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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 474 12
3/18/2014
B. Kalvin

  • Board Directives and Guidelines (cancer) (gastrointestinal)
  • Board policies (interpretation)
  • Exposure (asbestos)
  • Investigation by Tribunal (whether required)
  • Mining
  • Cancer (rectum)

The worker worked as a maintenance mechanic for a mining company from 1942 to 1984. He was diagnosed with rectal cancer in 1994 and died of the cancer that same year. The employer appealed a decision of the Appeals Resolution Officer granting entitlement.
Board policy on gastrointestinal cancer in asbestos workers provides that claims will be favourably considered if there is a clear and adequate history of occupational exposure to asbestos dust of a continuous and repetitive nature that represents a manifestation of the major component of the occupational activity.
The Tribunal's Medical Liaison Office recommended that the Vice-Chair obtain an opinion from a Tribunal medical assessor about the relationship between the worker's rectal cancer and his exposure to asbestos. However, the Vice-Chair agreed with Decision No. 25/13, and found that an opinion from an assessor would only be useful if the criteria in the Board policy were not satisfied, thus rendering the policy inapplicable to the case.
The worker had 36.9 years of cumulative service with the employer. The worker was listed on the employer's Asbestos Register as a result of work in the sinter plant.
The employer submitted that the policy only applies to asbestos workers and that the worker was not an asbestos worker. The Vice-Chair noted that, for eight years from 1960 to 1968, the worker was exposed to asbestos for eight hours per week. The fact that this work occurred during employment with a mining company rather than for an employer engaged in the asbestos industry did not disentitle the worker to classification as an asbestos worker for the purposes of the Board policy. For eight years, the worker worked directly with asbestos products. His exposure was not incidental or occasional. Rather, it occurred as a direct result of his work duties, which required him to strip, apply, cut and tear asbestos. The Vice-Chair concluded that the worker was an asbestos worker for the purposes of the policy.
The policy provides that the exposure should be of a continuous and repetitive nature. The Vice-Chair was satisfied that the worker's exposure for eight hours per week over a period of eight years was of a continuous and repetitive nature.
The policy also provides that the exposure should be a manifestation of the major component of the occupational activity. The employer submitted that the worker had no exposure to asbestos 95.9% of the time and exposure to asbestos for only 4.1% of the time. The Vice-Chair noted that, while this might be true of the worker's duties when extrapolated over the entire period that he worked for the employer, it was not true for the period between 1960 and 1968. The Vice-Chair stated that it was not necessary for a worker to show performance of activities involving asbestos exposure during an entire working career. As long as the worker was exposed to levels of asbestos satisfying the criteria in Board policy for some portion of the worker's career, the worker is entitled to benefits under the policy.
The phrase that the asbestos exposure "should represent or be a manifestation of the major component of the occupational activity" may be interpreted in different ways. The Vice-Chair adopted an interpretation that the major component of the worker's activities in this case was as a maintenance mechanic and that exposure to asbestos was a manifestation of that work during the period in question.
The Vice-Chair concluded that the worker met the entitlement criteria in the Board policy. Accordingly, the worker's estate had entitlement to benefits for the worker's rectal cancer. The appeal was dismissed.