The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that their claim is not acceptable. A teleconference hearing was held on March 4, 2024 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

The claim is not acceptable.

Background

The worker filed a Worker Incident Report with the WCB on August 29, 2022 reporting they developed mesothelioma as a result of working in buildings with asbestos while employed with the employer. In a discussion with the WCB on September 29, 2022, the worker advised the WCB they were employed with the employer for 33 years in total and had worked in various locations where renovations took place and noted their belief that they had been exposed to asbestos as a result of those renovations. The worker confirmed their symptoms began in January 2022, with left sided pain with further investigation confirming their diagnosis of mesothelioma in June 2022. When asked, the worker advised the WCB they had never smoked but had helped friends with basement renovations “…once or twice many years ago.”

A report from the worker’s oncologist was received by the WCB on October 18, 2022. The oncologist’s report detailed the worker’s history of illness, noting the worker initially experienced difficulties with progressive shortness of breath on exertion and left-sided lower chest pain while on vacation in January 2022, with testing confirming the diagnosis on June 16, 2022. The worker advised the treating oncologist they could not recall any known exposure to asbestos but did note they worked in many older buildings and may have been exposed to asbestos during renovations done in those buildings while they were employed by the employer. Further, the worker noted their belief they may have possibly been exposed to asbestos on their former spouse’s clothing worn while at work. The worker confirmed to the oncologist they had never smoked. Additional medical information was placed to the worker’s file on December 23, 2022, indicating the worker’s ongoing treatment.

On February 9, 2023, the employer confirmed to the WCB the worker had been employed with them from September 20, 1972 to January 7, 2005. In addition, the employer confirmed the locations the worker worked at during the period of their employment. On March 6, 2023, the WCB contacted the employer to request further information on the locations the worker worked at and whether or not renovations had been done while the worker was employed. On May 4, 2023, the employer confirmed two of the locations the worker worked at were owned by the employer with the third location leased. On May 31, 2023, the WCB requested additional information from the employer on any abatement records available for those locations. The WCB performed an internal investigation and confirmed the locations indicated by the employer had no statements of concern and none of the locations were listed as known asbestos sites. On August 14, 2023, the employer advised they had no abatement reports for those addresses.

The WCB advised the worker on August 14, 2023 their claim was not acceptable. The WCB advised a relationship between the worker’s respiratory difficulties and their employment could not be established. The worker’s representative requested reconsideration of the WCB’s decision to Review Office on September 13, 2023. In their submission, the representative indicated their belief the investigation by the WCB was not complete and did not include older buildings that had more potential for asbestos exposure for the worker. On October 27, 2023, the employer provided a submission in support of the WCB’s decision, with the worker’s representative providing a response on November 14, 2023.

Review Office upheld the WCB’s decision and determined on November 20, 2023, the worker’s claim was not acceptable. Review Office found the evidence does not support the worker was exposed to “airborne asbestos dust” while working for the employer. Review Office further found the worker had provided the WCB with their work locations but investigations did not support the worker’s exposure to asbestos dust. Further, Review Office noted the evidence did not support any of the locations noted were found to be locations of concern for asbestos and none of the worker’s co-workers had filed claims for asbestos related diseases. As such, Review Office determined the worker’s difficulties were not related to their employment.

The worker’s representative filed an appeal with the Appeal Commission on December 4, 2023 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 May 2, 2024, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the "Act"), regulations under the Act and policies established by the WCB's Board of Directors.

What constitutes an accident is defined in subsection 1(1) of the Act, as follows:

"accident", subject to subsection (1.1), includes

(a) a chance event occasioned by a physical or natural cause,

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

(c) an event or condition, or a combination of events or conditions, related to the worker's work or workplace,

that results in personal injury to a worker, including an occupational disease, post-traumatic stress disorder or an acute reaction to a traumatic event.

The Act provides that the board shall pay compensation to a worker that has been injured by an accident arising out of and in the course of employment.

The Act sets out at Section 4(4) that, where an injury consists of an occupational disease that is due in part to the employment of the worker and in part to a cause or causes other than 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.”

The Act also sets out situations where there is a presumption that worker’s employment is the dominant cause of the worker’s disease (unless the contrary in proven).

A Regulation to the Act, Regulation 69/2023, Occupational Diseases Regulation (the “Regulation”) sets out, in a schedule to the Regulation, occupational diseases and industries, trades or process. If a worker (a) has an occupational disease listed in column 1 of the schedule to the Regulation; and (b) was employed as described opposite in column 2 of the schedule in relation to that disease; then the worker's employment must be presumed to be the dominant cause of the worker's disease, unless the contrary is proven.

The schedule to the Regulation lists “Mesothelioma, whether pleural or peritoneal” as an occupational disease in column 1 of the schedule. For there to be a presumption that the worker’s employment is the dominant cause of the worker’s disease, there needs to be occupational exposure to airborne asbestos dust.

Policy 44.20, Adjudication of Occupational Disease Claims, outlines how the WCB adjudicates occupational disease claims (the “Policy”). The Policy identifies the two different adjudicative approaches that are used to determine whether a worker's occupational disease was caused by work; describes how the rebuttable presumption for occupational disease works; outlines the types of evidence the WCB will gather to assess and determine causation in the circumstances where the presumption does not apply; and determines the timing of impairment ratings for occupational diseases claims.

The Policy outlines two different adjudicative approaches used by the WCB in the case of occupational disease claims such as this. However, occupational disease claims must meet the Act’s basic criteria to be compensable. The criteria are as follows:

• there was an accident; 

• the worker suffered an injury; and 

• the injury was caused by the accident.

For the purposes of the Policy, it is assumed that these three criteria are met. The only thing left for the WCB to determine is whether the worker's occupational disease arose out of and in the course of their employment.

Worker’s Position

The worker appeared at the hearing and was represented and supported by their spouse. The worker’s spouse relied on their prior written submissions and made a presentation to the panel. The worker and their spouse responded to questions from members of the panel.

The position of the worker is that there were three locations where they worked that were not investigated. The worker could not recall the exact addresses and the worker states that it is the employer’s responsibility to do more investigation into the three locations and review their records. The worker, during the course of the questioning by the panel members, remembered the street name of one of the three locations.

The worker’s spouse stated that the timeline of when the worker worked at those three locations fits when looking at the typical length of time between exposure and diagnosis in Mesothelioma cases.

The worker submits that the decision makers must continue to seek evidence until they are satisfied there is sufficient evidence upon which to make a decision and states that the WCB failed in that effort.

Employer’s Position

The employer was represented by its agent, who made a presentation at the hearing and responded to questions from members of the panel.

The employer’s position is that there is no evidence of exposure to asbestos. The employer relies on the fact that they had no records of any abatement reports for the buildings at the locations where the worker was employed.

The employer asks that the decision of the Review Office be upheld.

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 suffered an injury as a result of an accident arising out of and in the course of their employment. For the reasons that follow, the panel is unable to make that finding.

Based on the evidence before it, the panel is unable to establish that the worker suffered an accident or sustained an injury arising out of or in the course of their employment with the employer.

The employer confirmed that their records showed that the worker worked at three separate locations. The evidence of the employer was that they had no records of any abatement reports for the buildings at these three locations. The employer’s evidence was that they did not have any other locations or addresses on the worker’s file.

During the hearing, when the issue of the lack of supporting information was raised with the worker, the spouse stated that the employer should have records and that its not the worker’s responsibility to maintain records and therefore it was up to WCB and/or the Appeal Commission to investigate and obtain the necessary information to establish the worker’s claim.

The panel did consider the worker’s argument that the employer did not investigate all of the workplaces of the worker and sought out further evidence from the employer relating to the other locations where the worker was employed, despite having relatively sparse information relating to those workplace locations. The employer provided further information in response to the request by the panel, however, there remains a lack of evidence to prove asbestos was present in the workplaces where the worker was employed. While the panel accepts that there may be occasions when it may use its legislative authority to access information, it is unreasonable to do so when there is little or no evidence that such information exists, which the panel finds to be the case in this instance.

As a result of the lack of evidence of exposure to asbestos in the workplace, the panel is unable to find that the worker suffered an accident arising out of and in the course of employment.

There must be evidence to confirm, on a balance of probabilities, the presence of asbestos in the worker’s workplace(s) for the accident to arise out of and in the course of employment, and there is a lack of evidence before the panel to that effect. The panel therefore concludes that there was not exposure to asbestos in the workplace.

The worker does have a confirmed diagnosis of mesothelioma. For the occupation disease presumption to apply, the Regulation states there needs to be occupational exposure to airborne asbestos dust. Based on the evidence available to the panel, there is no indication that there was exposure to airborne asbestos dust in the workplaces where the worker was employed. The panel is unable to make this causal connection based on the available evidence and therefore the occupational disease presumption does not apply.

The Policy provides that if the occupational disease presumption does not apply, then the next required step is to adjudicate on a case-by-case basis and determine if work related factors were the dominant cause of the worker’s disease. As set out above, there is a lack of evidence before the panel to find a causal connection to the worker’s workplace and therefore, the panel cannot find that work related factors were the dominant cause of the worker’s disease.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker did not suffer an injury as a result of an accident arising out of and in the course of their employment. The worker's claim is therefore not acceptable.

The worker's appeal is dismissed.

Panel Members

R. Lemieux Howard, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

R. Lemieux Howard - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 18th day of June, 2024