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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1268 12
4/17/2015
J. Noble - M. Trudeau - A. Grande

  • Benefit of the doubt
  • Cancer (metastatic tumour)
  • Firefighter
  • Cancer (kidney)

The worker was a firefighter from 1956 to 1980. He died in 1980 of brain cancer but the cancer was metastatic with the primary unknown. The worker's estate appealed a decision of the Appeals Resolution Officer denying entitlement for the cancer. Board Operational Policy Manual, Document No. 23-02-01, on cancers in full-time firefighters, allows entitlement for primary site kidney cancer if there has been 20 years duration of firefighting employment. A Tribunal medical assessor stated that it could not reliably be inferred from the worker's symptoms that he had renal cell carcinoma but he also stated that most people with renal cell carcinoma did not have paraneoplastic syndromes and, so, any symptoms that the worker did or did not have cannot help delineate the primary site of his cancer. The assessor also stated that it cannot be said with certainty where the cancer came from but only what was more or less likely. Cancers that spread to the brain would include breast cancer, lung cancer, melanoma and renal cell carcinoma. Lung cancer would be the most common but that was ruled out in this case. Male breast cancer, melanoma and renal cell carcinoma all are relatively uncommon but of about the same frequency. The assessor stated that, therefore, renal cell carcinoma would be a probability but no more likely that breast cancer or melanoma. There was another medical opinion from a specialist that the source of the cancer was most likely the kidney, considering the pattern of spread, the slow tempo and spread and the lack of progression. The Board's internal medical consultant stated that the information did not allow him to state what cancer was more likely to be the primary cancer. However, the Panel placed less weight on his opinion because there was no indication that he had any special experience or training in oncology. The Panel found the evidence approximately equal in weight. Applying the benefit of doubt in favour of the worker, the Panel concluded that the primary site of the cancer was the kidney. The worker met the requirements of Board policy for entitlement. The appeal was allowed.