Canadian Safety Reporter

2 Canadian HR Reporter, a Thomson Reuters business 2017 CSR | February 2017 | News side the winding motor case and the worker used asbestos cloths to put around the ends of wires in larger motors. He then worked as a butcher in meat shops from 1982 to 1984 before joining an automobile manufacturer as a tool setter in the company's brake assembly shop. He worked in the brake assembly shop until 1999. The worker's job in the au- tomobile plant was on the axel and output shaft machining line, which was about 15 feet from the brake bounding assembly line — where asbestos brake linings were ground, drilled and riveted leading to airborne asbestos. For a 10-month period in 1984 he worked on the brake line. Development of respiratory condition In 1995, the worker experienced coughing and he was diagnosed with pulmonary fibrosis. After his retirement in 2000 his condi- tion worsened. In February 2010 he was diagnosed with non- small cell carcinoma in his right lung. The worker made a claim for workers' compensation benefits, claiming his lung cancer was caused by long-term indirect ex- posure to asbestos in the work- place. He noted that he smoked about one pack of cigarettes a day for 20 years, but quit smok- ing in 1990. The Ontario Workplace Safe- ty and Insurance Board (WSIB) found that exposure levels in the auto shop where the worker was employed from 1985 to 1999 were measured by an occupa- tional hygienist in April 1991 to be negligible and well below regulated exposure limits. The occupational hygienist couldn't determine the cumulative expo- sure before 1991, which was the final year asbestos brake pads were used. Given the lack of data before 1991, the WSIB deter- mined the worker's claim didn't meet the requirements for as- bestos exposure compensation — a history of at least 10 years of occupational exposure and at least 10 years between first expo- sure and the appearance of lung cancer. The claim was denied. The worker died in November 2010 at 69 years of age. His estate appealed the denial of his claim. The WSIB appeals resolution office upheld the claim denial, pointing to the findings of the oc- cupational hygienist. In addition, a hospital report on the worker's treatment stated that the worker had told doctors he had smoked one to two packs a day since the age of 16 and quit in 1992 — at age 50 — meaning he had a much more significant smoking history than he had let on in his claim. The estate appealed once again. The appeals tribunal noted that "questions still remain open as to what the exposure levels could have been prior to 1991" and there was no way of know- ing the extent of the possibility of excessive exposure. This was significant, since the worker was employed in the auto shop for seven years before the 1991 measurements. According to the worker, no respirators were worn and he was only 15 feet away from the brake assembly area, where asbestos was ex- posed, for 15 years. In addition, though the ministry of labour recorded low measurements for other electric motor shops in the 1980s, there was the possibility of some exposure in the worker's job from 1976 to 1982. Despite the worker's signifi- cant smoking history, the tri- bunal found that "the medical literature consistently implicates asbestos as an important cause of lung cancer." It also noted the worker had pulmonary fibrosis, another condition caused by oc- cupational exposure to asbestos. The tribunal found the work- er's exposure history to asbestos included six years in the electri- cal motor shop — where at least some level of exposure couldn't be ruled out due to the presence of asbestos in that workplace — and seven years in the brake assembly plant before asbestos was phased out in 1991 — where the lack of data before 1991 couldn't rule out the possibil- ity of excessive exposure. This totaled 13 years of possible ex- posure — especially during the worker's 10-month assignment on the brake assembly line — that surpassed the 10-year ex- posure requirement for workers' compensation benefits. In addition, the worker began exhibiting symptoms in 1995 and was diagnosed with lung cancer in 2010, well past the 10- year time period required from first exposure. The worker was first indirectly exposed to as- bestos in 1976 and then again in 1984. The tribunal noted that the worker's years of smoking likely contributed to his lung cancer and combined with the asbestos exposure likely multiplied the risk of developing it. However, the worker's smoking wasn't necessarily the only cause of his cancer, and it didn't eliminate the likelihood that the occupational exposure to asbestos contrib- uted to the worker's lung cancer, making him eligible for benefits. The tribunal also noted that it sought the opinion of the WSIB's independent medical assessor, who agreed the worker's occu- pational exposure to asbestos increased the risk of developing lung cancer. "I accept the reporting of the tribunal-appointed medical as- sessor …who concluded that the worker's smoking and the worker's asbestos exposures were both likely causal factors in the development of the lung can- cer; and who concluded that the smoking and the asbestos expo- sures likely had a multiplicative effect as causal factors," said the tribunal. The tribunal overturned the earlier decisions of the WSIB and the appeals resolution of- fice, awarding the worker's es- tate entitlement to benefits for the worker's lung cancer. For more information see: • Decision No. 1328/14, 2016 CarswellOnt 18399 (Ont. Workplace Safety & Insurance Appeals Trib.). Former < pg. 1 Asbestos exposure and smoking both causes Credit: Shutterstock/Minerva Studio

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