Highlights of Noteworthy Decisions

Decision 695 21
18/05/2021
B. Kalvin
  • Apportionment (occupational disease)
  • Apportionment (Schedule 1 and 2 employers)

The worker was a teacher for the employer school board from 1969 to 1996, when he retired. He was diagnosed with mesothelioma in 2011, which he claimed was caused by exposure to asbestos during his employment. The Board allowed his claim with an accident date in 2011, when he was first diagnosed.

The employer school board was a Schedule 1 employer until 1993, when it changed to a Schedule 2 employer. The employer requested that costs associated with the worker's claim be transferred to its prior account as a Schedule 1 employer, since most of the exposure occurred when it was a Schedule 1 employer. The Board and the ARO denied the request and the employer appealed.
The appeal was dismissed. As there was only one employer in this case, statutory provisions and cases dealing with apportionment between two or more different employers were of limited value. The change in status from a Schedule 1 to Schedule 2 employer did not mean that the employer should be regarded as two separate legal entities for the purpose of the worker's benefit claim. Section 21(8) provides that in cases of occupational disease, notice of a claim is given to the last employer who employed the worker during the period of exposure. Notice of the worker's claim was given to the employer in 2012, when it was a Schedule 2 employer. The Act contains provisions for apportioning costs of an occupational disease claim between two or more Schedule 2 employers, but there is no provision for apportionment between Schedule 1 and Schedule 2 employers. As noted in Decision No. 3113/18, the Legislature could have, but did not, provide for cost sharing between Schedule 1 and Schedule 2 employers. Apportionment was therefore not authorized or warranted.
Decision No. 3113/18 found that, for the purposes of the notice provision in s. 21(8), the notice was to be given to an employer at which the worker had more than a de minimis exposure. Unlike in Decision No. 3113/18 where there were various different employers, there was only one employer in this case. Moreover, the vice-chair in Decision No. 3113/18 confirmed that the statute does not provide for apportionment of costs between Schedule 1 and Schedule 2 employers in occupational disease cases. Even if the de minimis principle could be applied, the evidence did not establish that the worker's exposure to asbestos after 1993 was de minimis.