Highlights of Noteworthy Decisions

Decision 1327 18 I2
R. McCutcheon - M. Christie - M. Ferrari
  • Board policies (referral for review)
  • Cancer (breast)
  • Presumptions (firefighter)

This appeal was heard at the Tribunal together with two other appeals which involve similar facts. In each case the worker was a communications/dispatch firefighter who was diagnosed with breast cancer. The Board denied each claim on the basis that the worker's occupational exposure as a communications dispatcher was not likely to have made a significant contribution to the development of the worker's breast cancer.

Amendments to the WSIA in 2014 introduced presumptions of entitlement for various cancers, including breast cancer in firefighters, volunteer firefighters, and fire inspectors. The term "firefighters" is defined by regulation.
The Panel found there is no dispute between the parties that the rebuttable presumption of entitlement applies as a communications/dispatch firefighter is part of the "firefighter" definition contained in the applicable regulation, the worker had the requisite number of years of employment as a firefighter and breast cancer is one of the prescribed cancers. Therefore, the outcome of the appeal turns on the rebuttal of the presumption.
The Panel concluded that it was not appropriate to weigh evidence of work-relatedness in determining whether a presumption of causation is rebutted for occupational disease entitlement. This would be inconsistent with the purpose of presumptions for occupational disease, whether they are set out in the statute, regulation, or Board policy. The presumption itself is meant to replace the complex factual analysis required to establish work-relatedness.
The Panel found that Operational Policy Manual (OPM) Document No. 23-02-01 "Cancers in Firefighters and Fire Investigators" was inconsistent with the WSIA as it lacks provisions to establish a causal connection between workplace exposure and the development of an occupational disease to support the application of a presumption of entitlement. Given the broad definition of "firefighter" which encompasses persons not involved in the processes associated with the causation of disease, namely fire suppression, the term "firefighter" is not a sufficient basis to establish workplace causation.
The Panel noted that it could be argued that the Board policy at issue is consistent with the basic terms of section 15.1 of WSIA and the related firefighter regulation. The Panel found however, that the Board has the authority, through Board policy, to implement the Act and the Regulation in a manner that ensures work-relatedness is reflected in the application of a statutory or regulatory presumption. The Panel provided examples where other Board policies in relation to occupational diseases provide specific occupational exposure requirements.
The Panel noted however that while OPM Document No. 23-02-01 specifically excludes forest or wildland firefighters, the process involved in relation to workplace exposure and firefighters is not described. The Panel found that the implementation of an occupational disease presumption through Board policy ought to include provisions to ensure that the application of the presumption is premised upon a workplace injuring process.
The Panel concluded that the Board policy regarding Cancers in Firefighters and Fire Investigators was unauthorized and inconsistent with the purposes of the Act. In accordance with s. 126(4) of the WSIA, the Panel referred the policy back to the Board for review.