Highlights of Noteworthy Decisions

Decision 1327 18
R. McCutcheon - M. Christie - M. Ferrari
  • Board policies (applicability of Board policy)
  • Death (maintenance of claim by estate)
  • Evidence (epidemiological)
  • Exposure
  • Statutory interpretation (principles of) (legislative intent)
  • Reconsideration (administrative error)
  • Board policies (referral for review) (direction from Board)
  • Cancer (breast)
  • Presumptions (firefighter)
  • Causation (cancer) (breast)

The deceased worker was employed as a communications/dispatch firefighter from 1987 until 2003, when she was diagnosed with breast cancer. The worker passed away in 2014. The ARO denied entitlement and found that the worker did not have the occupational exposure associated with an employment history in firefighting and fire suppression activities. This appeal was heard at the Tribunal together with two other appeals involving similar facts (see Decisions No. 1328/18 and 699/18).

The outcomes of these appeals turned on the interpretation of the presumption under OPM Document No. 23-02-01 "Cancer in Firefighters Policy". This policy had been referred to the Board for review pursuant to subsection 126(4) on the basis that the term "firefighter" was not a sufficient basis to establish workplace causation and was inconsistent with the WSIA. The Board determined that the policy was consistent with and authorized by the WSIA. The Board submitted that Decision No. 1327/18I2 should be reconsidered on the basis that, the extent of the worker's exposures to suppression firefighting should be weighed in the rebuttal analysis in order to find that the presumption of entitlement is rebutted.
The Panel in this decision came to the following conclusions: a) the WSIB's request for a reconsideration was unanimously denied; and, b) the worker's appeal was allowed as the presumption of entitlement applied and had not been rebutted. This was a decision of the Panel majority with one dissenting opinion by the Employer Member, which stated that the worker's entitlement should be denied because the policy should be read to apply to workers involved in fire suppression activities, which the worker was not. This decision also included an Appendix A, which set out the reasons for the denial of a reconsideration request by the appellant for Decision No. 1327/18I2.
The majority of the Panel found that there was no basis to conclude that there was a fundamental error in Decision No. 1327/18I2 with respect to interpretation of the policy. It was stated that it would not be appropriate to weigh evidence of work-relatedness in determining whether a presumption of causation is rebutted for occupational disease entitlement, as this would undermine the purpose of the presumption, which represents a finding of work-relatedness. Instead, the analysis should focus on whether there is evidence of non-work-relatedness causal factors sufficient to outweigh the presumption itself (see Decision No. 2444/18). The majority of the Panel then concluded that the worker was entitled to benefits for breast cancer. The worker's individual risk factors were associated with modest increases in risk that were well below a risk factor of 2.0 (see Decision No. 600/97). It was determined that the presumption that the worker's breast cancer arose out of employment had not been rebutted.