- Asbestosis
- Cancer (lung)
- Exposure (asbestos)
- Exposure (silica)
- Fibrosis (pulmonary)
- Dependency benefits (survivor)
The now deceased worker was first diagnosed with interstitial pulmonary fibrosis and later with lung cancer in 1990. The worker claimed that his lung cancer resulted from exposure to asbestos and silica while working for the steel manufacturer accident employer, in particular, between 1973 and 1980. The WSIB initially granted entitlement to benefits for lung cancer, including for a permanent impairment, recognized with a non-economic loss (NEL) award of 50% in 1992.
The worker passed away on June 7, 1996. Following his death, the worker's widow applied to the WSIB for survivor benefits. This triggered a review of the original claim. In a March 1997 decision, and a reconsideration decision dated July 8, 1997, a WSIB claims adjudicator denied entitlement to survivor benefits based on the finding that the worker's death resulted from idiopathic pulmonary fibrosis, and that this condition was non-compensable. The claims adjudicator also concluded that the worker's lung cancer did not result from exposure to asbestos. The worker's estate appealed the following: a) did the worker, through his estate, have entitlement to benefits for lung cancer; b) did the worker, through his estate, have entitlement to benefits for idiopathic pulmonary fibrosis (IPF); and, c) was entitlement to survivor benefits established.The Panel allowed the appeal.The worker's likely exposure to asbestos between 1973 and 1980 fell below the 10-year level set out in the WSIB's standards; however, was significant nonetheless, as was his exposure to silica. As this period of direct exposure was less than 10 years as required in the policy, the Panel found that entitlement for lung cancer under the policy was not established. However, the totality of the evidence demonstrated that the worker's direct exposure to asbestos in the workplace during the time he worked as a heavy labourer in the soaking pits area was significant nonetheless in contributing to his development of lung cancer, as was originally determined by the WSIB. The worker's pulmonary fibrosis likely resulted, to a significant degree, from occupational exposure to asbestos, silica and metal dust, despite the absence of asbestos bodies found in his lungs in biopsy and autopsy. The Panel found the medical opinions persuasive given the reasoned explanations the doctors had provided in support of them, and in light of the findings the Panel had made in respect of the significant level of asbestos and silica to which the worker was exposed in his work from 1973 to 1976, with a more moderate level of asbestos exposure likely thereafter until all bricks in the pit linings had been replaced. The worker through his estate had entitlement for IPF. Pursuant to s. 35 of the pre-1997 Act, survivors' benefits are paid to a worker's dependents when the worker's death "results from" a compensable injury. There was no dispute that the worker's death resulted from IPF. As the worker had entitlement for this condition as occupationally-related, his estate was entitled to survivor benefits. The Panel remitted to the WSIB to determine the nature and duration of these benefits, subject to the usual rights of appeal.