- Mesothelioma
- Accident (date) (occupational disease)
- Pleural plaque
In November of 2021, the worker filed a Form 6 with the WSIB, claiming his cancer arose out of and in the course of his employment and exposure to asbestos. In December 31, 2021, the worker's claim was allowed, with an accident date of May 25, 2021, when he first saw his family physician for the condition. The maximum medical recovery (MMR) date was determined to be May 26, 2021. The worker's representative contested the date of accident, arguing that it should have been March 28, 2014, the date that x-rays demonstrated he had pleural plaques. The worker passed away on February of 2, 2023. The worker's estate appealed the accident date to the Tribunal.
The Vice-Chair denied the appeal. The worker's representative submitted that the worker's accident date should be tied to the identification of his pleural plaques, which was the first indication of asbestos related disease, and which did not improve but morphed into mesothelioma. The worker's representative submitted that the worker's mesothelioma was the inevitable, end result of the pleural plaques. It was argued that a consideration of the true merits and justice of the case would lead to the accident date being established as either February 20, 2014 (when the worker sought medical treatment for his symptoms), or March 28, 2014, when x-rays confirmed the presence of pleural plaques. The Vice-Chair disagreed with the characterization that pleural plaques and mesothelioma were "inextricably entwined." Pleural plaques are seen as a marker of asbestos exposure, but frequently exist as a single condition. For instance, Tribunal decisions have considered how to rate permanent impairment awards for pleural plaques as a discrete condition (see Decision No. 376/13). Overall, Tribunal case law does not support that pleural plaques are a necessary precursor to mesothelioma (see Decision No. 2015/08). It is well established that pleural plaques and mesothelioma are separate and distinct conditions, although the injuring agent is similar. In other words, having one does not signify one will have the other. Further, there was no evidence that the worker had ongoing symptomatology with regard to respiratory problems between 2014 and 2021. With respect to the progress of mesothelioma, Tribunal case law shows that most workers die within two years of diagnosis. This is not the case with pleural plaques, which can cause breathing impairment and can, in some cases, be seen as benign. The worker had pleural plaques for almost a decade. However, he was diagnosed with mesothelioma in the spring of 2021 and passed away in February of 2023. The trajectory of the one condition differed significantly from that of the other. There was no medical information to suggest that there was a rateable impairment in respect to pleural plaques as of 2014.