Widows taking on Vale – by Carol Mulligan (Sudbury Star – August 2, 2011)

The Sudbury Star, the City of Greater Sudbury’s daily newspaper. cmulligan@thesudburystar.com

It’s not a sexy issue, but United Steelworkers’ J.P. Mrochek hopes to get candidates in the Oct. 6 provincial election talking about the need to change legislation affecting the survivors’ pensions of hundreds of Ontario widows. Two are the widows of members of USW Local 6500 in Sudbury, men who worked for Inco Ltd. for decades.

Marie-Rose Arbour’s husband, Lionel, died May 10, 2010, from lung cancer. The Workplace Safety and Insurance Board approved Arbour’s application for compensation and later survivor benefits for his widow, agreeing his cancer death was related to working in the sintering plant.

The plant operated for 15 years, refining semi-pure nickel into pure nickel, and is deemed responsible for hundreds of cases of lung and nasal cancers among workers. Former USW Local 6500 president Homer Seguin told The Sudbury Star in May 2006, a worker’s rate of contracting lung cancer doubled after one month in the sintering plant. After a decade, they were 13,000 times more likely to get nasal cancer.

Vale Ltd., the new owner of Inco, appealed the WSIB’s approval of Arbour’s claim.

It is not disputing Lionel Arbour died of cancer contracted in his workplace.

The appeal is related to terminology in the Workplace Safety and Insurance Act that lawyers are using to help their clients pay less compensation to survivors.

Section 48 (3) of the act stipulates if “the deceased worker is survived by a spouse … the spouse is entitled to be paid, by periodic payments, 40% of the deceased worker’s net average earnings.”

It’s the term “net average earnings” that companies such as Vale are citing in appeals.

Their argument, said Mrochek, a compensation officer with USW Local 6500, is that “pensioners don’t have earnings.” Pension is income, but it is not earnings because it is not money in exchange for work.

Marie-Rose Arbour has been receiving about $2,000 in survivor benefits from the WSIB since shortly after Lionel’s death. Vale appealed that the WSIB’s appeal board heard the case. It upheld the original WSIB ruling.

Vale again appealed the decision and the matter was referred to the Workplace Safety and Insurance Appeals Tribunal.

Tribunal panel members have ruled in four cases, not related to Vale employees, that the Workplace Safety and Insurance Act of 1997 has been interpreted incorrectly for well over a decade.

No date has been set for the Arbour case to be heard by the Workplace Safety and Insurance Appeals Tribunal, said Mrochek, but if the recent trend continues, “we’re snookered here.”

The decisions of that body “are final and binding,” said Mrochek.

Survivors’ pensions for at least 26 Sudbury-area widows could drop from $2,000 a month to about $700.

“Some of these widows depend on this (money),” he said.

Widows such as Marie-Rose also receive half of the Inco pensions their husbands were receiving. Because Lionel retired decades ago, his widow now receives $236 in pension.

In an interview in her home in the Flour Mill, Arbour, 74, said she doesn’t really understand the reason her survivors’ benefits may be cut.

“To me, income is income,” she said.

Arbour and the other widows were invited to a meeting several weeks ago, where Mrochek outlined the Arbour case, and a second one, and how they might affect pensions.

A decision was made to seek a meeting with Sudbury Liberal MPP Rick Bartolucci, to seek his support for changing the legislation. Bartolucci has accepted an invitation to meet with widows Wednesday at 7 p.m. at the Moose Lodge on Frood Road.

Mrochek said the Workplace Safety and Insurance Act should be amended to reflect “the spirit” it was intended to when it was passed.


Maura Murphy, spokeswoman for the WSIB, explained her agency’s position on this section of the legislation in an e-mail.

“The WSIB’s operational practice in cases of occupational diseases, where the worker was not earning a wage when he first received medical attention for the disease (e. g., worker was retired), is to calculate survivor benefits based on what the worker would have been earning had he remained employed in the disease causing job,” said Murphy.

She gives the example of “Joe”, a miner during the 1960s, diagnosed with lung cancer June 15, 2010, after he retired.

“His survivor periodic benefits would be calculated based on the 2010 earnings of a miner,” said Murphy in an e-mail.

That’s how the WSIB has calc u l at e d “entitlement for widows’ pensions in occupational disease cases” for years, she said.

Mrochek speculates as many as 1,000 Ontario widows could be affected by this interpretation of this legislation.

“The law has to change,” said Mrochek. “So, this is where we need to talk to Rick Bartolucci.”

Mrochek wants the legislation “changed to reflect the current practice of basing the survivor pension on someone’s income, his earnable income, not on earnings.”

MPPs who drafted this legis-l ation, and those who have come after them, should consider this: “Are you prepared to accept the fact a lot of widows are going to suffer from this?”

When asked what she thinks of Vale’s decision to appeal her survivor benefits, Marie-Rose answered: “Not much.”

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