Highlights of Noteworthy Decisions

Decision 1283 21
E. Smith
  • Expenses (burial)
  • Health care (medical aid) (alternative treatment)

The worker had entitlement for mesothelioma as a result of asbestos exposure. He was diagnosed in January 2017 and died in February 2018. He lived in Australia at the time of his death. His estate appealed a decision of the Appeals Resolution Officer denying entitlement for travel expenses for his two adult children to attend the funeral in Australia and for immunotherapy treatment.

The appeal was dismissed.
Payments must be authorized by the Act and applicable Board policy. The Act and Board policy on burial expenses provide for payment of travel costs for a worker's body but do not say anything about travel expenses for family members to attend a funeral. The fact that a payment is not specifically excluded is not a basis for entitlement. Had the legislature intended to include other travel costs as burial expenses, it would have said so.
At the time of the worker's death, the immunotherapy of Pembrolizumab (brand name Keystruda) was not approved in Canada and was in clinical trials for treatment of mesothelioma. The worker's physicians endorsed the immunotherapy treatment as the worker had not responded to initial chemotherapy. However, the medical reporting at the time indicated that the likelihood of a significant positive response from immunotherapy was no more than a possibility. While most weight was given to the medical reporting available at the date of the treatment, later medical evidence could also be considered with respect to the weight to be given to the opinion of the worker's treating physicians in the earlier time period. The later medical evidence did not establish that it was likely the treatment would have a positive effect.
There must be probative evidence that indicates a probable successful outcome at least to some degree from the treatment. The fact that a worker's doctors support experimental treatment in a palliative situation is not sufficient to make the treatment necessary, appropriate or sufficient within the provisions of the statute.