Compensation Café: Occupational Diseases and Asbestos - What Do we Know?
Written by: Janet Patterson, WELLS Director
This blog series is meant to cover all things related to Workers’ Compensation. It is managed by one of our WELLS Directors, Janet Patterson.
Occupational Diseases (OD) are the most deadly of work injuries, but they receive little public attention.
Catastrophic workplace tragedies receive, and of course deserve, a great deal of media attention. There was intense coverage of the mill explosions at the Babine and Lakeland, the crane collapse in Kelowna and the tug boat sinking off Prince Rupert. But coverage of these events often focuses on the personal drama - “if it bleds, it leads” – with little attention to the slower, deeper safety failures which precede such events.
Therefore, the silence surrounding workers’ slow deaths from occupational diseases is not surprising, even though these deaths greatly outnumber traumatic work-related deaths. The International Labour Organization (ILO) now estimates that worldwide, 6 people die from an occupational disease for every person who dies from trauma at work.
There is a new spotlight on this area, provided by the Occupational Cancer Research Centre (OCRC) as part of its large “The Burden of Occupational Cancer Project”. One of the project’s many reports, Using Scientific Evidence and Principles to Help Determine the Work-Relatedness of Cancer: the Final Report (the “Report”) is especially interesting. The Report identifies four carcinogens as being responsible for the greatest occupational cancer burden in Canada - asbestos, diesel engine exhaust, solar radiation and crystalline silica.
According to the Report, OD statistics are usually based on accepted compensation cases but this creates a misleading picture. Using other data sources, the Report estimates that the true number of occupational cancers in Ontario is many many times higher than the number of compensation claims made or accepted - of 2,900 cancer cases for known carcinogens, only 170 had accepted compensation claims.
The Report extensively considers why there such a low rate of compensation and makes four recommendations:
- Update compensation’s presumptive lists and cancer-relevant policies
- Enhance the Board’s scientific capacity
- Improve access to exposure data
- Improve practitioner’s recognition of occupational cancer through medical education
I will be discussing these recommendations as they apply to B.C. in future blogs. But first, I would like to address one of the identified and best-known carcinogens – asbestos.
ASBESTOS – ONE HAZARD, MANY CANCERS
Asbestos is a known killer. The labour movement is largely responsible for the wide recognition and regulation of asbestos as a deadly substance. It was finally banned in Canada on December 31, 2018.
Asbestos is a substance which can cause both asbestosis (a thickening of the lungs, but not cancerous) and multiple types of lung cancer, including mesothelioma. Mesothelioma is unique in that it can only be caused by asbestos exposure. All of these cancers can be deadly:
Exposure to asbestos is the number one killer of workers in Canada and in British Columbia. Mesothelioma, lung, laryngeal and ovarian cancer and asbestosis are occupational diseases and illness caused by asbestos exposure.
According to the Report, there are some striking findings about compensation claims for asbestos related cancers:
- Claims for asbestos related cancers are more often accepted than claims for other work-related cancers.
But of these, mesothelioma is accepted much more often than the other types, even though for every case of mesothelioma, there are 5 other asbestos-related lung cancer cases. Everywhere, these other asbestos-related lung cancers are both severely under-reported and under-compensated.
- This trend holds true for B.C. Although B.C. has a “substantially better” rate of acceptance for mesothelioma claims than other provinces, it has a similar acceptance rate for other types of asbestos related cancers.
If the Report’s ratio of reported vs. actual cases of occupational cancer are accurate, it suggests that in B.C., the burden of all asbestos related cancers between 1995-2019 is in the range of 16,000 workers. This does not include workers diagnosed with asbestosis which is not coded as cancer.
THE HAZARD OF ASBESTOS REMOVAL – A case study
It is known and proved: unless asbestos is carefully handled and controlled, it is a killer.
And although it is now banned in Canada, asbestos is still everywhere. Because it was used extensively as a fire retardant and insulator, asbestos is in many thousands of homes, office buildings, hospitals, schools, and more. Safety concerns now focus on ways to remove asbestos safely from buildings and materials.
Today, the BCFED is campaigning for effective regulatory control of asbestos removal, including a provincial licensing scheme for asbestos abatement contractors, provincial programs for training asbestos abatement workers, and the regulated testing of samples. Also needed are pre-demolition inspections and confirmation that asbestos abatement has been properly completed before a renovation, demolition or building permit is issued.
These recommendations are critical for all workers and members of the public who may end up in harms way during asbestos removal. A recent WCAT decision illustrates this well. The case involved a husband’s appeal, after his wife, a teacher, died from mesothelioma.
Asbestos containing materials (ACM) are low risk until the substance is disturbed – for example, through a floor removal or a wall repair. Therefore, the question was whether the teacher had been exposed to disturbed asbestos in her school.
The WCAT panel found that she had been exposed, given the following:
- All schools in the teacher’s career contained ACM . In about 2005, her school started various construction projects which cut through or removed tiles, plumbing and fixtures containing asbestos.
- During these projects, the construction workers wore hazmat suits and masks but staff and students had no protection.
- The teacher had conversations with the construction workers, who told her they were removing asbestos. She then shared this information with her family and co-workers, who reported these conversations to WCAT. The panel accepted this hearsay evidence as the best possible evidence from the worker, while finding that the evidence from the Board’s Occupational Hygienists on this point was flawed.
- The teacher’s family and co-workers gave evidence that the construction workers were removing ACM items during school hours and that dust was everywhere. The employer did not produce evidence from its staff who were in charge of the asbestos abatement programs and the panel drew an adverse inference from this absence.
- Previously, the employer had been penalized for not implementing an asbestos management program.
The WCAT panel found that the teacher was exposed to disturbed asbestos while working at her school and that this exposure (2005-2007) had caused her mesothelioma and death in 2014. The claim was accepted, entitling her family to survivor benefits.
COMPENSATION PROBLEM: LATENCY PERIODS DEFEAT PRESUMPTIONS
What if you develop cancer from asbestos exposure at work? This may be a long time after your exposure because the latency period for cancer can be 20 years or more.
Such claims should face easy acceptance, given the well-established connection between asbestos and cancer and the presumption that asbestos-related cancers are caused by work when there is asbestos exposure at work.
But under the Act, presumptions apply only to workers who are employed with work exposure “immediately before” their first date of a disability.
Prior to 2004, Board policy stated that “immediately before” had to understood in light of established latency periods. In 2004, the policy was changed to remove this reference and since June 1, 2004, the term “immediately before” is strictly applied. Of course, most workers who develop occupational cancers, like the teacher above, are diagnosed after they are retired or are not working due to illness. And if they are not working “immediately before” they get ill, there is no presumption. The 2004 policy change effectively denies the presumption to most workers with occupational cancers, despite the historical intention to create a presumptive recognition for them.
A cancer presumption must take latency periods into account or the presumption is a sham.
The science on latency periods for cancers was advanced through the work of the special compensation program set up after the 9/11 attacks on the New York World Trade Centre. This compensation program used a variety of scientific methods and research to develop “minimum latency periods” for each disease, to ensure that in each case, the disease linked back to the 9/11 event. It established that the minimum latency for most cancers is 4 years; for mesothelioma, it is 11 years. And of course, the latency period can be much much longer.
There is a pressing need for legislative change to restore cancer presumptions. Without legislative change, most asbestos-related cancers will be excluded from a presumption of work causation – another insult to a terrible work-caused disease.
WHAT SHOULD BE DONE?
- Support the lobby campaign of the BCFED to the Ministry of Labour to create provincial standards and regulate asbestos abatement. As the tragic case of the teacher shows, it is not sufficient to protect only workers. All people who are around asbestos during renovations are at risk and need the protection of provincial standards.
- Be diligent when you are near an asbestos removal project (even if you are not working on the renovation yourself) and familiarize yourself with the many materials that may insulated with asbestos today (pipes, ceiling tiles, drywall, etc.). Investigate and document any potential or possible exposures.
Demand that the Workers Compensation Act be amended so that the presumption of work causation for asbestos cancers (and all cancers) and asbestosis is applied with a recognition of established latency periods.
If you would like to comment on this or any blog or make suggestions as to future blogs, you may contact me at [email protected].
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