was working in the building. The physician noted the worker could not recall any other exposure to asbestos, occupationally or otherwise. The physician examined the worker and provided a diagnosis of asbestos related pleural fibrosis and mild asbestosis and recommended further investigation regarding the hot water pipes in the building where the worker worked be undertaken.
On January 13, 2022, the WCB advised the worker that the additional information provided had been reviewed but there would be no change to the decision their claim was not acceptable. On January 19, 2022, the worker requested Review Office reconsider the WCB’s decision, noting in their submission that the building they worked in during the period of 1966 to 1972 contained pipes that were covered with asbestos and when those pipes broke, repairs were done with no masks or other personal protective equipment provided to the worker. The worker further noted the working condition was then dusty and they inhaled asbestos particles due to the repairs, which resulted in the worker developing a chronic cough.
On March 17, 2022, Review Office determined the worker’s claim was not acceptable. Review Office found the worker’s evidence was that they were not told by the employer that asbestos was being removed from their workplace and in addition, the employer did not have any records of asbestos exposure or removal in the area where the worker worked. Review Office concluded that a causal relationship between the worker’s difficulties and their employment could not be established.
The worker filed an appeal with the Appeal Commission on June 30, 2022 and a hearing was arranged. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was later received and was forwarded to the interested parties for comment. On December 6, 2022, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.
Applicable Legislation and Policy
The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations and policies of the WCB's Board of Directors. The provisions of the Act in effect on the date of the accident apply.
Section 4(1) of the Act provides for compensation to be paid by the WCB where a worker has sustained personal injury by accident arising out of and in the course of employment. Section 4(5) of the Act sets out the presumption that an accident that arises out of employment occurred in the course of employment unless the contrary is proven, and that an accident that occurs in the course of employment arouse of the employment, unless the contrary is proven. Section 28(1) of the Act provides for compensation to be paid where an accident results in the death of a worker. The term “accident” is defined in s 1(1) of the Act as follows:
“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,
(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 is also defined in s 1(1) of the Act, as “a disease arising out of and in the course of employment and resulting from causes or conditions” that are peculiar to or characteristic of a particular trade or occupation, or to particular employment or that trigger post-traumatic stress disorder but does not include an “ordinary disease of life” or “stress, other than an acute reaction to a traumatic event”.
WCB Policy 44.05, Arising Out of and in the Course of Employment (the “Arising Policy”) provides general information on the meaning of the phrase "arising out of and in the course of employment," and states, in part, that:
Generally, an injury or illness is said to have "arisen out of employment" if the activity giving rise to it is causally connected to the employment -- that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.
The worker appeared in the hearing and made an oral submission to the panel in support of their appeal. The worker was accompanied by their son who attended the hearing as an observer.
The worker’s position, as outlined to the panel in the hearing and in the information provided to the WCB file, is that as a result of their exposure to asbestos while working for the employer, the worker developed asbestosis and therefore, the claim should be acceptable.
The worker described working in the employer’s premises located in various buildings on a large site, many of which were connected by tunnels. The worker described their job duties, beginning in 1966 or 1967, which involved transporting supplies in pushcarts or with a tractor and trailer from building to building in all seasons. When it was snowy or rainy, the worker indicated that they used the tunnels to travel between the buildings. Those tunnels contained hot water or steam pipes that functioned to distribute heat through the various buildings. The worker’s department was based in one of the buildings, which also contained the powerhouse or boiler room. The worker confirmed they had little cause to enter the powerhouse part of the building, as their department had a separate entrance.
The worker indicated their belief that the pipes in the tunnels were wrapped with asbestos insulation as was common practice at that time and noted that when the pipes burst or leaked and were under repair, from time to time, the worker traveled through the area under repair pushing their cart, in the course of their job duties. The worker also recalled that when repairs were undertaken, the repair workers wore masks but those travelling through the area under repair were not provided with any protection. The worker also recalled repairs to the machines in their department in the early 1970s and that there was dust all over the place, with the contractors wearing masks.
On questioning by members of the appeal panel, the worker confirmed there was no asbestos in their own home and did not recall any exposure to asbestos in any other environment.
In sum, the worker’s position is that they were exposed to asbestos when walking or driving through areas under repair on the employer’s premises that contained asbestos insulation and that because of that exposure, they developed asbestosis. Therefore, the claim should be accepted.
The employer was represented in the hearing by its workers compensation coordinator who made an oral submission on behalf of the employer and relied upon materials submitted in advance of the hearing, shared with the worker. The employer’s representative provided a further written submission for consideration by the panel upon receipt of the additional information requested by the panel following the hearing.
The employer’s position is that the evidence does not support a finding that the worker’s asbestos-related health condition is the result of exposure to asbestos in the work environment. As such, the worker’s claim should not be accepted, and the decision of the Review Office should be upheld.
The employer’s representative confirmed the worker was employed from 1967-1995 and that the worker’s job duties to 1973 involved operating machines in their department, and from 1973-1995, involved transporting materials with a tractor or cart on the employer’s premises.
The employer’s position is that there is no evidence to support or confirm that the repairs the worker describes took place or that there was asbestos in those locations. While there is some evidence of the presence of asbestos in the employer’s premises, there is no evidence that there was any asbestos in the locations that the worker frequented in the course of their work. The employer’s representative acknowledged that there were few records available from that time and further acknowledged that the powerhouse part of the building where the worker was employed likely had asbestos present. The employer’s representative submitted that mere presence of asbestos in the environment does not mean that the worker was exposed to asbestos in the workplace and does not equate to causation, noting that asbestos is not a hazard unless “friable”.
The employer’s representative stated that the worker does not know they were exposed to asbestos at work and the evidence does not confirm it. The worker’s belief they were exposed to asbestos at work and that this exposure caused them to develop asbestosis is mere speculation, in the absence of confirming evidence.
In sum, the employer’s position is that while asbestos containing materials may have been present in the workplace, the mere presence of such material in the workplace is not sufficient to establish that the worker’s lung condition is causally related to their employment. As such, the claim should not be accepted.
The issue on appeal is whether the worker’s claim is acceptable. For the worker’s appeal to succeed, the panel would have to find that the worker sustained an injury as a result of an accident as defined by the Act, in this case, an occupational disease arising out of some hazard resulting from the nature, conditions or obligations of the worker’s employment, and in the course of that employment. As outlined in the reasons that follow, the panel was able to make such a finding and the worker’s appeal is therefore granted.
The panel noted that the medical evidence on file confirms that the worker has been diagnosed with asbestos related pleural fibrosis and mild asbestosis as early as 2014 with bilateral calcified pleural plaques recorded as early as 2007. This is not in dispute in this appeal and the panel accepts this diagnosis based on the medical evidence before us.
The issue on appeal relates primarily to whether the worker was or was not exposed to asbestos arising out of and in the course of their employment with the employer from 1967 to 1995. The panel therefore considered the evidence available as to the presence of asbestos on the employer’s premises where the worker undertook their job duties over a period of nearly 30 years. The employer’s position is that there is no such evidence and therefore the worker’s belief they were exposed to a hazard arising out of and in the course of their employment is not supported. The employer points to the lack of historical records in relation to its premises and any repairs conducted there.
The panel considered the available evidence which indicates:
• Asbestos samples were collected from “Old Powerhouse” on top of the out-of-service boilers and from loose debris on top of the firebrick wall surrounding the small boiler in March 1993;
• Asbestos cleanup was conducted on top of the boilers in April 1993;
• There were “some asbestos issues” within the buildings located on the employer’s premises that the worker would have travelled through in the course of their employment from 1973-1995 as described in an email from the employer’s representative to the WCB dated March 22, 2021; and
• The employer has “records of asbestos removal being done in the powerhouse area,…the steam tunnel, the sub-basement etc. but nothing specific to the [worker’s department] area” as set out in an email to the employer’s representative dated September 16, 2022 and provided to the Appeal Commission on September 29, 2022.
The panel also considered the evidence contained in the November 3, 2022 memorandum from the WCB to the Appeal Commission, provided in response to the request from the appeal panel. This memorandum confirms that in another claim related to a different employer but regarding the same premises as in this claim, a worker on the premises from 1964 to 1986 provided a statement to the WCB on February 8, 1996 describing their work “which included maintenance duties related to boilers, plumbing, and pipefitting. Specifically…the pipes that were in the powerhouse and ran to each of the 3…buildings through the tunnels. These pipes were covered with asbestos and he was regularly repairing them.” The memorandum noted that the claim was accepted on the basis of that worker’s asbestos exposure in the workplace and the resulting development of an asbestos related health condition.
Further, and as noted above, the worker testified to their belief, based upon their own observations, that the piping in the tunnels that they walked through on regular basis was wrapped with insulation containing asbestos and the worker also testified to being aware of the presence of asbestos wrapping on some of the machines in their department.
On the basis of this evidence, the panel is satisfied that there was asbestos present in the workplace and specifically in the areas that the worker frequented in the course of their work; however, as noted by the employer, mere presence of asbestos is not sufficient to establish that there is a causal connection between the worker’s development of an asbestos-related health condition and their employment.
The panel therefore also considered whether there is evidence to support a finding that the worker was exposed to friable asbestos as would be required to develop such a condition. The panel noted the worker’s testimony that they were exposed on multiple occasions to areas in the tunnels where insulated pipes were under repair and that the worker would travel through these areas without any protective equipment. The panel further noted that the evidence from the unrelated claim supports the worker’s belief that these pipes were wrapped in asbestos and were regularly under repair. The worker also testified that they were exposed to the repair of insulated machines in their department where the workers conducting the repairs were wearing masks, suggesting the presence of noxious materials. The panel noted the evidence of later asbestos removal activities during the period of the worker’s employment, albeit in another part of the building where the worker’s department was located as well as the information from the employer indicating asbestos removal was done in the steam tunnel where the worker traveled in the course of their work.
The panel further noted the absence of any evidence of other sources of the worker’s asbestos exposure, and the worker’s testimony that no asbestos has been found in their home which they’ve resided in since the 1960s and that none of their immediate family members have developed any asbestos-related conditions.
The panel is satisfied, on the basis of the totality of the evidence before us, on the standard of a balance of probabilities, that the worker was more likely than not exposed to friable asbestos arising out of and in the course of their employment.
We are further satisfied, on the basis of the totality of the evidence us and on the standard of a balance of probabilities, that as a result of the worker’s exposure to asbestos in the course of their work, the worker developed asbestos related pleural fibrosis and mild asbestosis. Therefore, we determine that the claim is acceptable, and the worker’s appeal is granted.
K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner
Recording Secretary, J. Lee
K. Dyck - Presiding Officer
(on behalf of the panel)
Signed at Winnipeg this 13th day of January, 2023