The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker appealed the Workers Compensation Board ("WCB") decision that their claim is not acceptable. A file review took place on May 14, 2025 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 claim related to their diagnosis of mesothelioma on August 29, 2022, outlining their belief that it was as a result of being exposed to asbestos while working in old buildings. The WCB investigated the claim, obtaining information from the treating healthcare providers, the worker and the employer, and determined, on August 14, 2023, that the claim was not acceptable as it could not establish a relationship between the worker’s asbestos-related diagnosis and their employment.

On September 13, 2023, the worker requested Review Office reconsider the WCB’s decision on claim acceptance. On November 20, 2023, Review Office issued a decision upholding the WCB’s decision that the worker’s claim was not acceptable. The worker appealed the Review Office decision to the Appeal Commission. As outlined in Appeal Commission Decision No. 59/24, the appeal panel determined the worker’s claim was not acceptable.

On July 26, 2024, the worker applied to the Board of Directors of the WCB, pursuant to s 60.9 of The Workers Compensation Act (the “Act”) seeking to have Appeal Commission Decision No. 59/24 set aside. On December 23, 2024, the WCB advised the worker that the Board of Directors set aside Appeal Commission Decision No. 59/24 on the grounds that the Appeal Commission may have misapplied the Act or a WCB policy in arriving at that decision and ordered that the worker’s appeal should be re-listed and heard by a new panel. The WCB further advised the worker on December 30, 2024 that it would proceed under Rule 10 of the Appeal Commission Rules of Procedure to return the claim to Review Office for further consideration.

Review Office undertook further investigation of the claim and on January 16, 2025, provided the worker with the findings of those investigations, including a January 14, 2025 memorandum to file detailing a search of the WCB’s database for claims related to lungs, asbestos and respiratory issues from 1982 to the present for other claims with the same employer. That search revealed only the present claim. A further memorandum of the same date indicated a search of the database of the third party law firm handling asbestos claims for the WCB, in relation to all known asbestos exposure locations within Manitoba, and in particular, for the three other locations where the worker was employed by the employer. That memorandum indicated that the three additional locations were not listed in the database.

The worker and the employer provided submissions in response to Review Office’s investigation, including additional information from the employer. The worker provided a further submission in response to the employer’s information. On March 5, 2025, Review Office determined that the worker’s claim was not acceptable as the evidence did not support a finding that the worker was exposed to asbestos or airborne asbestos dust while at work.

On March 11, 2025, the worker appealed the Review Office decision to the Appeal Commission and a file review took place on May 14, 2025.

Reasons

Applicable Legislation and Policy

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

A worker is entitled to compensation under s 4(1) of the Act when it is established that they sustained personal injury as a result of an accident at work. Accident is defined in s 1(1) of the Act as including 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.

Occupational disease is also defined in s 1(1) of the Act as including a disease prescribed by regulation as an occupational disease. Section 4(4) and (4.1) of the Act outline how the WCB determines causation in relation to an occupational disease, as follows:

Cause of occupational disease 

4(4) 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.

Presumption re prescribed occupational disease 

4(4.1) Despite subsection (4), if a worker 

(a) has an occupational disease listed in column 1 of the schedule of occupational diseases prescribed by regulation; and 

(b) was employed as described opposite in column 2 of the schedule in relation to that disease; 

the worker's employment must be presumed to be the dominant cause of the worker's disease, unless the contrary is proven.

Manitoba Regulation 69/2023, Occupational Diseases includes mesothelioma in column 1 of the schedule of occupational diseases and provides in column 2 that the presumption outlined in s 4(4.1) applies if there is occupational exposure to airborne asbestos dust.

The WCB has established Policy 22.00, Decision Making, which applies to all decisions under the Act including those made by the Appeal Commission. This policy provides that decision makers must “…continue to seek evidence until they are satisfied that there is sufficient evidence upon which to make a decision” and that the standard of proof that applies is the balance of probabilities. In determining questions of causation, the standard in relation to occupational diseases, as set out in s 4(4) of the Act is one of dominant cause, which requires that the work be the dominant or principal cause of the disease and not just a necessary cause.

The WCB has also established Policy 44.20, Adjudication of Occupational Disease Claims (the “Occupational Disease Policy”) which sets out the key principles and approaches to be applied in determining such claims, including how the presumption set out in s 4(4.1) of the Act is applied. This policy sets out that:

If the worker’s disease is listed on the schedule, and the worker meets the employment criteria linked to that disease in the schedule, there is no need to establish a causal link between the worker’s occupational disease and their employment on an individual basis. The causal link is presumed for all workers who have contracted that occupational disease while engaging or after engaging in the employment activities or processes listed in the schedule, unless the contrary is proven in the worker’s specific case.

If the worker’s occupational disease is listed in the schedule but the employment criteria linked to that disease in the schedule have not been met, the occupational disease presumption does not apply. The WCB will then adjudicate the claim on a case-by-case basis…. In other words, the WCB will determine whether work-related factors were the dominant cause of the worker’s occupational disease.

Worker’s Position

The worker’s position, as outlined in the submission provided to the Appeal Commission on March 11, 2025 and in the information provided to the WCB file, is that as a result of their exposure to asbestos while working for the employer, they developed mesothelioma and therefore, the claim should be accepted.

The worker’s position is that the WCB failed to investigate their claim to the extent required by the WCB Decision Making Policy, and that it is not sufficient for the employer to simply state that they do not have any documentation of asbestos abatement having taken place at any of the addresses where the worker worked, during the time when the worker was employed in those locations. Further, the worker submits that the fact there are no other WCB asbestos-exposure claims arising from the same employer or the same employment addresses does not confirm there were no such exposures, noting that other employees may not have made claims or may have died before such a diagnosis. Further, the worker submits that the lack of results from the search of the database of asbestos exposure locations in Manitoba is “insufficient to substantiate that those locations did not present an asbestos exposure risk to those employed there.”

The worker offered testimony in the initial Appeal Commission hearing that in the early years of their employment, they worked in two premises where renovations were undertaken to convert residential space into office space, and that these renovations took place while the worker was working in the building.

In sum, the worker’s position is that because the investigation into their allegations of occupational asbestos exposure while working with the employer was insufficient, it cannot be determined that the worker was not exposed to asbestos in the workplaces where they were employed by the employer. As such, the worker submits there is no evidence to support the WCB’s decision, and the worker’s claim should be accepted.

Employer’s Position

The employer’s position is that the evidence does not support a finding that the worker’s diagnosis of mesothelioma is the result of exposure to airborne 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 position is that the evidence does not support a finding that the worker had a work-related exposure to airborne asbestos while performing their job duties with the employer. The employer relies upon the evidence it provided to the WCB indicating no record of any asbestos abatement efforts having taken place at the nine different office locations where the worker was employed. The employer also noted the evidence obtained by the WCB that the only known WCB claim in relation to asbestos exposure relating to the employer firm is that of the worker, and further that the review of the law firm database of known workplace asbestos exposure locations in Manitoba does not contain any of the addresses where the worker was located while working for the employer. 

In sum, the employer’s position is that the claim should not be accepted as the evidence does not support a finding that the worker had occupational exposure to airborne asbestos while working with the employer between 1972 and 2005.

Analysis

The issue in this 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 was exposed to airborne asbestos dust in the workplace and that this is the dominant cause for the worker’s diagnosis. As outlined in the reasons that follow, the panel was unable to make such findings and therefore the appeal is denied.

The panel considered that the medical evidence on file confirms that the worker has been diagnosed with left epithelioid mesothelioma in 2022. This diagnosis is not in dispute in this appeal, and we accept the diagnosis based on the medical evidence before us.

The worker’s appeal relates primarily to whether or not they were exposed to airborne asbestos arising out of and in the course of their employment with the employer from 1972 to 2005. The evidence indicates that during this period, the worker was employed at several different premises of the employer, including six different addresses (at 9 workplaces) within Manitoba. The panel therefore considered the evidence available as to the presence of asbestos on these premises where the worker undertook their job duties over a period of more than 30 years with a view to determining whether the evidence supports a finding that the dominant cause of the worker’s mesothelioma was a workplace exposure to airborne asbestos.

The panel reviewed and considered the following evidence:

• The employer confirmed the worker was employed from 1972 through to 2005, working in a total of 9 different office spaces. 

• The worker recalled working in two residential buildings converted into office space, in the first years of their employment, which renovations occurred during the time the worker was employed in those spaces. 

• The employer confirmed the worker was employed in those two locations as described, and a third location as well, up to 1976, but stated that it did not own those properties and has no record of any asbestos abatement processes in those properties. 

• The employer confirmed that they have no record of any abatement processes being undertaken in the other locations where the worker was employed. 

• The WCB confirmed that there are no asbestos-related claims in relation to the employer, other than the worker’s claim; and 

• The WCB confirmed that the database of known workplace asbestos exposure locations does not include any of the addresses where the worker was employed.

While in this case, the first criterion for operation of the occupational disease presumption is met, we find that the employment criterion linked to this disease, occupational exposure to airborne asbestos dust, is not established based on the evidence. As such the presumption would not apply in the worker’s case and the panel therefore considered the claim using a case-by-case approach.

In reviewing the evidence, the panel also considered the worker’s argument that the investigation into their claim is insufficient to provide a basis for decision-making and considered if there is likely to be any other available evidence in relation to the worker’s claim. The employer has been thoroughly canvassed, and although it did not initially have information as to the worker's other employment locations, that information was provided during the second Review Office reconsideration process. The WCB has reviewed its own records of prior claims and consulted with the external database of known workplace asbestos-exposure sites. None of these searches have revealed any evidence of potential asbestos exposures in the workplaces where the worker was employed. The only evidence supporting the worker’s claim of asbestos exposure is their recollection that some renovations were undertaken in their workplaces prior to 1976. Given that there is no evidence that any of the worker’s colleagues developed asbestos-related illnesses, nor of any other workplace claims arising out of the locations where the worker was employed, the panel is satisfied that there are no further avenues of investigation that could be explored. The panel acknowledges that the worker may not agree with this finding, but the Decision Making Policy requires only that the decision makers, not the parties, be satisfied that there is sufficient evidence upon which to make a decision.

The panel finds that the evidence before us does not support a finding, on the standard of a balance of probabilities, that the dominant cause of the worker’s asbestos-related disease was

exposure to airborne asbestos in the course of their employment. For this reason, the worker’s claim is not acceptable, and the appeal is denied.

Panel Members

K. Dyck, Presiding Officer
D. Rhoda, Commissioner
M. Payette, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 22nd day of May, 2025