GE employee health file still being mismanaged

The handling of the GE occupational disease file has been badly mismanaged by both the Ministry of Labour and the Workplace Safety and Insurance

Board (WSIB). And it looks like the options are running out.

Up until last September the Minister of Labour insisted that the WSIB system was seriously “broken,”and put claimants through an horrendous experience. In his view, a more just and speedy

way needed to be found that didn’t put such enormous burden on these victims.

So it was a shock to hear the minister announce, in the fall of 2017, that the WSIB would be re-considering 250 previously denied claims without participation by Occupational Health Clinics for Ontario Workers (OHCOW) in the investigation, and refusal to fund OHCOW’s work on the GE file.

From the start there were many unanswered questions: What criteria were used by the Board to select these 250 cases? How many cases were left behind?

What standard of evidence would be used to review these cases? We were told that the Board was using some type of “decision matrix” in its review. But our requests to review this “matrix” were ignored, even though the Minister promised to share this with our Committee. Needless to say, the re-consideration process was not transparent. And finally, why had the minister placed such trust in the WSIB to do the right thing after maintaining that the WSIB was “broken” and that another approach was needed?

Neither the union nor the Advisory Committee was in favour of the reconsideration process set up by the MOL/WSIB. We preferred an expedited process with a burden of proof that was in line with the Supreme Court of Canada’s recent decision in the British Columbia breast cancer cluster case. Unfortunately, these demands were ignored.

The current MOL/WSIB- inspired plan to reconsider some 250 previously denied claims in the light of “new evidence” has become a debacle.

What was billed as a showcase of justice for GE workers, has been exposed for what it really is—a tactic to put the current government and the WSIB in the best light before the June election.

However, this appears to have backfired, since recent data show a marked decline in the number overturned claims. N

ow that the less complex cases have been addressed, more complex cases are being subjected to a much higher standard of proof that is reflected in the Board’s 45% allowance rate.

The Board and the Ministry of Labour have created a massive backlog that will be destined for appeal and assessment by OHCOW. And given the already large backlog at the tribunal, it will likely take years to decide these claims.

Last March, OHCOW was promised additional funding to handle new cases generated by the Minister’s information sessions. But with the reconsideration process solely in the hands of the Board, the Minister withheld OHCOW funding, and OHCOW was directed to send all 77 new cases directly to the Board resulting in a year delay.

Given the declining allowance trend, it is expected that there will be over 100 claims going to appeal from the 250 claims, in addition to: a group put forward from the 61 new claims at the board, an undetermined number of denied claims from the 77 new cases, and finally, a number of denied claims coming from the GE Trenton plant.

On numerous occasions questions were raised about the board’s approach to disease recognition which is hamstrung by major systemic obstacles which include: the onerous burden proof requiring scientific certainty; legalized thresholds rather than guidelines; and ignoring doctor’s assessments of workrelatedness.

The minister also flirted with presumptive entitlement legislation similar to Ontario’s firefighters.

However, this was smoke and mirrors rather than something tangible. Neither the minister nor advocates provided any details of what they wanted. The firefighters’ experience with this approach has been mixed. Despite presumption for 16 cancers, over 75 per cent of total cancer claims are denied. And recently the minister admitted that the WSIB was opposed to presumptive entitlement.

Several recent denials of GE claimants are instructive for what they reveal about the problems with the WSIB’s approach to disease recognition.

Take the case of esophageal cancer for a worker in punch press.

The board ruled this individual did not have sufficient exposure to asbestos or benzene without any evidence that this was so. Yet the Board ignored more relevant exposures including the worker’s exposure to metal working fluids (MWF) and grinding dusts, and the fact that scientific studies show a strong association between esophageal cancer and exposure to these. Why ignore such well-established evidence?

Or take the case of brain cancer coming on after 40 years at GE. According to the board’s decision, the cancer was not caused by work because the worker was never exposed to nuclear radiation in the Nuclear Department. Why would the board exclude other exposures at GE that are also linked to brain cancer such as lead, vinyl chloride and electromagnetic fields (EMF)?

We will not see any significant improvement for GE workers without a major change in the way the board approaches occupational disease recognition, including consideration of multiple toxic exposures.

There is an immediate need to implement an expedited adjudication process that is transparent and based on standards of evidence in accord with the Supreme Court of Canada’s recent decision in British Columbia. There also needs to be a public inquiry into the operation of the WISB with a view to placing the WSIB under democratic control. It is no longer tolerable to have a worker compensation system based on the practices and policies of a “private” insurance company.