SUMMARY DECISION NO. 1592/97. Mesothelioma; Exposure (asbestos).

Transcription

1 SUMMARY DECISION NO. 1592/97 Mesothelioma; Exposure (asbestos). The worker worked as a shipwright in Ontario from 1971 to He died in 1988 from mesothelioma. The worker's widow appealed a decision of the Appeals Officer denying dependency benefits. Asbestos was not used in the workplace since However, the worker may have been exposed prior to 1972, and also after 1972 to asbestos that had not been removed. The worker may also have been exposed to asbestos while working as a shipwright in Scotland prior to It was found in a prior Tribunal decision that mesothelioma may occur after only short exposure to relatively low concentrations of asbestos dust. The Panel was satisfied that the worker's mesothelioma resulted from asbestos exposure. The evidence was approximately equal in weight as to whether the exposure that led to the mesothelioma occurred in Ontario or Scotland. In the circumstances, the Panel concluded that the widow was entitled to dependency benefits. The appeal was allowed. [13 pages] DECIDED BY: Sutherland; Jackson; Howes DATE: 12/11/99 ACT: WCA TRIBUNAL DECISIONS CONSIDERED: 359/87 consd BOARD DIRECTIVES AND GUIDELINES: Claims Services Division Manual, s. 122(1), p. 250, Directive 5

2 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1592/97 [1] This appeal was heard in Toronto on April 9, 1999, by a Tribunal Panel consisting of: S.J. Sutherland: Vice-Chair, G..K. Howes : Member representative of employers, F. Jackson : Member representative of workers. THE APPEAL PROCEEDINGS [2] The worker s widow appealed from the decision of the Appeals Officer, D.H. Brydson, dated April 17, In the Appeals Officer s decision, he allowed the employer s objection to the initial granting of entitlement to benefits to the worker and rescinded benefits that were paid to the worker s widow. This decision resulted in an overpayment to the worker s widow that was in excess of $130,000.00, but the Board only sought to recover three years of payments, which amounted to about $44, [3] The widow is no longer living in Canada and was not present at the hearing. She was represented in the appeals process by M. Morales, of the Office of the Worker Adviser. [4] The employer was present in the person of the supervisor of its occupational health services department and was represented by S.A. Bernofsky, a lawyer. [5] This appeal was originally scheduled to be heard on December 19, The events that unfolded on that date caused the Panel to characterize that meeting as a pre-hearing conference. [6] At the December 19, 1997, conference, Ms. Morales advised the Panel that she had been trying to contact the worker s widow since June She had received a letter from the widow on December 15, 1997, and she asked to admit this letter into evidence at the hearing. She did not know why the widow had not answered before that date. Mr. Bernofsky did not object to the Panel receiving this letter into evidence. [7] A discussion followed the Panel s receipt of the widow s letter, as a result of which the Panel decided to seek clarification from the widow with respect to her deceased husband s employment history. It was agreed that the Panel chair would write a letter to the widow. The letter was distributed to Mr. Bernofsky, Ms. Morales, Ms. Jackson, and Mr. Howes, who reviewed and commented on it. After everyone had commented, the Panel Chair edited the letter and it was sent to the widow on July 20, [8] The worker s widow answered the letter on August 23, Her response was received at the Tribunal on September 15, [9] The hearing of the widow s appeal took place on April 9, 1999.

3 Page: 2 Decision No. 1592/97 THE EVIDENCE [10] At the pre-hearing conference that was held on December 19, 1997, the Panel had before it the Case Record and one Addendum. At the hearing on April 9, 1999, we had these materials, the widow s December 15, 1997, letter, and three Addenda. These were marked as Exhibits #1 to #6, respectively. [11] Ms. Morales and Mr. Bernofsky made oral submissions on April 9, THE ISSUES [12] The worker s widow claims that her husband s final illness and death resulted from his exposure to asbestos when he worked for the employer. She is seeking the reinstatement of her survivor s benefits. THE PANEL S REASONS (i) Background [13] The worker was born in Scotland, in June He applied from Scotland for a job with the employer. He was 47 years old at the time. His application listed only two brief prior jobs: first, as a shipfitter in Massachusetts; and second, in construction in Glasgow. His application said that he spent one-year at each of these jobs. [14] The employer hired the worker as a shipwright. He began work in September The employer s records indicate that he worked as a shipwright, pipefitter, and rigger. [15] The worker had a compensable injury on March 19, He was climbing a ladder on a ship and he suffered a contusion to his right hip and thigh. His recovery from this injury was prolonged and, in fact, he never returned to work. [16] The materials indicate that the worker had no respiratory problems until he developed shortness of breath in late He thought he had a cold and sought treatment from his family physician. [17] On August 30, 1988, Dr. S.E. Lundy, a specialist in internal and respiratory medicine, advised the Board that: [The worker had consulted him] earlier this year with a seeming right pleural effusion, together with dyspnea and right chest pain. However, subsequent investigations showed this to be extensive pleural thickening rather than effusion. He went on to have a CAT scan done which showed a thick rind of pleural thickening encasing his right lung. He went on to have a trans-thoracic skinny needle biopsy of this thickened pleura, which showed definite malignancy, although this could not differentiate clearly between mesothelioma and a poorly differentiated squamous cell carcinoma. However, the presentation and CAT scan appearance was far more likely consistent with mesothelioma. Likewise, this gentleman had exposure to asbestos when he was working in and around engines and boilers in ships for many years, when he worked as a shipwright at [the employer]. I believe that he and his family are eligible for compensation with his mesothelioma. I am writing not only to explain the details of the case but also to request that the Workmen s [sic] Compensation Board pay for the costs of the autopsy when this

4 Page: 3 Decision No. 1592/97 man passes away. He is actually in a fairly terminal stage at the present time and this may be imminent... [18] The worker died in September 1988, when he was 64 years old. The autopsy showed that he had malignant mesothelioma in his right lung. [19] The Board used Dr. Lundy s letter to establish a claim for mesothelioma. The Claims Adjudicator ordered an investigation. When the investigator visited the worker s home on November 22, 1988, it was vacant and was for sale. On March 21, 1989, the Claims Investigator reported that the worker s widow had returned to Scotland. He had arranged for her to contact him if she returned to Canada. [20] On May 30, 1989, the Acting Supervisor of the Area Office reported that he had spoken with the widow and arranged for the Claims Investigator to meet her. [21] The worker s widow was interviewed by the Claims Investigator on June 5, She advised the investigator that her husband had always been employed as a shipwright and had worked at various shipyards in Scotland as well as the brief contract in Massachusetts. He had never smoked cigarettes. When he worked for the employer from 1971 until 1987, he was mostly doing fitting of steel in boiler rooms. [22] The materials contained a message sent to the employer by the supplier of the insulating materials used in the workplace, on June 7, This message said: The principal materials used were calcium silicate and fiberglass pipe covering and insulating cement. To the best of my knowledge, asbestos has not been included in the manufacture of these products since [23] The Claims Investigator interviewed one of the worker s co-workers on June 20, The co-worker stated that the worker refused to work on any jobs on which insulation was involved. The co-worker recalled that the worker told him that being close to insulation made him ill. The co-worker went on to say that occasionally shipwrights were assigned to assist carpenters remove insulation from pipes and the worker occasionally did this. In addition, the worker sometimes worked in areas where asbestos was being removed from older ships, by other workers. [24] On August 25, 1989, the employer s safety co-ordinator described the worker s job as a shipwright, as follows: A shipwright s job is to assemble and fabricate the steel to build a new ship or repair a damaged ship. The sections are built in the shop, winched outside, then put in place by the Gantry Cranes. [The worker s] foreman and superintendent advise me that [the worker] spent at least 70% of his time in the shop during his employment, where there has at no time been any asbestos for any purpose. They also advised that the remaining 30%, when [the worker] worked on any ship, his duties were in the cargo hold, side tanks, and double bottom areas of the ships. There is no asbestos used in any of these areas.... Since 1972 some older ships, in for repairs, would have had some asbestos on piping and mechanical systems in the Engine Rooms, but [the worker] did not work in that area, if he was on some of those ships at all.

5 Page: 4 Decision No. 1592/97 [25] The Claims Adjudicator asked for a medical opinion with respect to the relationship, if any, between the worker s mesothelioma and his exposure to asbestos in Ontario, which the Claims Adjudicator characterized as not significant. Dr. C. Stewart, the Board s Medical Consultant (Chest Disease) answered on September 15, Dr. Stewart said: I would be inclined not to believe the [employer s] representative in dismissing the possibility of asbestos exposure over a 16 year period in such a shipyard, particularly when it came to the question of removing old insulation. I am wondering if we could ask the employer to comment on these exposures revealed by the co-worker without necessarily compromising the co-worker. Shipyards are well-known for proximity exposure asbestos induced disease in workers not directly working with asbestos. Clearly there remains uncertainty here and I am wondering if the employer would like to comment on it. [26] The Claims Adjudicator relayed these comments and the information that a co-worker had advised the Board that the worker was exposed to asbestos, to the employer on November 9, The employer s safety co-ordinator answered her letter on December 8, The safety co-ordinator stated that the employer had conducted an internal investigation. It was his information that the worker neither helped carpenters remove old insulation nor worked in fairly restricted areas where asbestos was being removed from pipes by others. The co-ordinator reiterated the information that the worker spent at least 70% of his time working in the shop where, at no time, was asbestos used. The co-ordinator advised the Claims Adjudicator that the company that supplied the insulating material used on ships had been contacted and the principal materials used were calcium silicate and fiberglass pipe covering and insulating cements. The information supplied by [the other company] provides that asbestos has not been included in the manufacturing of these products since The co-ordinator opined that there was no evidence that the worker s mesothelioma resulted from asbestos exposure with the employer. He noted that asbestos was used in shipyards in Scotland and suggested that any exposure might have occurred there. [27] The Claims Adjudicator requested a further medical opinion. On January 17, 1990, Dr. C.C. Gray, the Board s Chest Disease Consultant, wrote: There is no doubt about the diagnosis of mesothelioma of the pleura. For mesothelioma to develop there is no dose response necessary that is, a small dose of asbestos can result in mesothelioma. The time interval latency period from date of first exposure in Ontario, 1971, to diagnosis is 17 years whereas the guidelines suggest 20 years or more. One cannot or should not reject a claim for a matter of a few years. It is possible that there was exposure in Scotland and that it played a role in the development of the mesothelioma but one cannot dogmatically state that the Ontario exposure did not play a role. Even though no asbestos was used for pipe covering and insulating since 1972 the worker started on the job in 1971 and removing old insulation containing asbestos fibers probably went on for a good many years after It is recommended that the claim be accepted with benefits to the widow. [28] The Claims Adjudicator advised the widow that the claim had been accepted, on January 29, The Claims Adjudicator informed the employer that the claim had been allowed, on June 21, The employer appealed the allowance of the claim, on July 19, 1990.

6 Page: 5 Decision No. 1592/97 The Decision Review Specialist, in a decision dated August 29, 1990, upheld the Claims Adjudicator s decision allowing the worker s widow survivor s benefits. [29] The employer again appealed the allowance of benefits, in a letter from Mr. Bernofsky dated January 14, On October 29, 1993, Mr. Bernofsky asked the Board to expedite the employer s appeal. The hearing took place on May 18, 1995, and the employer s appeal was allowed. On June 11, 1996, the worker s widow was asked to reimburse the Board $44, [30] Before allowing the employer s appeal, the Appeals Officer requested a review of the evidence by the Board s Occupational Hygienist, Dr. H. Kabir, and the Board s Chest Disease Consultant, Dr. J. O. Roos. [31] Dr. Kabir s report was dated December 6, Dr. Kabir estimated that the worker had been employed in shipyards in Scotland for approximately 28 years, following which he worked a year in Massachusetts and 16 years for the employer. Dr. Kabir reviewed the employer s evidence that it had not used asbestos since 1972 and the co-worker s evidence that there was some asbestos in the workplace. Dr. Kabir referred to the Royal Commission on Asbestos and its findings related to Canadian shipyards and to other studies of asbestos exposure and mesothelioma among shipyard workers. With respect to the worker s likely exposure to asbestos, Dr. Kabir said: It would, therefore appear that the claimant was very likely exposed to asbestos, most likely of the chrysotile form, while working in the Scotland Shipyard at a very young age and, the exposure for 20 to 30 years before coming to Canada could be quite significant. Please note also that he worked for a year between 1970 and 1971 in a Boston Shipyard. In comparison, the available reports indicate that the claimant s potential exposure to asbestos while in Ontario was in all likelihood insignificant taking into consideration that he was not directly involved in processes such as spray insulation, asbestos cement application and asbestos insulation of boilers and pipes, in the engine room and, further that the AE has documented evidence confirming the fact that asbestos was not allowed to be brought into the shipyard after The claimant rarely worked on old ships that would have had asbestos in the engine rooms and, furthermore the claimant did not work in the engine room. [32] Dr. Kabir said the following with respect to his literature review regarding exposures to asbestos in shipyards in Europe: The literature references cited below 1 pertaining to the Scotland shipyard and other shipyards throughout Europe clearly indicate that in the 1940s, 50s and 60s, asbestos use on ships in the shipyards was very extensive causing widespread exposure of workers in practically all trades in shipbuilding. The papers also clearly demonstrate the long latencies associated with the mortality of mesothelioma among the shipyard workers that became very apparent in the 1980s and 90s, that is, nearly 30 to 40 years after the first exposure of these shipyard workers. Based on what we know today and as referenced below in the most outstanding papers on the subject, it clearly indicates that the claimant's work involvement in the Scotland Shipyards could have played an overwhelming role not only in terms of the level and frequency of asbestos exposure, but 1 Dr. Kabir listed five references including an epidemiological study of mesothelioma and asbestos exposure in Scotland.

7 Page: 6 Decision No. 1592/97 also in the light of the long latencies reported in the literature in the development of mesothelioma from asbestos exposures. [33] Dr. Roos submitted his comments to the Appeals Officer on December 20, He pointed out that malignant mesothelioma has a long latency period and went on to say: I find Dr. Kabir s review of the work history and detailed analysis very helpful. First, the latency period between diagnosis of the mesothelioma and initial exposure in Scotland would be compatible with development of the mesothelioma. The documentation of no new asbestos exposure in the Ontario shipyard since 1972 after only about one year of work at the most, was of interest but as Dr. Kabir points out some asbestos exposure is likely to have occurred because of repairs done by associated workers. However, such exposure would have been relatively small. The Boston shipyard work of approximately one-year would also seem at least short but in no little detail about it [sic]. I believe that on the balance of the history, published reports on European usage of asbestos in the indicated years, and on the short exposure to potential high asbestos usage in North America and the likely minimal exposure to asbestos as a bystander would weigh strongly in favour of significant asbestos exposure having occurred predominantly in Scotland. Dr. Roos concluded: On the balance of the evidence that is available now, however, and noting particularly Dr. Kabir s input, is my opinion that this worker s mesothelioma was most probably caused by shipyard work in asbestos exposure in Scotland. I also conclude from the evidence on file that the death was caused entirely by malignant mesothelioma and not any other form of malignancy. [34] In the undated letter to Ms. Morales, that was received at the Office of the Worker Adviser on December 15, 1997, the worker s widow stated that her husband worked for seven different house building companies before immigrating to Canada and she provided a list naming the companies. [35] In response to the letter from the Tribunal, the worker s widow stated in her letter of August 23, 1998, that the worker did a three year apprenticeship in a Scotland shipyard. He then left the shipbuilding industry and began working as a joiner in the house building industry. He never worked with asbestos in this job. He had a brief contract as a shipwright in a shipyard in Massachusetts. His only long-term employment was with the employer in Canada. (ii) The law and Board policy [36] Between the time that the Panel began to consider this appeal and the release of this decision, the Workplace Safety and Insurance Act, 1997 (WSI Act) took effect. Subsections 112(1) and (3) of the WSI Act repeal certain provisions in the Workers Compensation Act as it read on December 31,1997 (the pre-1997 Act ) and substitute provisions from the WSI Act. The amended provisions apply, with necessary modifications, to pre-1998 injuries and to decisions of the Board rendered before January 1, [37] Subsection 112(4) provides in part: (4) Despite subsections (1) to (3) if, (a) a panel of the Appeals Tribunal has commenced a hearing or consideration of an application or appeal...

8 Page: 7 Decision No. 1592/97... and a final decision has not been made before this section comes into force, the panel... may carry out and perform any duties and exercise any powers in connection with the application, [or] appeal... as though this section has not come into force. [38] The Panel began the consideration of this appeal with the telecoonference on December 19, Therefore, the effect of subsection 112(4) is to preserve the Panel s authority to render a decision based on the Act as it read at the time of the hearing. [39] Section 145 of the pre-1997 Workers Compensation Act states that the pre-1989 Act continues to apply to pre-1989 injuries, such as the one in this appeal. Section 3(1) of the pre-1989 Workers Compensation Act provides that where personal injury by accident arising out of and in the course of employment is caused to a worker, the worker is entitled to benefits in the manner and to the extent provided by the Act. Tribunal cases generally have interpreted the test for causation to be whether the work accident was a significant contributing factor to the disability. [40] Other sections of the pre-1989 Act that are relevant in this appeal are: 3(4) In determining any claim under this Act, the decision shall be made in accordance with the real merits and justice of the case and where it is not practicable to determine an issue because the evidence for or against the issue is approximately equal in weight, the issue shall be resolved in favour of the claimant. 122(1) Where a worker suffers from an industrial disease and is thereby disabled or his death is caused by an industrial disease and the disease is due to the nature of any employment in which he was engaged, whether under one or more employments, the worker is or his dependants are entitled to compensation as if the disease was a personal injury by accident and the disablement was the happening of the accident, subject to the modifications hereinafter mentioned or contained in the regulations, unless at the time of entering into the employment he has wilfully and falsely represented himself in writing as not having previously suffered from the disease. (2) Where the compensation is payable by an employer individually, it is payable by the employer who last employed the worker in the employment to the nature of which the disease was due. (3) The worker or his dependants, if so required, shall furnish the employer mentioned in subsection (2) with such information as to the names and addresses of all the other employers by whom he was employed in the employment to the nature of which the disease was due as such worker or his dependants may possess, and, if such information is not furnished or is not sufficient to enable that employer to take the proceedings mentioned in subsection (4), that employer upon proving that the disease was not contracted while the worker was in his employment is not liable to pay compensation. (4) If that employer alleges that the disease was in fact contracted while the worker was in the employment of some other employer, he may bring such employer before the Board and, if the allegation is proved, that other employer is the employer by whom the compensation shall be paid. (5) If the disease is of such a nature as to be contracted by a gradual process, any other employers who employed the worker in the employment to the nature of which the disease was due are liable to make to the employer by whom the compensation is payable such contributions as the Board may determine to be just. (6) The amount of the compensation shall be fixed with reference to the average earnings of the worker as calculated under the provisions of section 43, but for the purposes of this

9 Page: 8 Decision No. 1592/97 section, where a worker is no longer engaged in the trade, occupation, profession or calling to which the disease is due, the Board may determine his average earnings at an amount that it considers fair and equitable having regard to the average earnings of a fully qualified person engaged in the same trade, occupation, profession or calling to which the disease is due during the twelve months prior to the commencement of disability, but not in any case exceeding the maximum amount of average earnings upon which a loss of earnings may be calculated under section 41. (7) The notice provided for by section 20 shall be given to the employer who last employed the worker in the employment to the nature of which the disease was due and the notice may be given notwithstanding that the worker has voluntarily left the employment. (8) Where the compensation is payable out of the accident fund, the Board shall make such investigation as it considers necessary to ascertain the class or classes against which the compensation should be charged and shall charge or apportion the compensation accordingly. (9) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 3 and the disease contracted is the disease in the first column of the Schedule set out opposite to the description of the process, the disease shall be deemed to have been due to the nature of that employment unless the contrary is proved. (9a) If the worker at or before the date of the disablement was employed in any process mentioned in the second column of Schedule 4 and the disease contracted is the disease in the first column of the Schedule set out opposite to the description of the process, the disease shall be conclusively deemed to have been due to the nature of the employment. (10) The Board may pay the remuneration and expenses of such medical officers as may be required to carry out the provisions of the regulations under the Occupational Health and Safety Act for the examination of workers or applicants for employment in a mine or mining plant, out of the rates imposed under this Act for payment of silicosis claims. (11) Nothing in this Act entitles a worker or his dependants to compensation, health care or payment of burial expenses for disability or death from silicosis unless the worker has been actually exposed to silica dust in his employment in Ontario for periods amounting in all to at least two years preceding his disablement. (12) Notwithstanding any other provision of this Act, the Board may enter into an agreement with the appropriate authority in any jurisdiction in Canada to provide for the apportionment of the costs of the claims for industrial diseases for workers who have had exposure employment in more than one Canadian jurisdiction. (13) Notwithstanding any other provision of this Act, the Board may enter into an agreement with the appropriate authority in any other province or territory of Canada to provide for the sharing of costs of industrial noise induced hearing loss claims in proportion to the actual or estimated amount of exposure in Ontario to industrial noise which contributed to the hearing loss. (14) Nothing in this section affects the right of a worker to compensation in respect of a disease to which this section does not apply if the disease is the result of an injury in respect of which he is entitled to compensation under this Part. (15) The provisions of this section relating to silicosis apply with necessary modifications to pneumoconiosis and stone worker's or grinder's phthisis. (16) The Board, subject to the approval of the Lieutenant Governor in Council, may declare any disease to be an industrial disease and may amend Schedule 3 or 4 accordingly.

10 Page: 9 Decision No. 1592/97 [41] Mesothelioma is not listed as an industrial disease in the schedules to the Act pursuant to section 122. However, the WCB dealt with the disease by way of a Directive dated April 13, 1976, which says: (v) That mesothelioma in asbestos workers be accepted as an industrial disease under section 122 and l(l)(n) of the Act as peculiar to and characteristic of a process, trade or occupation involving exposure to asbestos. That based on medical studies, mesothelioma claims be favourably considered when the following circumstances apply: (a) (b) (c) There is a clear and adequate history of at least ten years occupational exposure to asbestos and There is a minimum interval of 15 years between first exposure to asbestos and the appearance of mesothelioma. Claims which do not meet the guidelines in (a) and (b) should be individually judged on their own merit having regard to the intensity of exposure and other factors peculiar to the individual case. Consideration will be given where it seems evident that the mesothelioma cancer resulted from occupational exposure to asbestos. The benefit of doubt applies. Conclusions [42] This is an extremely difficult case to adjudicate, in part because the representatives called no witnesses with knowledge of the conditions in the workplace and the ingredients used in products in the workplace. Specifically: The supplier of insulating materials to the employer was originally a supplier of asbestos and asbestos products. This supplier, in its note of June 7, 1989, did not say that no asbestos was used in the workplace after It said: The principal materials used were calcium silicate and fiberglass pipe covering and insulating cement. To the best of my knowledge, asbestos has not been included in the manufacture of these products since [emphasis added] The use of the qualifier principal materials suggests to the Panel members that in fact, other materials, including asbestos, might have been used after In addition, the supplier did not do a search of its records to determine when it stopped supplying the employer with asbestos products. The use of the phrase to the best of my knowledge seems to suggest that the supplier relied on someone else s memory of events. The lack of oral testimony from the supplier left the Panel members uncertain about what weight could be put on the employer s assertion that there was no asbestos used in the workplace after A co-worker advised the Claims Investigator that the worker was sometimes assigned to help carpenters remove insulation from pipes and the worker sometimes worked in areas where other workers were removing asbestos from older ships. The Panel members are of the view that there is no fundamental disagreement between this statement and those of the safety coordinator in his letters dated August 25, 1989, and December 8, These statements indicate that the worker spent 70% of his time working in a steel shop. We note that the safety co-ordinator also stated, in the first letter, that the worker s foreman and superintendent had advised him that the worker never worked in areas where there was asbestos.

11 Page: 10 Decision No. 1592/97 However, all of the information provided by the coworker to the Claims Investigator and by the safety co-ordinator in his letters of August 25, 1989, and December 8, 1989, was hearsay and neither Ms Morales nor Mr. Bernofsky elected to call anyone who had first-hand knowledge of the environmental conditions where the worker was employed, to testify at the hearing. Accordingly, the Panel has taken note of the information but we are unable to accept either statement as a statement of fact or to give more weight to one statement than to the other. [43] The Panel cannot accept the worker s widow s statement that the worker always worked in construction, other than during his apprenticeship, until he had a brief contract in Massachusetts in 1970, following which he went to work for the employer in When the worker s widow was interviewed by the Claims Investigator on May 28, 1989, she told the investigator that her husband had always been employed as a shipwright. The worker was recruited as a shipwright, in Scotland, by the employer. It makes no sense to this Panel that the employer would have recruited a man who was 47 years old and brought him and his family to Canada at its expense, if he had essentially no experience in the trade for which it hired him. We are of the view, therefore, that the worker likely did work for some period of time, in Scotland, as a shipwright. As is noted below, there is independent evidence that he also worked for some period of time as a joiner in the construction industry. [44] These concerns aside, the worker clearly died of mesothelioma. Some authorities assert that mesothelioma can occur after brief exposure to low levels of asbestos [cf Decision No. 359/87 and Dr. Gray s report of January 17, 1990]. Dr. Gray was aware of, and accepted, the employer s assertion that no asbestos had been used in the workplace since He noted that the interval between the worker s first exposure in Ontario (1971) until diagnosis was 17 years, that the worker likely had some exposure in Scotland, and that it was possible that the exposure in Scotland played a role in the development of the mesothelioma. Nonetheless, Dr. Gray went on to say: one cannot dogmatically state that the Ontario exposure did not play a role. [45] The Appeals Officer s decision to allow the employer s appeal was based in large part on Dr. Kabir s report dated December 6, In the absence of any information about the worker s employment history in Scotland, Dr. Kabir estimated that the worker had been employed in Scottish shipyards for about 28 years. He went on to find that the worker had significant exposure to asbestos in Scotland and insignificant exposure in Ontario. The problem with the approach is that there is evidence that the worker was employed for at least some period of time in the construction industry in Scotland. When the worker and his wife were married in 1950, the occupation he gave on the Registry of Marriages was joiner. This is a carpentry trade in the construction industry. The Panel has rejected the information provided by the worker s widow, that he spent his entire career working in the construction industry though we believe that he did spend at least some time working in this industry. [46] In addition, Dr. Kabir was of the view that asbestos was not allowed to be brought into the shipyard after As was set out above, this information was at worst, erroneous, and at least, overstated the case. [47] Dr. Roos report dated December 20, 1995, was also of assistance to the Appeals Officer in arriving at his decision. This Panel finds it less useful than did the Appeals Officer because

12 Page: 11 Decision No. 1592/97 Dr. Roos based his report on that of Dr. Kabir and Dr. Kabir s report was based on erroneous information.. [48] The Panel finds it interesting that both Dr. Roos and Dr. Kabir accepted that there was likely some exposure to asbestos in the workplace through the years, although that exposure would have been relatively small [Dr. Roos, December 20, 1995]. In addition, Dr. Roos, who is a Chest Disease Consultant, as contrasted with Dr. Kabir who is an Occupational Hygienist, couched his opinion in quite tentative terms: on the balance of the evidence that is available... most probably caused. [49] The employer has never disputed that the worker may have been exposed to asbestos in 1971 and until the use of asbestos was discontinued in [50] The Panel members are convinced that the worker s mesothelioma was caused by asbestos exposure in the workplace. We have to say, however, that we simply do not know with certainty whether the exposure to asbestos that led to his mesothelioma happened in Scotland or in the workplace in Ontario. When we turn to the Directive for guidance, we find a requirement for a history of at least ten years occupational exposure to asbestos. We do not think it is likely that the worker had that level of exposure in the workplace in Ontario. However, Dr. Gray said there was no dose response relationship and the head note of Decision No. 359/87 said:... the panel was satisfied that there was no safe level of exposure to asbestos and that the level of exposure to cause mesothelioma was lower than for other forms of asbestos-related disease. Mesothelioma may occur after only short exposure to relatively low concentrations of asbestos dust. [51] The Directive states that there must be a minimum interval of 15 years between first exposure to asbestos and the appearance of mesothelioma. That condition is met in this case. The worker was born in Assuming that he was 16 when he began his apprenticeship, his first exposure to asbestos in the Scottish shipyards would have been in He began working for the employer in 1971 and his mesothelioma was diagnosed in 1988, which was almost 17 years after his first exposure to asbestos in an Ontario workplace and about 47 years after his first exposure in Scotland. [52] Given our conviction that the worker s mesothelioma resulted from workplace exposure to asbestos, and the evidence set out above, the Panel is of the view that the evidence is equal with respect to whether the workplace exposure that led to the worker s mesothelioma happened in Scotland or in Ontario. In the circumstances, the worker s widow is entitled to survivor s benefits. [53] The employer, at the Appeals Officer s level, objected to the granting of initial entitlement in relation to this claim. In the alternative, the employer argued that should the Appeals Officer find that there is some exposure to asbestos with [the employer]; on the rationale that such was minimal or insignificant; that the employer be relieved of a significant apportionment of the cost by means of transfer to the Second Injury and Enhancement Fund. The Appeals Officer said: The Appeals Officer has therefore accepted, as part of his mandate, the collateral issue of cost allocation and/or relief, as part of the issue to be addressed in this decision. Since

13 Page: 12 Decision No. 1592/97 the Appeals Officer accepted this issue, the Panel finds that the question of cost relief for the employer is also properly before us. [54] It is the Panel s understanding that the allowance of this claim would result in no cost consequences to the employer, for several reasons. First, the employer was not in NEER in Even if the employer were in NEER, the cost consequences would have expired three years after the claim was allowed, which would be eight years ago. Further, long latency diseases are excluded from experience rating calculations. Even if the employer was in the Voluntary Experience Rating program for those years prior to entry to NEER, there are no adverse cost consequences that would arise under that plan, as it was discontinued at the end of Similarly, there would be no double assessment cost consequences pursuant to section 91(7) (also known as 103(8)), as that was discontinued approximately seven years ago. [55] In the event that our understanding is incorrect, the Panel will stay seized to determine the issue of SIEF relief for this employer. THE DECISION [56] The appeal is allowed. The worker s widow is entitled to survivor s benefits. DATED: November 12, SIGNED: S.J. Sutherland, G.K. Howes, F. Jackson