Highlights of Noteworthy Decisions

Decision 2444 18
R. Nairn - R. Ouellette - S. O'Connor
  • Cancer (colon)
  • Firefighter
  • Presumptions (firefighter)

The worker was a firefighter since 1971. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for colon cancer.

Section 15.1(4) provides a presumption for firefighters who meet the requirements of regulations made under s. 15.1(8)(a) and (d). O. Reg. 253/07, s. 4, provides that primary-site colorectal cancer is a prescribed disease. Section 5 of the regulation states that the presumption in s. 15.1(4) of the WSIA does not apply in respect of primary-site colorectal cancer unless the worker was diagnosed with the disease before age 61 and was employed as a firefighter for at least 10 years before being diagnosed. There is also an applicable Board policy, Operational Policy Manual, Document No. 23-02-01, on cancers in fire fighters and fire investigators.
In this case, the worker had a prescribed cancer and was employed as a firefighter for at least 10 years prior to diagnosis. However, the worker was not diagnosed before age 61; rather, he was diagnosed about 10 months after turning 61.
The date of diagnosis is not defined in the regulation but is defined in the policy as the date of earliest medical documentation that establishes the diagnosis. Given the variables associated with the timing of a formal diagnosis, including how promptly the worker raised concerns with the doctor and the time required for undertaking further procedures in this case, the Panel was satisfied that a broad interpretation should be given to the policy definition of the date of diagnosis. It would be manifestly unfair if the presumption of work-relatedness were not given effect in this case simply because a formal diagnosis of colorectal cancer was not provided until 10 months beyond the worker's 61st birthday even though medical documentation prior to his 61st birthday indicated that the cancer was likely present and led to the further investigation to confirm the diagnosis.
The Vice-Chair applied the statutory presumption and found that it had not been rebutted. The worker had entitlement for the cancer.
The appeal was allowed.