For two decades, a workers’ compensation board policy made it impossible for Ontario miners exposed to aluminum dust to make claims for neurological disorders because the science did not support a connection between the two.

Now, documents obtained through a freedom of information request show the board ordered a review of the topic and created a so-called “negative entitlement” policy after an independent workers’ compensation tribunal ruled in favour of an aluminum-exposed electrical worker’s neurotoxic disability claim.

The board’s ensuing protocol, instituted months later in 1997, closed the door on further claims of the same nature even though existing research was in fact inconclusive.

“There was nothing definitive one way or the other. It was kind of left as a big question mark,” said Dr. Abraham Reinhartz of the evidence at the time. Reinhartz is a physician in the department of family and community medicine at Humber River Hospital who also studied aluminum exposure in aircraft manufacturing workers.

“There are many disorders out there that we think are related to occupational exposures but scientific evidence might not be fully there yet, and yet you don’t see the Workplace Safety and Insurance Board establishing automatic policies shutting down workers’ entitlement,” said Janice Martell, who filed the freedom of information request and is the daughter of an Elliot Lake miner who developed Parkinson’s disease.

“The WSIB has been around for 104 years and this is the only negative policy they’ve ever developed.”

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In human experiment, Ontario miners say they paid devastating price

Some 27,000 gold and uranium miners in northern Ontario were routinely blasted with McIntyre Powder, an aluminum-based prophylaxis sold as an apparent antidote to lung disease. It was designed, historical documents suggest, by industry-sponsored Canadian scientists bent on slashing compensation costs in gold and uranium mines across the north — with no testing for potential negative health impacts on humans.

Martell’s father, Jim Hobbs, died in 2017 without receiving compensation for his degenerative disease. The WSIB revoked its aluminum policy that same year, paving the way for future claims. The board will not reopen past cases.

“We have the same questions as many miners and their families and want to help find answers based on scientific evidence,” said WSIB spokesperson Christine Arnott, adding that the board’s decisions on McIntyre Powder claims are now being made on the most current available research.

“Unfortunately, today there is no conclusive scientific evidence linking McIntyre Powder to neurological diseases. But questions remain, which is why we have engaged researchers from the Occupational Cancer Research Centre (OCRC) to look at the use of McIntyre Powder in Ontario mines and if there is evidence of a connection to neurological conditions in miners exposed to it,” Arnott said.

“We expect the OCRC research will be an important addition to the existing science on this subject and we are hopeful it will help provide clear answers for everyone.”

Recent research conducted in the United Kingdom found “strong evidence” linking aluminum to Alzheimer’s disease when absorbed into the bloodstream.

“Every time one of my miners dies, I feel like I’m letting them down,” said Martell, who now maintains a registry of miners exposed to McIntyre Powder. Of the 480 names so far, 91 have diagnosed neurological conditions and 56 have symptoms but no diagnosis.

“I feel like everything I’m doing isn’t enough. It’s not soon enough. They keep dying without answers, without seeing justice.”

Martell’s Toronto-based lawyer Antony Singleton said the board’s 20-year aluminum policy was a “totally unwarranted deviation from a fundamental principle of workers’ compensation law, namely that each worker’s claim is adjudicated on the basis of the ‘merits and justice’ of their individual case.”

“Once the policy was in force, any worker with a neurological disease or disability who was exposed to aluminum powder was denied the opportunity to have a claim for benefits considered on its own merits.”

In its 1996 ruling in favour of an aluminum-exposed electrical worker, the body then known as the Workers’ Compensation Appeals Tribunal, accepted the “highly persuasive” opinion of Dr. D. McLachlan, a professor emeritus at the University of Toronto’s faculty of medicine, a staff neurologist at Toronto Hospital, and the former director of the Centre for Research on Neurodegenerative Disease.

McLachlan, who treated the electrical worker for five years, said his “neurotoxic disability” was “acquired during workplace exposure to aluminum.”

“To put the conclusion simply: the evidence in favour of the causal link proposed by the worker is highly persuasive; the evidence of any other possible causal factor in the worker’s disability is virtually non-existent,” the tribunal decision reads.

The compensation board’s board of directors subsequently ordered a review of existing scientific evidence. The summaries seen by the Star contain numerous inconclusive studies on the subject, including research commissioned by the province’s independent Industrial Disease Standards Panel.

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Two distinct recommendations were presented to the board of directors: one stating neurological impairments “are not occupational diseases since they do not result from occupational exposure to aluminum,” and one stating staff should continue to consider such claims on a case-by-case basis.

The board adopted the first recommendation.

Occupational disease expert and adjunct University of Windsor faculty member Jim Brophy served on the Industrial Disease Standards Panel from 1992 until it was disbanded under Conservative premier Mike Harris in 1996. He participated in the discussions around aluminum exposure and neurological disease.

“We commissioned a study,” Brophy said. “The problem was it wasn’t conclusive because we couldn’t construct the cohort properly. There were people who had developed cognitive problems where their family was upset and wouldn’t participate.”

He says the compensation board could not have based its 1997 aluminum policy on the panel’s findings because “we were saying the opposite. We thought there was enough probability of an association that it really needs to be explored.”

“I can’t think of a parallel example where I know they’ve done this,” he added of the negative entitlement policy.

“It means there is no forum, no process, to bring these issues forward. What it does is it just shuts the door on an issue where there was reasonable grounds to believe that there was harm caused by these practices that the mining industry introduced.”

“It may have retarded further scientific investigation of the neurological effects of occupational aluminum exposure,” added Singleton. “For example, we know that the board’s and the Ministry of Labour’s funding of research on this issue ended when the board issued the policy.”

Last year, the ministry announced $1 million for further research on the topic.

Martell is waiting for more documents to be released through her freedom of information request, which has cost her more than $7,000. Her application for a fee waiver, which can be granted on matters of public health and safety, was denied by the compensation board. Martell paid $1,000 out of her own pocket and crowdfunded the rest.

“I don’t ask for help the best I can. I wrestled with the idea and I thought, if I do nothing then they win,” she said. “So I swallowed my pride and put a video out there. And within three weeks we had most of the money.”

She also hopes the issue could turn into a class action suit in the future.

“All of these workers were part of this human experiment without their informed consent about what this could do to them. To my mind, this was a complete violation of their human rights,” she said.

“For now, I hold on to the thought that even though these miners died without answers, they died knowing that someone was fighting for them.”