Highlights of Noteworthy Decisions

Decision 538 18
L. Petrykowski
  • Allocation
  • Mesothelioma
  • Employer
  • Occupational disease (Schedule 1 and 2 employers)

The worker's estate appealed a decision of the Appeals Resolution Officer denying the worker entitlement for mesothelioma resulting from workplace exposure to asbestos in the 1950s and 1960s.

The ARO found that the worker met the policy criteria for mesothelioma but denied entitlement on the basis that, at the time of the most recent exposure in 1975, the worker was self-employed without optional insurance. The ARO noted that, under s. 94(2) of the WSIA regarding Schedule 2 employers, the employer who last employed the worker in the employment in which the disease occurred is the employer for purposes of the insurance plan. The worker's activities fell within Schedule 1. The WSIA is silent on cost allocation for Schedule 1 employers. The ARO stated that the Board adopted the same practice for Schedule 1 employers as directed by the WSIA for Schedule 2 employers.
The ARO denied entitlement for technical reasons. The Vice-Chair found that the worker met the Board policy criteria for mesothelioma and that the technical basis identified by the ARO did not preclude entitlement. The worker developed the mesotheliomas a result of employment activities in the 1950s and 1960s. It was never claimed or suggested that any exposure during self-employment in 1975 contributed to the condition.
Further, s. 94 does not apply to this case, as no Schedule 2 employers are involved. The Vice-Chair noted that the jurisdiction of the Tribunal in this appeal does not encompass adjudicating how the Board will allocate cost of the worker's claim. The Tribunal's jurisdiction in this claim only encompassed whether the worker should have entitlement for the mesothelioma.
The Vice-Chair also referred to s. 22(8), which provides for notice to be given to the employer who most recently employed the worker in the employment to the nature of which the disease is due. Notice was given to the employer in 1969. The self-employment activities in 1975 did not involve employment to the nature of which the disease is due.
The worker had entitlement for mesothelioma caused by workplace asbestos exposure in the 1950s and 1960s. The appeal was allowed.