DECISION NO. 94/91
Exposure (asbestos).
The worker appealed a decision of the Hearings Officer denying
entitlement for asbestosis which the worker related to exposure to asbestos when the building in which he worked was being renovated.
There was no evidence that the worker was exposed to asbestos at work. The appeal was dismissed. [6 pages]
PANEL: Bigras; Jackson; Preston DATE: 22/11/91
DECISION NO. 94/91
This appeal was heard in Toronto on February 8, 1991, by a Tribunal Panel consisting of:
J.G. Bigras : Vice-Chairman,
K.W. Preston: Member representative of employers, F. Jackson : Member representative of workers.
THE APPEAL PROCEEDINGS
The worker is appealing the decision of Hearings Officer R. Berrey, dated June 14, 1990. The decision denied the worker entitlement to compensation and health care benefits for a respiratory disability, diagnosed as asbestosis, claimed to be related to exposure to asbestos during the worker's employment with the accident employer.
The worker attended and was represented by a friend. The accident employer was represented by R. Morse, of Control-Comp Consultants.
THE EVIDENCE
The Panel had the Case Description prepared by Tribunal Counsel Office and one Addendum dated January 22, 1991. The worker gave oral evidence with the assistance of a Greek interpreter.
Post-hearing, the Panel requested Tribunal Counsel Office to contact the Ontario Ministry of Labour, Occupational Health and Safety Division, in
reference to the possibility of testing for asbestos at the worker's place of employment from 1969 to 1973. The Ministry's response was dated
June 28, 1991. The worker's representative's post-hearing submission was received by Tribunal Counsel Office on September 16, 1991.
THE NATURE OF THE CASE
The worker was a cutter employed in a tailor shop owned by the accident employer, from 1966 to 1973. The worker claims that from 1969 to 1973 he worked in a basement of an old building where renovations were being carried out and believes that he was then exposed to asbestos dust.
In 1974, the worker went to work for another employer. The nature of his work, a cutter in a tailor shop, did not change. However he does not claim exposure to asbestos dust at that time.
The worker had sustained an accident to his lower back for which he was granted a 10% pension in 1979 and has been increased to 50% in 1988.
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The worker claims that, in 1982, he started to experience breathing problems. In May 1985, the worker was referred by his family physician to a respirologist. Radiological tests showed "extensive pleural
calcification...consistent with the effects of asbestosis". Medical tests did not reveal any signs or carcinoma, nor were doctors in agreement with regards to any functional disability caused by the asbestosis.
The Board denied the worker compensation benefits on the grounds that it had not been shown that the worker had been exposed to asbestos while in the course of his employment.
The worker is claiming health care benefits and permanent disability benefits for the asbestosis condition. Asbestosis is considered an industrial disease for which compensation is awarded under the provisions of section 122(1) of the Workers' Compensation Act of Ontario which, prior to
July 27, 1989, read as follows:
122(1) Where a worker suffers from an industrial disease and is thereby disabled or his death is caused by an
industrial disease and the disease is due to the nature of any employment in which he was engaged, whether under one or more employments, the worker is or his dependants are entitled to compensation as if the disease was a personal injury by accident and the disablement was the happening of the accident, subject to the modifications hereinafter mentioned or contained in the regulations, unless at the time of entering into the employment he has wilfully and falsely represented himself in writing as not having previously suffered from the disease.
THE PANEL'S REASONS
(i) Background of the case
The worker was born in Greece in 1934. At the age of 14 he became employed in a small private clothing store where he was an apprentice cutter and delivery man. From 1958 until 1960, he served in the army. After his military service he worked in a small tailor shop in Athens.
In May 1966, the worker came to Canada and shortly thereafter became employed by the respondent employer in this case. As a cutter he handled wool, wolf and fox furs, and different synthetic materials.
In 1969, the employer firm merged with another company and the shop was moved to an old building in the garment district of Toronto. The worker worked in the basement of that building. He worked mainly with synthetic furs, nylons, and plastic. In 1986, the worker's lawyer had tests conducted which some of these materials and no asbestos fibres were found in these materials. The worker claims that while employed in the basement of the old building there was no ventilation system but that some windows were opened for air. There were fans in the summer but no exhaust systems. The worker claims that, in 1968 or 1969, a renovation program was conducted in the building. Sub-contractors carried out renovations in the hallways and the restaurant.
The worker claims that there was a considerable amount of dust from the work being done, the hammering and the cutting of the wood. The worker states that the renovations were completed in 1970 but that there were incidents of pipes bursting and the possibility of asbestos exposure when covers were removed and placed over the pipes.
In 1974, the worker went to work for another firm. He was located on the third floor of a building in an area surrounded by brick or mortar ceilings and walls without drywall. He claims that there was also some construction being carried out and that workers were putting up blocks, electrical wiring, and cutting wood and that this produced dust. He cannot recall whether
insulation was present.
The worker had sustained a back strain in 1972 and a compensation claim had been filed. In 1978 the worker had laid off for three months due to a recurrence of his back injury. He returned to work for a few days and again laid off. He has not returned to work since that time. On August 22, 1979, he was granted a 10% permanent disability pension. On January 28, 1983, the
pension was increased to 40% with an added provisional 10% award for "gross psychogenic magnification." On June 21, 1988, the organic pension was increased to 50%.
The worker states that, around 1981 or 1982, he developed breathing problems. He saw his family physician a Dr. Pawlowski, now deceased. There is evidence on the file that x-rays of the worker's chest were taken on
June 23, 1982. Further x-rays were taken by Dr. D.E. Sanders on May 22, 1985. Dr. Sanders reported no changes in the findings of June 23, 1982. His opinion was that there was "extensive pleural calcification consistent with the effects of asbestosis." The worker was seen on June 17, 1985, by Dr. E.S. Lilker a consultant in respirology. Dr. Lilker ruled out asthma, conducted lung
function tests, and obtained a dermatology opinion on the lesions observed in the x-ray films. He confirmed that the worker's shortness of breath seemed to be due "to a severe restrictive process, probably asbestosis". On
August 21, 1985, internist Dr. M.K. Sarin, confirmed that bronchial washings supported a diagnosis of asbestosis. However pulmonary function studies
showed that the worker had "excellent lung function". Dr. Sarin stated in his report that there did not appear to be any carcinoma but that there was a risk for development of lung cancer of mesothelioma, and recommended future
follow-ups in that perspective. On December 19, 1989, Dr. W.O. Geisler a specialist in rehabilitative medicine advised the worker's family physician Dr. J. Vavougiougios that the worker was totally disabled due to his painful back discomfort and a psychogenic component that had evolved from his soft tissue injury. On February 9, 1990, Dr. Lilker summarized the worker's chest problem as follows:
...There is really definite evidence that this man has radiological and sputum evidence of asbestos disease. Functional aspects do not enter into the situation at this stage. Pulmonary function showed restriction and a low gas effusion in 1985, and these results, too, are quite in keeping with this diagnosis.
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(ii) The reasoning
In order to grant compensation in the present case it would have to be established first, that there is a history of occupational exposure to asbestos. Without this link establishing a causal relationship between the worker's injury causing his disability and his employment it would be
impossible to grant compensation in this case.
Although the medical evidence does not seem conclusive on whether or not the worker's lung problem is causing a disability, the Panel is of the opinion that such evidence however shows that the worker has in fact asbestosis. As stated by Dr. Lilker, radiological and sputum evidence show an asbestosis condition. Internist Dr. Sarin confirms this diagnosis.
On the issue of the worker's exposure, the Panel does not doubt the worker's nor his representative's sincerity in believing that the worker may have been exposed to asbestos while in the course of employment. However we were not able to find any evidence to confirm this belief.
There is no doubt that the worker may have been exposed to different fibres from the materials which he was called to cut while employed in the tailor shop. However Board investigation and the worker's own lawyer's
investigation have given negative results in that regard. Tests independently conducted on the materials provided by the worker to his lawyer showed no presence of asbestos. We must also note that the worker was employed as a tailor and handled different materials in different work areas of which we have no descriptions during 16 years while in his native Greece.
With regards to the presence of asbestos in the workplace Board and Tribunal investigations have not been able to reveal any evidence of such exposure. While the worker states that there was considerable dust generated from various types of materials used in the renovation of the old building where he was situated, we note first that the construction project did not last more than one year. Board guidelines require a two-year exposure history to asbestos. Also the worker's and his representative's claim that there may have been asbestos in the materials handled at that time are only speculative. The Board investigation could not find any support to that claim.
Significantly in this regard, the Board's Decision Review Specialist on December 15, 1986, inquired from the Asbestos Workers' Union whether their workers would have been involved in any type of removal or installation of asbestos materials in the building at issue. The reply from the union, which was dated February 18, 1987, was negative.
Following the hearing the Panel asked Tribunal Counsel Office to inquire from the Ontario Ministry of Labour, Occupational Health and Safety Division, on whether there were any record of testing for asbestos in the building at issue. Dr. T.L. Palmear the Director of Health and Safety Support Services Branch of the Ministry advised us that no such record of any testing was in existence. We acknowledge the worker's representative's argument that
Dr. Palmear's reply should not allow us to deduct that there was no exposure to asbestos because "during 1966 - 1973, asbestos and asbestosis was not yet acknowledged to the awareness we have today". However without any evidence of exposure to asbestos during the course of the worker's employment, we cannot grant entitlement to compensation.
THE DECISION
The appeal is denied.
DATED at Toronto, this 22nd day of November, 1991.
