Compensation system hides the real toll of industrial disease
This series examines where Canada falls short protecting workers from job-related illnesses
KITCHENER — More than a century ago, Canadians gave up the right to sue their employer if they develop an occupational disease from their job, in exchange for a compensation system that was supposed to protect them.
But that system, which puts the burden of proof on workers or their families to prove their disease was work-related, was not designed for today’s complicated epidemic of cancers and other occupational illnesses.
When a U.S. worker gets sick from their job, they can take their employer to court — often resulting in much larger financial awards for plaintiffs than Canadians, who can only deal with provincial compensation boards. Those U.S. compensation cases are also public, unlike in Canada, which can have a deterrent effect on other companies who may also be exposing workers to toxic substances.
Between 500 and 600 deaths are blamed on work-related
disease and awarded compensation each year in this country, according to the Association of Workers’ Compensation Board of Canada. But it’s estimated the real toll from occupational disease is much higher — upwards of 8,000 deaths annually, according to a recent University of Ottawa study.
The vast majority of those cases are never compensated. For many Canadians struggling with an occupational disease, there’s often little incentive to file a compensation claim and report their illness. Changing the law to require mandatory reporting of occupational disease cases could help build a more accurate picture.
The WSIB says it’s getting better at assessing what are called “long latency” disease claims, such as cancers, mesothelioma and lung diseases that may not appear until years after someone leaves a job. In 2011, half of those type of claims were denied by the compensation board. By 2018, the rejection rate was down to about 30 per cent.
But workers in some industries still have a very difficult time getting claims approved. Only 15 per cent of occupational disease claims filed by workers in Kitchener’s rubber industry between 2002 and 2017 were accepted by the compensation board. The WSIB later overturned another 10 per cent, following a review of more than 300 of those denied cases.
Kitchener’s Nicole Nowack wants to know if her parents’ early deaths were connected to their job at the same BF Goodrich rubber plant. She watched her mother, Diane Peters, wither and die at age 51 from an aggressive strain of chordoma, a rare and painful form of cancer that attacked her spine.
When her father suddenly began shedding weight a few years later, she became alarmed. Nowack had seen this before, and she feared the worst after losing her mother in 2011.
“I was terrified. I’d already lost my mom, and I can’t lose my dad,” she recalled thinking. “Once I saw the weight loss, I kind of saw my mom all over again, and I started to get worried.”
Her fears weren’t unfounded. Her father, 59-year-old Darryl Nowack, was diagnosed with bladder cancer. The disease came on quickly, and soon he couldn’t get out of bed. Two weeks after he was admitted to hospital, he died. It was Christmas Day 2017.
The deaths left Nowack without parents at age 25. They were both victims of cancers linked to industrial exposures — and both had spent years working in the rubber industry. Unlike the cluster of cancer and lung disease cases among former rubber workers that recently prompted a review by Ontario’s Workplace Safety and Insurance Board, a WSIB claim for occupational disease was not filed in either case.
Now Nowack says she’s filing for compensation because she wants her parents’ deaths to be acknowledged. She understands rubber workers, chronically exposed to carcinogens such as benzidine, beta-naphthylamine and benzene as part of the rubber-making process, have significantly increased risks of bladder and other types of cancer, and she wants answers.
“It’s been hell,” Nowack said. “I want other people to be aware, and if they have loved ones they’ve lost, they should also be asking these kind of questions.”
Nowack used to think it was just a tragic coincidence they both died in their 50s of cancer. She’s not so sure anymore.
“For a long time, I just thought it was bad luck. But then I started to put two and two together, and wonder if maybe that has something to do with it,” she said.
Many Canadians don’t bother to file for compensation because the potential financial return can often be underwhelming. In Ontario, a retired rubber worker with a successful cancer claim may get less than $3,000. A 60-year-old widow whose partner is killed by a work-related disease is eligible for a one-time lump sum payment of $41,883. The amount is reduced the older you get.
If that same widow lived in Ohio, she could get roughly that amount annually, according to an American lawyer who has spent much of his career helping sick rubber workers and their families get compensation.
“Sometimes these things are worth between half a million and a million bucks,” said Thomas Bevan, an Ohio attorney who specializes in compensation claims from rubber workers and their survivors.
Bevan was the first to successfully sue Goodyear, a major Akron, Ohio, tire maker, back in 1993. Many of his American clients were employed by the same international companies that made Kitchener Canada’s rubber capital for much of the 20th century.
Using a combination of civil lawsuits, asbestos trust funds and state-run compensation boards, Bevan’s clients have a wider range of options to pursue compensation — options that aren’t on the table for Canadians.
“It’s still a battle, but we’ve had a lot of success,” he said. “We’ve had a lot of success on rubber worker cases and probably settled a couple thousand of them.”
Many Canadians don’t realize if they pursue compensation for occupational disease through their provincial board, they won’t be able to sue the U.S.-based trust funds set up to compensate workers. It’s an option most Canadians don’t choose to take.
Some cases, like that of New
“For a long time, I just thought it was bad luck. But then I started to put two and two together, and wonder if maybe that has something to do with it.” NICOLE NOWACK
Brunswick’s Ambrose Casey, are exceptions. He was a stevedore for the Canadian International Paper company, spending decades unloading cargo from the bowels of ships coming into the Port of Dalhousie. Into his early 80s, he was still a strong, fit, active man who took pride in his property, snowblowing his driveway and mowing his own lawn. In January 2018, that suddenly changed. In the previous weeks, he’d complained of being tired a lot. Now he was struggling to go to the bathroom and breathing was a challenge.
“They found his lung was full of fluid,” said his daughter, Krista Casey-Smith, a teacher in Fredericton. “They drained his lungs, and he felt better. We thought everything was fine. But you still think, what caused this?”
Doctors sent a tissue sample away for a biopsy. A few weeks later, the source was revealed. Casey had mesothelioma — a painful, deadly form of cancer that most often attacks the lining of the lungs. Most cases are caused by direct exposure to asbestos fibres.
Casey was given six weeks to live. He died on June 3, 2018, at the Campbellton Regional Hospital. His final months were difficult to watch, as the tumours took over his body.
“It was all very fast,” CaseySmith said. “We were reeling. It was a horrific death. There’s no words to describe the amount of suffering he went through.”
In the U.S., where sick workers retain the right to take their fight to the courts, it has led to a dramatically different response to occupational disease, although compensation systems still vary greatly state by state. In states such as California — which leads the country in mesothelioma and asbestosis deaths — those lawsuits can be worth millions.
California was once rich in asbestos deposits, and companies developed many mines and processing plants around the “miracle” mineral. During the Second World War, its shipyards exposed thousands more to asbestos.
The state developed a progressive response to the thousands of asbestos claims from former construction workers, shipyard workers and veterans that began flooding its justice system. Today, its courts fasttrack mesothelioma claims, allowing cases to go to trial within 120 days. Judges often encourage settlements to resolve cases more quickly.
In some cases, the awards dwarf anything Canadians can get through provincial compensation systems. In April 2018, the Los Angeles Superior Court awarded a Los Angeles family $11.4 million (U.S.), ruling that a private water company exposed a former employee to asbestos during his job as a cement pipe installer.
The man’s son successfully argued he also developed mesothelioma when asbestos fibres were brought home on his father’s work clothes.
In another 2010 landmark case, the wife of a deceased municipal worker was awarded $208 million in a mesothelioma lawsuit based on secondhand exposure.
In Canada, it can sometimes take years of going through a bureaucratic appeals process to get an occupational disease claim accepted. For many, it’s not worth it. For those who stick with it, it’s usually not about the money. It’s about seeking justice.
“For most families, they just want to know what happened, and why,” said Dr. Eudice Goldberg, who co-founded the Canadian Mesothelioma Foundation after her husband Arthur Konviser died from mesothelioma in 2005 after a two-year battle with the disease.
It’s estimated that only about 60 per cent of mesothelioma cases are compensated in Canada, she said. Many cases of asbestos exposure are masked by other diseases, and people don’t realize they’re eligible to file a claim, she said. Asbestos, now banned in Canada, has been killing a growing number of Canadians for decades. In 2000, mesothelioma claimed 292 people in this country. By 2016, that number had grown to 510. Thousands more developed lung cancer as a result of asbestos exposure.
Mesothelioma is the No. 1 cause of occupational death in Canada. Since 1996, asbestosrelated disease has accounted for about a third of all workplace deaths.
Casey’s death isn’t recorded among official statistics, because his family didn’t seek compensation through WorkSafeNB. Casey-Smith’s father wasn’t keen to spend the energy filing a claim, and his daughter felt the compensation board was unnecessarily adversarial when she approached them.
“He said ‘Krista, ‘What’s done is done,’ ” his daughter said. “I said, ‘Dad, no. This is wrong.’ They’ve known since the 1930s that this stuff causes cancer. But they didn’t stop production. These people did this for money.”
Instead, Casey-Smith found an Oshawa-based law firm that specializes in mesothelioma claims, targeting U.S. trust funds set up by companies that used to produce asbestos. Working through lawyers, the family filed multiple claims in the U.S.
Eventually, small compensation cheques began arriving every month at Casey-Smith’s mother’s home in New Brunswick.
She still cries when she finds them in the mail.
“He said ‘Krista, ‘What’s done is done’. I said, ‘Dad, no. This is wrong.’ They’ve known since the 1930s that this stuff causes cancer. But they didn’t stop production. These people did this for money.” KRISTA CASEY-SMITH