NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL

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1 NOVA SCOTIA WORKERS COMPENSATION APPEALS TRIBUNAL Appellant: [X] (Deceased Worker) Participant entitled to respond to this appeal: The Workers Compensation Board of Nova Scotia (Board) APPEAL DECISION Representative: Form of Appeal: WCB Claim No.: [X] Written submission [X] Date of Decision: October 28, 2011 Decision: The appeal of the June 30, 2011 Board Hearing Officer decision is denied, according to the reasons of Appeal Commissioner Brent Levy.

2 2 CLAIM HISTORY AND APPEAL PROCEEDINGS: On September 3, 2010, the Worker filed an occupational disease application with the Board concerning mesothelioma. The Board s September 30, 2010 decision accepted that the Worker had occupational exposure to asbestos which caused the mesothelioma. The Worker was awarded a 100% permanent medical impairment rating as of June 12, The Worker passed away on October 17, The Board accepted that the Worker s death was caused by mesothelioma. The Board s February 28, 2011 decision awarded a death benefit and reimbursed the Worker s estate for funeral expenses. The Board, however, concluded that a survivor pension was not payable because the Worker and his spouse were beyond 65 years of age when he died. The Board s calculation of benefits was upheld pursuant to a Hearing Officer s decision dated June 30, The Worker s estate appealed to the Tribunal and is represented. The appeal proceeded via written submissions, and submissions were received from the estate s representative on August 3, A finding is sought that the Worker s spouse is entitled to a survivor pension payable for life. ISSUE AND OUTCOME: Is a survivor pension payable? No. The Worker s spouse is not entitled to a survivor pension. ANALYSIS: The Workers Compensation Act, S.N.S , c.10, as amended [the Act ] applies to this appeal. Section 60 of the Act pertains to survivor benefits, and the following subsections are relevant to the present appeal: 60(1) Where a worker dies as the result of an injury, the amount of compensation payable is (c) where the worker has a dependent spouse, This decision contains personal information and may be published. For this reason, I have not referred to the participants by name.

3 3 (i) a death benefit, and (ii) a survivor pension; and (3) Subject to subsection (4), a survivor pension payable pursuant to subsection (1) is payable until the worker would have attained the age of sixty five years or until the surviving spouse attains the age of sixty five years, whichever is later. (3A) Notwithstanding subsection (3), a survivor pension payable pursuant to subsection (1) is payable for life where the worker was injured before February 1, 1996; and (b) the worker died as a result of the injury on or after February 1, These sections reflect that a surviving spouse may receive a survivor pension after age 65 if the worker was injured prior to February 1, 1996 and died on or after this date. At issue then is whether the Worker was injured before February 1, The Board accepted that the Worker s mesothelioma was an occupational disease. Section 12(2) of the Act addresses the date of injury for occupational diseases and reads as follows: 12(2) Where a worker suffers from an occupational disease, the date of the worker s injury, for the purpose of this Act, is the earliest of (b) (c) the date on which the occupational disease results in loss of earnings; the date on which the Board determines the worker has a permanent impairment caused by the occupational disease; or the date on which the worker s death is caused by the occupational disease. Subsection 12(2) is not applicable given that the Worker retired in July of 2001 prior to the diagnosis of mesothelioma. The Board awarded the Worker a 100% permanent impairment rating as of June 12, A biopsy on this date confirmed that the Worker had sarcomatoid mesothelioma. Given that the Board accepted that the Worker had a permanent impairment prior to his death, the Worker s date of injury pursuant to section 12(2) is June 12, The Worker s representative noted that Policy requires at least 10 years of occupational exposure to asbestos, followed by a minimum of 15 years prior to the onset of mesothelioma. The Worker s representative also noted the Board s acceptance that the

4 4 Worker s occupational exposure to asbestos began 40 years prior to the development of mesothelioma. Such evidence was cited in support of the position that the Worker s illness was longstanding and began much earlier than found by the Board. Policy , subject to the discretion provided, requires a minimum period of exposure to asbestos and a minimum latency period. While the Board has accepted, and Policy contemplates, that the Worker s exposure to asbestos began many years before the mesothelioma developed, it is not until there is clear evidence of mesothelioma that an occupational disease exists. The application of Section 12(2) of the Act, concerning the date of injury for an occupational disease, leads to a finding that the Worker s date of injury is June 12, This does not satisfy the requirement in section 60(3A) that the Worker must have been injured before February 1, The Worker s representative also relied on section 60(4) of the Act and the contemplated payment of benefits for pecuniary loss, or loss of valuable services, suffered as a result of a worker s death. This section of the Act reads as follows: 60(4) Where no compensation is payable pursuant to subsection (1), the Board may, subject to subsection (5), (b) recognize persons other than a worker s spouse or children as dependants; and pay compensation proportionate to the pecuniary loss or loss of valuable services suffered by any person recognized pursuant to clause as a result of the worker s death. This section pertains to the payment of compensation to people who are not a worker s spouse or children. This section is not applicable because a survivor pension is being sought for the Worker s spouse. CONCLUSION: The appeal of the Worker s estate is denied. The Worker s spouse is not entitled to a survivor pension. DATED AT HALIFAX, NOVA SCOTIA, THIS 28 th DAY OF OCTOBER, 2011.

5 5 Brent Levy Appeal Commissioner

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