Highlights of Noteworthy Decisions

Decision 3113 18
E. Smith
  • Apportionment (occupational disease)
  • Apportionment (Schedule 1 and 2 employers)
  • Employer (Schedule 1 and 2 employers)

In Decision No. 911/14, the Tribunal found that the worker had entitlement for chronic obstructive pulmonary disease.

The employer now appealed a decision of the Appeals Resolution Officer finding that it was the accident employer.
Dust exposure at two prior employers was significantly greater that the worker experienced with the accident employer. The Vice-Chair calculated the percentage contributions of dust exposure at 23% with one employer, 64% with another employer and 11% with the appellant employer.
Section 22(8) of the WSIA states that a copy of the claim for an occupational disease must be given to the employer who has most recently employed the worker in the employment to the nature of which the disease is due. There is no requirement for notice to be given to prior employers. The appellant employer is the last exposure employer in this case.
The Vice-Chair also noted that the appellant employer is a Schedule 2 employer. Section 94 applies if a worker is entitled to benefits because of an occupational disease that may have occurred as a result of more than one employment by Schedule 2 employers. It provides for a sharing of costs between multiple Schedule 2 employers. There is no such provision regarding Schedule 1 employers or employer in both Schedules. In this case, the prior employers were Schedule 1 employers. The appellant employer was the only Schedule 2 employer.
Section 94 adds greater certainty to the Board practice of treating the last exposure employer as the accident employer in the case of an occupational disease, without apportionment. Section 94 applies only the case of multiple Schedule 2 employers. If the legislature had intended cost sharing among Schedule 1 employers or Schedule 1 and 2 employers, it would have included a similar provision.
Section 84 allows cost transfers between Schedule 1 employers, but only if an accident was caused by the negligence of another Schedule 1 employer. It does not apply to Schedule 2 employers. In any event, there was no allegation of negligence in this case.
The Vice-Chair found earlier that the contribution of the appellant employer to the dust exposure was 11%. This was not large but it was not insignificant.
The Vice-Chair found that the WSIA did not provide for apportionment in this case. The appeal was dismissed.