Workers’ Compensation for Asbestos Related Disease in Five Canadian Provinces

Abstract

Executive Summary: This study addresses the legal and policy frameworks for compensation of occupational diseases attributable to asbestos exposure in five Canadian provinces: Alberta, British Columbia, Newfoundland, Ontario and Québec. It aims to describe and compare criteria applied by compensation boards and appeal tribunals in each jurisdiction, for the purpose of determining entitlement to workers’ compensation for asbestos related disease.

The report relies essentially on classical legal methodology including a legal analysis of legislation, publicly available policy documents of the respective workers’ compensation boards, and publicly available case law and administrative decisions rendered between 2000 and 2009.

A comparative table describing legislative and policy instruments can be found in Appendix 1. Comparative tables of compensation statistics regarding injuries and fatalities for the period 1998 - 2008, based on data provided by the Association of Workers’ Compensation Boards of Canada, can be found in Appendix 2.

The report examines principles of adjudication applicable to compensation for occupational disease claims, and then focuses more specifically on occupational diseases recognized in law or policy to be attributable to asbestos exposure.

Entitlement to compensation for asbestos related diseases: Legislative presumptions govern compensation for occupational disease in all the provinces studied, but there is significant variation between provinces with regard to many issues. An overview of similarities and differences in legislation and policy with regard to specific illnesses may be found in Appendix 1.

Asbestosis is the only disease presumed to be related to work involving exposure to asbestos in Alberta, while mesothelioma is also included in the legislation of the other four provinces. Lung cancer, cancer of the larynx and gastro-intestinal cancers are targeted by legislation and policy of some provinces but not others. Ontario and Newfoundland provide for irrebuttable presumptions in the case of asbestosis and, this is also so in Ontario with regard to mesothelioma, if very specific conditions of exposure and latency are met. Other provinces allow for the possibility that the presumptions may be overturned, and the presumptions are often overturned in the case law, notably in Québec, where the presumptions are framed in more general terms. In those provinces with policies determining specific exposure and latency requirements there is variation between provinces. Some provinces are not explicit with regard to the exposure and latency requirements, evaluating the individual situation in each case. Specialized medical evaluators (six) are systematically consulted in all claims for respiratory diseases in Québec, and Ontario provides for evaluation of individuals in the context of the appeal process, while, in other provinces, like Newfoundland, level of evidence in the case law leads us to believe that it is more difficult for workers to obtain diagnostic analyses in that province. Cross-cutting issues: Boards and adjudicators are faced with the challenge of determining in individual cases whether workplace exposure to asbestos contributed to the worker’s disease. Legally, all provinces require that it be more likely than not that the workplace exposure contributed to the worker’s illness, and usually they require evidence that work was a significant contributing factor in the development of the disease. Generally, either by legislation, policy or case law, there is a consensus that the worker should be given the benefit of the doubt in cases where the evidence for and against legal causation is of equal weight. Asbestosis claims are clearly acknowledged to be related to asbestos exposure, and this is also true of mesothelioma, although this is not explicitly acknowledged in law and policy of all provinces. With those diseases, the challenge is to determine where that exposure took place, and, in the absence of asbestos exposure registries, the burden of proving exposure falls on the worker or his estate, a difficult burden to meet. Lung cancer claims are even more challenging because tobacco can also have played a significant role in the development of the disease. Case law allows for compensation for lung cancer even when the worker smoked, if asbestosis or pleural plaques are present. Ontario and Québec allow for compensation even in the absence of asbestosis or pleural plaques, when evidence of significant exposure is clear, while Newfoundland policy has no explicit criteria in this regard. Policy in B.C., and most case law in that province, will not compensate for lung cancer if asbestosis is not present, unless there is evidence of “bilateral diffuse pleural thickening or fibrosis, over 5 mm thick and extending over more than a quarter of the chest wall”, a requirement not seen in any other province.

Concerns: The report expresses concerns with regard to fairness and equity. Given the long latency requirements for all asbestos related diseases, it is unclear why policies in some situations only apply if the worker is still active in the industry shortly before or at the time of onset of disablement, as is the case in Alberta, B.C. and Newfoundland. Requirement of significant in-province exposure, as is the case in British Columbia, is also a preoccupation, and will become even more preoccupying as workers are increasingly mobile, notably in the construction industry. A broader concern is that some policies, particularly those that provide for explicit exposure requirements or latency periods, have been developed in a way that imports thresholds based on levels of scientific certainty, even though the appropriate legal test aims to determine whether, in a given case, it is more likely than not that workplace exposure contributed to the onset of disease. Yet the purpose of legislative presumptions is to govern behaviour in the context of scientific uncertainty; they are policy instruments that determine who should bear the cost of that uncertainty. As such, they should not be predicated on scientific certainty.

Issues requiring further study: All members of the research team are jurists, and the study does not include an evaluation by medical specialists as to the relevance of the criteria applied and the policy orientations. Such an analysis would no doubt be useful. Furthermore, some cases have applied the “Helsinki criteria” in adjudication of individual claims. The present report does not review these criteria as such, but provides information as to the discourse of the adjudicators in this regard. Further study of these criteria and their potential relevance in adjudication could perhaps provide useful direction for the development of policy. This study, because of its methodology, does not provide information either on reporting levels or acceptance rates for compensation claims. It also cannot address inequitable access to health care professionals specialized in occupational disease related to asbestos, yet there is some concern that workers in some provinces are not receiving specialized evaluations that would improve their chances of accessing compensation. Studies on all of these issues could contribute to defining more equitable policy and practice.

Keywords: asbestos, workers' compensation, occupational disease, Canada