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Tribunals & Administrative Decisions

WORKPLACE SAFETY & INSURANCE BOARD (WSIB)

The Workplace Safety & Insurance Board oversees Ontario’s workplace safety education and training, provides disability benefits, monitors the quality of health care, and assists in early and safe return to work (www.wsib.on.ca).

In 2002, two separate claims relating to second-hand smoke exposure in the workplace were made to the WSIB. Both claimants sought lost earnings and health care benefits due to illness contracted from second-hand smoke in their respective workplaces, and both were successful.

Identities of the claimants are kept confidential by the WSIB, however one claimant, Heather Crowe, who was diagnosed with inoperable lung cancer due to second-hand smoke exposure in the workplace, decided to go public and demand from governments across Canada they eliminate second-hand smoke from all workplaces and public places by enacting smoke-free legislation. The other successful claimant, “Tracy,” is a health care aide, employed at a nursing home in Peterborough County. The Peterborough ruling in August 2001 laid the groundwork for Heather’s successful claim in October 2002.

WSIB ruling: Peterborough County

Tracy, a health care aide at a Peterborough County nursing home, made a claim to the WSIB seeking lost earnings and health care benefits due to treatment of a pre-existing respiratory condition, exacerbated by exposure to second-hand smoke in her workplace.

Tracy was required by her employers to supervise patients in the smoking room. Her reluctance to work inside the smoky room was characterized as an “attitude problem,” and she became concerned that she would be fired if she did not obey her employers. Furthermore, the required three-person limit to the smoking room often contained more than three (at the most nine) smoking individuals at any given time.

Over the course of several months, Tracy sought medical treatment, took sick days, and had trouble breathing. Her doctor wrote letters to the nursing home employers, indicating that she was not to work in the smoking room.

In August 2001, the WSIB ruled that Tracy was entitled to loss of earnings benefits for shifts lost during the ordeal, and laid the groundwork for Heather Crowe’s claim a year later.

WSIB ruling: City of Ottawa

Heather Crowe was an Ottawa waitress for 40 years. During that time frame, Ms. Crowe was regularly exposed to second-hand smoke in her workplaces - hotels, bars and restaurants - until August 2001 when the City of Ottawa enacted smoke-free workplace and public place legislation. In March 2002, Heather began to experience symptoms, and was subsequently diagnosed with inoperable lung cancer.

Ms. Crowe made her claim to the WSIB shortly thereafter. In October 2002, the Board agreed that Ms. Crowe contracted lung cancer due to second-hand smoke exposure in the workplace, and ruled that she was entitled to health care expenses, personal care allowance, independent living allowance (if applicable), loss of earnings benefits, permanent impairment benefit, and other applicable benefits.

Ms. Crowe decided to go public with her case and campaign with various health agencies to call upon provincial governments not only to declare second-hand smoke a workplace hazard, but also to enact 100% smoke-free workplace and public place legislation.

Despite her continued chemotherapy treatments, Ms. Crowe has shown enormous strength of spirit and dedication to tobacco control by traveling across Canada to meet with labour and health ministers, as well as addressing many municipal councils considering implementation of smoke-free bylaws.

BOARD OF REFEREES, EMPLOYMENT INSURANCE

Andrea Skinner was an employee with Casino Nova Scotia. After developing an extreme sensitivity to second-hand smoke in her workplace, as well as becoming more and more concerned about the health effects caused by exposure to second-hand smoke, she quit her job on December 16, 2002. Ms. Skinner then applied for employment insurance claims, and her case was heard at the Board of Referees, Employment Insurance.

On April 30, 2003, the Board unanimously granted Andrea Skinner’s appeal and she was awarded the employment insurance payments claimed. The Board concluded that she had just cause for leaving her employment with Casino Nova Scotia due to exposure to second-hand smoke. The Board concluded that “The Board finds that there is sufficient medical evidence to substantiate the hazards of second hand smoke in the workplace.”

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