The Royal Commission on Asbestos praises the Workers' Compensation Board as being, "in the sphere of asbestos disease, one of the most progressive compensation agencies in the world." But it strongly criticizes the agency on procedural grounds.
Under its statute, the WCB is vested with broad discretion in the matter of compensating victims of industrial disease. It has used this discretion for enlightened ends, such as recognizing that laryngeal and gastrointestinal cancer can be caused by worker exposure to asbestos and so should be compensable. But, the WCB's discretion, according to the Commission, needs to be structured and confined.
In this respect, the Commission resoundingly endorses certain recommendations recently made by Professor Paul Weiler in a general review of the WCB that was commissioned by the Ontario Ministry of Labour. In particular, the Commission urges that the Corporate Board of the WCB, now made up entirely of full-time commissioners, be composed of a majority of outside, part-time directors. And it gives its enthusiastic support to the creation of an Appeals Tribunal completely independent from the WCB's Corporate Board.
Specifically in the realm of disease compensation, the Commission recommends that asbestosis and mesothelioma be given statutory recognition as compensable diseases. It also advocates the creation of an Advisory Council on Industrial Disease Policy to guide the WCB in the formulation of eligibility rules and in such matters as the rehabilitation of diseased workers and the financing of industrial disease compensation.
The Commission devotes almost an entire chapter of its Report to the compensation of victims of asbestosis. This disabling, irreversible and normally progressive disease is found only among individuals who have had substantial workplace exposure to asbestos. The disease can itself be fatal, and most commonly makes its victims susceptible to death from related causes. The Commission finds substantial evidence that victims of asbestosis suffer psychological as well as physical impairment and that medicine recognizes the reality of psychological impairment. It also observes that Courts take psychological damage into account when they compensate plaintiffs in civil actions. The WCB itself has recognized that psychological impairment can be compensable in the realm of industrial accidents. The Commission therefore recommends a major change in WCB policy so that its compensation of asbestosis victims will encompass their total medical impairment, psychological as well as physical.
With respect to the financing of workers' compensation, the Commission recommends greater experience rating among asbestos employers in future. This means that employer contributions would more closely match claims by their workers. The Commission does not, however, recommend that companies should lose the protection they now enjoy from lawsuits for work-related illnesses. After reviewing the current American experience with widespread asbestos litigation, the Commission states that "the uncertainty, the legal costs, time delays, and burden upon the court system all lead us to reject the creation of a right for injured workers to sue their employer."
There is an exceptional circumstance, however, which the Commission believes should give rise to the possibility of legal action by the Workers' Compensation Board itself. This circumstance would exist where an adverse disease claim experience was occasioned not by chance but because a firm had exposed its employees to a serious health risk without divulging to them what it knew about the size of that risk.
The Commission therefore recommends that the Workers' Compensation Act should be amended to give the Board a statutory right of action, under stipulated circumstances, against an employer whom it believes has withheld such knowledge from employees. The statute should fix the amount that could be recovered by the Board in a successful action at twice the amount paid out on behalf of the employer's disease claims. One-half of this amount would be applied to replenish the Board's accident fund; the other half would be apportioned by the Board as an additional award to its claimants.