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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1265 14
7/14/2014
B. Kalvin

  • Board Directives and Guidelines (cancer) (gastrointestinal)
  • Cancer (stomach)
  • Exposure (asbestos)

The worker worked as a maintenance mechanic in the rubber industry from 1952 to 1969. He was diagnosed with stomach cancer in 1970 and died at age 65 in 1973. The worker's estate appealed a decision of the Appeals Resolution Officer denying the worker entitlement for the cancer. An occupational hygienist assigned by the Board found reported that the worker was exposed to moderate to high levels of asbestos at work for 17 years. The Vice-Chair was satisfied that the worker met the requirement in Board policy of a clear and adequate history of exposure to asbestos dust. The ARO found that the requirement that the exposure be of a continuous and repetitive nature was not satisfied, relying on the assessment of the occupational hygienist that the worker's exposure was occasional. The Vice-Chair noted that the hygienist defined what he meant by occasional exposure. The hygienist stated that exposure is occasional if the task occurred on a weekly or monthly basis, or if the worker spent 25% to 50% of the work shift potentially exposed. He defined routine exposure as exposure on a daily basis or if the worker spent more than 50% of the work shift potentially exposed. The Vice-Chair regarded exposure defined as occasional by the hygienist as being of a continuous and repetitive nature. This was also consistent with the interpretation in an ODPRB research report which has been found in Decision No. 144/12 as setting out a proper approach to the interpretation of the Board policy. According to the paper, continuous refers to exposure that is ongoing and not just a brief exposure period such as six months. Repetitive describes frequency and is meant to exclude a single exposure event or exposure that was occasional or incidental. The only requirement that was not satisfied was the latency period of 20 years between first exposure and diagnosis. In this case, the latency period was just less than 19 years. As a result the presumption that the cancer was occupationally related did not apply. However, considering the merits and justice, the clear and adequate history of exposure of a continuous and repetitive nature and the hygienist's reports of exposure to moderate to high levels of asbestos, the Vice-Chair concluded that the estate had entitlement to benefits for the worker's stomach cancer. The appeal was allowed.