Highlights of Noteworthy Decisions

Decision 862 18
R. McCutcheon - D. Thomson - S. Roth
  • Asbestosis
  • Presumptions (occupational disease)
  • Board Directives and Guidelines (asbestosis)

The worker was a chemical operator at a power plant from 1976 to 1993. He was diagnosed with asbestosis in 2009. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the asbestosis.

Section 15(4) of the WSIA creates an irrebuttable presumption is a worker was employed in a process set out in Schedule 4 and contracts the disease specified in the Schedule. Asbestosis is a disease listed in Schedule 4 and the process is any mining, milling, manufacturing, assembling, construction, repair, alteration, maintenance of demolition process involving the generation of airborne asbestos fibres.
Board Operational Policy Manual, Document No. 16-20-05, on asbestosis, adds a stipulation for at least two years of asbestos exposure.
It was unclear to the Panel whether the policy requirement of at least two years of exposure was consistent with the irrebuttable presumption for any asbestos exposure in the listed processes. However, it was not necessary for the Panel to address this potential discrepancy in this case, as the worker met the requirements of the policy.
The worker was involved in the commissioning of a heavy water plant from 1977 to 1979. The Panel was satisfied that commissioning was appropriately characterized as construction activity within the meaning of Schedule 4. The worker was also involved in decommissioning a heavy water plant for about eight months after 1979. The Panel was satisfied the decommissioning was appropriately characterized as demolition activity within Schedule 4. Thus, the worker was involved in processes involving asbestos exposure for almost three years.
Prior to coming to Canada, the worker worked in the United Kingdom. The Panel accepted the worker's testimony that he was not exposed to asbestos in the U.K. However, even if he was exposed in the U.K., he still met the two-year exposure in Ontario requirement set out in the Board policy.
The worker had entitlement for asbestosis. The appeal was allowed.