Decades-long arsenic workers comp fight comes to unsuccessful end

A former Giant Mine Worker’s nearly three-decade attempt to get compensation for health problems he alleged stemmed from arsenic exposure came to an unsuccessful conclusion last month.

In 1988, Petersen was exposed to 'a slurry of toxins, including arsenic' at Yellowknife's Giant Mine

In 1988 Petersen, was exposed to "a slurry of toxins, including arsenic and cyanide" while cleaning up a tailings pond spill at Giant Mine without protective footwear or clothing. (CP PHOTO/Chuck Stoody)

A former Giant Mine Worker's nearly three-decade attempt to get compensation for health problems he alleged stemmed from arsenic exposure, came to an unsuccessful conclusion last month.

In late November, the NWT Court of Appeal rejected a lower court's decision that had given Stephen Petersen a lifeline in his 28-year battle of appeals and counter appeals: the ability to ask for a judicial review of a Workers Safety and Compensation Commission decision.

The court's reason? Petersen had taken far too long to file his request.

"In these circumstances, the public interest in the finality of administrative decision making is paramount," wrote the three-judge panel, made up of Justices Marina Paperny, Leigh Gower and Sheilah Martin.

Exposed to a 'slurry  of toxins'

In 1988 Petersen was exposed to "a slurry of toxins, including arsenic and cyanide," while cleaning up a tailings pond spill at Giant Mine without protective footwear or clothing.

He claimed he began experiencing a number of mobility and urination problems shortly after the exposure, and was diagnosed with a neurological disorder called transverse myelitis — an inflammation of the spinal cord — after being medevaced to Edmonton.

That year, he filed a compensation claim with the then-Workers' Compensation Board, which was denied.

What followed was years of appeals, by both sides, culminating in the WSCC's appeals tribunal shooting down the case in 1997, citing lack of evidence linking Petersen's medical conditions to the tailings pond exposure.

Delay unexplained

The case lay dormant until 2011, when Petersen tried to revive it with a new report from Occupational Health Clinics of Ontario Workers Inc., that he said backed up his medical arguments. 

The request to rehear the case was once again denied by the WSCC's appeal's tribunal. And in 2015, Petersen applied for a judicial review of that 2011 decision.

It was this request for a judicial appeal which was effectively killed late this year.

The appeals court decided, in favour of WSCC and against a lower court judge, that Petersen's three-and-a-half year filing delay was unjustified.

Petersen's argument that he "was not able, physically or psychologically, to undertake this challenge before [2015]," was rejected by the judges.

"Although Mr. Petersen provided some information about his present physical ailments, he failed to explain how these prevented him from pursuing an application for judicial review until September 2015," the appeals court judges wrote.