Highlights of Noteworthy Decisions
- Board Directives and Guidelines (cancer) (gastrointestinal)
- Board policies (interpretation)
- Cancer (colon)
- Evidence (weight)
- Exposure (asbestos)
- Investigation by Tribunal (whether required)
The worker worked for a steel manufacturer from 1959 until he retired in 1997. During those years, he worked as an ironworker from 1970 to 1997. He was diagnosed with colorectal cancer in 2002, at age 63. He died in 2006. The employer appealed a decision of the Appeals Resolution granting the worker entitlement for the cancer. An OHCOW doctor described the worker's asbestos exposure from 1959 to 1970 as merely possible. The doctor did not qualify the description of exposure in that manner for the period after 1970, but the doctor did suggest that the worker's representative obtain further exposure information if possible. The representative obtained an unsworn statement from a co-worker regarding exposure. The Tribunal's Medical Liaison Office recommended that the Vice-Chair obtain a report from a Tribunal medical assessor. However, the Vice-Chair decided not to obtain such a report. The Vice-Chair found that the appeal turned on the facts and on the application of Board policy to the facts. Where the facts described in the policy are found to exist, it is not necessary to obtain a further medical report addressing causation. The Board has developed a policy that addresses a number of forms of cancer and the relevant exposures in particular for the purposed of avoiding the necessity of addressing the complex science in each individual case. The Board has reviewed the epidemiology and has determined what exposure facts are sufficient in its view to make it likely that work exposure has been a significant contributing factor in the cancer. Claims are favourably considered if workers are diagnosed with the specified cancer and the exposure facts are found to exist. It is not necessary to consider specific medical or epidemiological evidence on causation in such cases. It is also not necessary to consider evidence of alternative etiologies, such as the relevance of the worker's age, smoking history or family history. The Board will have been aware of such possible etiologies when developing the policy. If, however, the facts described in the policy are not established, claims may still be considered on the merits and justice, in which circumstances these other factors may be considered. The worker met the minimum 20-year latency period in Board policy. The employer submitted that the worker's cancer was diagnosed when the worker was at Stage III and that, if it were diagnosed earlier, the worker may not have met the latency period. However, the Vice-Chair noted that the policy does not exclude cancers diagnosed at Stage III. The Vice-Chair was satisfied that there was sufficient evidence to determine that the worker had continuous and repetitive exposure to asbestos over the 27-year period he worked as an ironworker and that this exposure constituted a major component of his job duties. The Vice-Chair was aware that the statement of the co-worker regarding exposure was unsworn and that it has not been the subject of cross-questioning. It also appeared that the co-worker was a claimant in another cancer-related appeal. However, the employer did not raise any issue with the co-worker's statement. The Vice-Chair concluded that the facts of the case met the provisions of the Board policy. The worker was entitled to benefits for the colorectal cancer. The employer's appeal was dismissed.