Comox Valley plumber doesn’t accept WorkSafeBC’s response – Comox Valley Record

(The first part of this story [see link at bottom of page] looked at an asbestos case at a local construction site and the legal ramifications.)


A plumber’s long-running battle over asbestos on construction sites in Comox Valley has resulted in his unemployment and being fired by an employer he filed a complaint against in May 2019, although the employer denies this is related to the complaint .

While David Ian Hamilton took action against Apex Plumbing and Heating, which claimed he was harassing them, he was fighting asbestos on other fronts.

When the symptoms started

In the fall of 2019, Hamilton received a copy of the WorkSafeBC work freeze for a Comox job. He has tried to urge them to impose an operational freeze order on the company. A spokesman for the agency said it could stop working in other employers’ workplaces, but it needs reasonable reasons.

Hamilton has also had claims for injuries, including a shoulder injury, but the key questions concern trauma associated with the stress of the asbestos battle. WorkSafeBC accepts its psychological state, which it believes sets a precedent in that workers can submit asbestos without having to wait for a physical illness such as asbestosis to set in. However, Hamilton disagrees with her opinion that he only developed the disease after receiving the report on the Comox Church in October 2019.

“The events that culminated in his current referral seemed to have started in 2008,” the report reads.

It outlines his medical history, including problems with anger and frustration, and states, “He has a strong sense of what is right…. He has the feeling that he inherited it from his grandfather, who always stood up for the right thing. “

WorkSafeBC’s own assessment from early 2021 confirms this earlier case history and says that in 2012, Hamilton experienced fear and anger triggered by problems “similar to those that fall under the current claim”.

However, Hamilton says that assessment is only a report, and not the decision. A spokesman confirmed: “On October 31, 2019, the worker learned that WorkSafeBC had given the construction site a work stop for improper handling of asbestos. This is the date that the employee’s symptoms started. Our auditing department has determined that the October 31, 2019 incident can be compensated for this reason and any benefit entitlement will commence from that date. “

Training gaps

Hamilton is also bringing his name forward as the lead plaintiff in a class action lawsuit against all workers’ compensation bodies across Canada. A friend and former colleague has compared Hamilton to working-class movie heroine Norma Rae, and while he may feel alone, he’s far from it. In fact, the asbestos situation in the province is ambiguous. In January, an article in Construct Connect magazine headlined, “The private sector and unions fill the BC gap in asbestos education,” highlighted the lack of training. Sometimes workers are even confused about basic issues such as facial hair when wearing respirators. Andrew Swan, health and safety trainer for the Finishing Trades Institute of British Columbia, told the Record there were concerns about the standards of the training content. So they created programs to protect workers. Part of the challenge is to train workers to know they have rights, but first they have to know that there is a problem.

“You can’t refuse unsafe work if you don’t know it is unsafe,” he said.

Some employers are good and some aren’t, but Swan points out that WorkSafe’s own magazine routinely highlights asbestos-related violations.

“You will be amazed at how much asbestos there is,” he said.

He understands WorkSafeBC’s plight over contaminants such as asbestos, lead, mold and heavy metals, and he respects its public relations but wants more enforcement.

“That would take the flight nights out of business,” he said.

But don’t forget to go away

WorkSafeBC has been running its Asbestos Initiative program since 2016, which includes education, outreach, counseling and enforcement. In addition, in 2020 it conducted nearly 3,000 inspections, issued nearly 1,500 asbestos-related orders, of which 959 were potential high-risk violations, and imposed 85 asbestos-related sanctions.

During a round table discussion with Comox Strathcona Waste Management in June, guest speaker Adam Corneil of Unbuilders said that traditional house demolition, although cheap and fast, wastes valuable waste wood and releases hazardous materials like asbestos. His company’s dismantling projects usually get some product recalls to remove more asbestos “as soon as we peel back the layers,” as many have the old material.

“We are still exposing our community and our transfer stations to these contaminants,” he said.

All of this suggests that asbestos is the opposite of the old adage: “Gone but not forgotten”. The fact that some in the industry are realizing the problem is no consolation for Hamilton. Whistleblowing is known to be a risky business. According to Lecker & Associates, a Toronto disability and employment law firm, the situation is darker for people outside of government. A report by the International Bar Association earlier this year ranked 62 countries in terms of whistleblower legislation and found Canada in last place with Lebanon and Norway as each only met one of 20 best practice criteria.

In Hamilton’s situation, he pointed to a serious security risk that would involve some sort of enforcement, if not to the extent hoped for. Now he has found himself in court and is unemployed again.

Forced change?

A WorkSafeBC letter dated June 24 notified Hamilton of his approved rehabilitation plan for a shoulder strain injury, noting that the case manager was finding he could not return to his job as a plumber / gas fitter prior to the injury. Four pages later, the letter states that WorkSafe is developing a plan for him to get a commercial truck driver’s license, although he would not be suitable for jobs that require him to load and unload cargo by hand. It continues that Hamilton cannot go back to his old career beyond the shoulder injury because he has an adjustment disorder. It cites his “long history of challenging interpersonal interactions” and adds that he is likely to do better in jobs where he can be independent, autonomous and “do not need to show significant empathy for others”.

On the one hand, Hamilton has a report in which he cites his sense of right and wrong; in the other, he has a letter suggesting that he lacks empathy. In his experience, changing jobs would mean a drop in income.

“You’re threatening to cut me off,” he said.

Aside from the letter’s remarks on empathy, Hamilton found guidance in his struggles through words. He talks about the author Henry David Thoreau and his writings on civil disobedience.

“He was very inspiring,” he says.

Hamilton even makes a rift about becoming a safety inspector, admitting he applied to WorkSafeBC to no avail. As a whistleblower, if hesitant, he would be content with exercising his rights, enforcing more asbestos safety and getting the authorities to accept the extent of his psychiatric condition.

“I know I’ll bump my head against a wall,” he said.

RELATED STORY: WorkSafeBC urges the construction industry to protect their workers

David Ian Hamilton in his backyard in Cumberland. Photo by Mike Chouinard

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