Review

On May 3, 2006, Minister Peters asked me to commence a review of the treatment of firefighter cancer claims by the Workplace Safety and Insurance Board (WSIB or Board).

In particular, the Minister asked that my review provide the following information:

• A review of the process for considering firefighter cancer claims under workers' compensation legislation in other Canadian provinces that have "presumptive legislation".
• An inventory of relevant scientific literature which considers the link between certain cancers and firefighting.
• Feedback from fire sector stakeholders on the treatment of firefighter cancer claims by the Workplace Safety and Insurance Board.

This report and accompanying binders address the three areas requested by Minister Peters along with potential options available for the adjudication of firefighter cancer claims in Ontario.

At the outset, I would like to thank all the stakeholders who provided written submissions or met with me to discuss these issues. The information provided assisted me in understanding the complexities that face firefighters, their families, the WSIB, firefighter associations and employers in dealing with cancer claims.

The Structure of my Review

As outlined above, Minister Peters asked me to report on three main areas. My report has been divided by tabs for easy reference:

Tab 1: Information on Canadian Jurisdictions with Presumptive Legislation

Tab 2: An Inventory of Relevant Scientific Literature

Tab 3: Feedback from Fire Sector Stakeholders

Although each tab provides comprehensive information, I want to highlight important information in this portion of the report.

1. Canadian Jurisdictions with Presumptive Legislation

British Columbia, Alberta, Saskatchewan, Manitoba and Nova Scotia are the five Canadian provinces with presumptive legislation for dealing with firefighter cancer claims under workplace compensation legislation.

At tab 1, the Summary Table for Presumptive Legislation for Firefighters in Canada lists the particular cancers covered by each province's legislation along with the required minimum years of service to qualify.

Each province's legislation is unique in its treatment of the following:

1. the types of cancers covered,
2. whether part-time/volunteer firefighters are included,
3. when the application of the legislation should start (prospective/retrospective); and
4. in qualifying for the rebuttable presumption, whether firefighting must be considered a significant contributing factor or the dominant contributing factor for the onset of the cancer. ^{footnote 1[1]}

Along with the Summary Table, background information has been provided for each province's legislation including the text of the legislation at tab 1.

2. An Inventory of Relevant Scientific Literature

Tab 2 includes an index of the relevant scientific literature. The scientific studies and reports are contained in an accompanying binder entitled, Reports Prepared on Firefighting and Cancer in Canada.

The index contains reports which have been used or commissioned by the WSIB to review any link between particular cancers and firefighting along with reports referenced by the Ontario Professional Fire Fighter Association.

3. Feedback from Fire Sector Stakeholders

Minister Peters asked me to contact fire sector stakeholders to understand the current WSIB process and whether they propose any revisions, including presumptive legislation.

I met with officials from these stakeholders in the following order:

• The Occupational Disease Research and Policy Branch of the WSIB,
• Office of the Fire Marshal (OFM)
• Ontario Association of Fire Chiefs (OAFC)
• Ontario Professional Fire Fighters Association (OPFFA)
• Fire Fighters Association of Ontario (FFAO)
• Association of Municipalities of Ontario (AMO)
• The Research Advisory Council of the WSIB (RAC)

I also received written submissions from the City of Toronto.

Tab 3 of my report provides a summary of the comments provided by the various stakeholders.

A) Area of Consensus: Education and Prevention

All stakeholders agree that health and safety education and preventative measures are necessary to ensure the safety of firefighters.

I am very encouraged that all parties acknowledged a responsibility and are willing to work together to explore further safety initiatives with the assistance of the WSIB, Ministry of Labour and the Office of the Fire Marshal.

Currently, the OPFFA, FFAO and OAFC are working with the WSIB's Firefighter Marketing Committee on developing a poster to inform firefighters on the importance of wearing their Self Contained Breathing Apparatus (SCBA) while not only combating fires but also when performing "overhaul activities" at a fire scene. ^{footnote 2[2]}

Every stakeholder commented on the importance of firefighters wearing SCBA protection and their support for the poster campaign. The willingness of all parties to work together and share information and insight will be crucial to ensuring the safety of firefighters.

I recommend that the Ministry of Labour continue working together with the WSIB, Office of the Fire Marshal and representatives from OPFFA, FFAO, OAFC, AMO and the City of Toronto to explore the development of health and safety education programs and preventative measures for firefighters in such areas as;

• the wearing and proper fitting of SCBAs;
• the benefits of a healthy lifestyle;
• medical screening; and
• the tracking of possible exposure to chemicals at a fire scene through exposure reports.

Some of these topics may be best addressed through the Ministry of Labour's Fire Service Health and Safety Advisory Committee while others may be best addressed under the direction of the WSIB or the Office of the Fire Marshal. The important issue is that these topics be discussed by the stakeholders.

I would also encourage the stakeholders to discuss the possibility of setting up monitoring clinics similar to the one initiated after the Plastimet fire in Hamilton.

B) Lack of Consensus: Practice of Adjudication

Stakeholders are divided on the appropriate approach for adjudicating firefighter cancer claims.

In discussing how firefighter cancer claims are currently processed, four approaches were referenced by stakeholders:

1. Schedule 4 (non-rebuttable presumption)
2. Schedule 3 (rebuttable presumption)
3. Occupational Disease Policy
4. Case-by-Case Adjudication

The WSIB is guided by two documents which are included in the white binder entitled Overview of Regulation, Policy and Scientific Evidence on Firefighting and Cancer in Canada at tab 4.

The two documents are entitled, Final Report of the Chair of the Occupational Disease Advisory Panel and Taking ODAP into the Future. They outline the recommended standards for how scientific evidence should be used to determine occupational disease schedule entries, policy development and adjudicative advice.

Approach 1: Schedule 4

This is a schedule contained in a regulation under the Workplace Safety and Insurance Act (WSIA) for occupational diseases which have a non-rebuttable presumption of work-relatedness.

Schedule 4 is used where there is strong and consistent epidemiological evidence that in virtually every case, the disease occurrence is linked to a single cause and that cause is associated with an occupation, workplace or work process.

In other words, if a worker is in a designated occupation or is involved in a designated process, has the listed disease, and files a WSIB claim, the claim will be automatically allowed due to the high scientific certainty that the disease was linked to the individual's work. For example, mesothelioma due to asbestos exposure.

Approach 2: Schedule 3

This is a second schedule contained in a WSIA regulation. This schedule provides for a rebuttable presumption that the occupational disease is related to the individual's work.

Schedule 3 is used where there is strong and consistent epidemiological evidence supporting a multi-causal association with the disease, with one being occupation.

Unlike a disease listed in Schedule 4, for a disease listed in Schedule 3, the presumption that a disease is work related can be rebutted.

Before allowing a claim for a disease listed under Schedule 3, a WSIB adjudicator must be satisfied of the following: that no non-working factors create the circumstance that, it is more likely that not, the employment was not a significant contributing factor in developing this worker's disease.

Factors that may be relevant in considering whether the presumption is rebutted include:

• a latency period that substantially deviates from the latency period estimated in the scientific literature;
• the amount of time that the worker spent working in the process listed in Column 2 of the Schedule;
• the extent of the exposure while working in the particular process; or
• prolonged and/or intense non-work exposure to substances or processes linked to the disease listed in Column 1 of the Schedule.

If the presumption is rebutted, the claim is not automatically refused. Instead, it is adjudicated based on the merits in case-by-case adjudication (see Approach 4).

Approach 3: Occupational Disease Policy

The WSIB will develop a policy to deal with an occupational disease where there is strong and consistent epidemiological evidence supporting a single or multi-causal association with a disease, with one cause being an occupation. Adopting a policy can be used when Schedule 3 criteria are met but the process cannot be defined ^{footnote 3[3]}. Policies can focus on specific subgroups, levels of exposure and occupational categories.

Approach 4: Case-by-Case Adjudication

Case-by-case adjudication is used when there is inconclusive evidence as to whether an occupation is a definitive or likely cause of a disease.

Under case-by-case adjudication, the adjudicator reviews the facts of the claim and all of the available evidence to decide whether there is/was some exposure or process in the workplace that was a significant contributing factor in the development of the worker's disease. Entitlement is determined on the merits and justice of the claim.

Adjudicative support materials are developed to assist decision-makers with claims made for similar diseases or exposures under certain circumstances.

For example, the WSIB recently developed adjudicative support materials for firefighter colorectal claims after it commissioned the Literature Review and Meta-Analysis on Colorectal Cancer Risk and Firefighting (October 2005). The review is provided at tab 2 in the white binder entitled Overview of Regulation, Policy and Scientific Evidence on Firefighting and Cancer in Canada.

The adjudicative support information is provided at tab 1 in the white binder entitled Overview of Regulation, Policy and Scientific Evidence on Firefighting and Cancer in Canada.

C) Current Adjudicative Approach

With the exception of brain cancer and lymphoid leukemia claims, the WSIB currently adjudicates all firefighter cancer claims by case-by-case adjudication (Approach 4). Brain cancer and lymphoid leukemia claims are adjudicated using an occupational disease policy (Approach 3).

Firefighter associations believe that Ontario should adopt presumptive legislation similar to that present in five other Canadian provinces resulting in firefighter cancer claims being treated under Schedule 3 (Approach 2). This Standard would result in a firefighter whose claim matches the requirement set out in the process section of the Schedule having a rebuttable presumption that his/her cancer was a result of exposure while firefighting.

The treatment of firefighter cancer claims under Schedule 3 would likely shorten the adjudication process by focusing the adjudication strictly on whether there is sufficient evidence that the cancer was caused by factors outside of firefighting: heredity, non- occupational exposure, exposure from another job, etc.

The OAFC and the Office of the Fire Marshal support the position advocated by the OPFFA and FFAO. Conversely, AMO and the City of Toronto support the current regime of adjudicating firefighter cancer claims on a case-by-case basis.

The WSIB continues to review scientific studies published on the possible link between firefighting and certain cancers to determine whether the adjudication process for firefighter cancer claims should be revised from the current case-by-case adjudication.

The Board recently received a report from Dr. Xuguang Tao investigating the links between colorectal cancer and firefighters entitled Overview of Regulation, Policy and Scientific Evidence on Firefighting and Cancer in Canada.

The Board is also currently waiting for a systematic literature review and update of the 2004 Cancer Care Ontario report to the Workers' Compensation Board of British Columbia entitled the Occupation of firefighter and cancer risk: assessment of the literature. The review will focus on recently published literature and proportional mortality studies on fourteen types of cancers regarding their causal link to firefighting ^{footnote 4[4]}. The final report is expected in fall 2006/winter 2007.

D) Stakeholders' Recommendations

In meeting with stakeholders, reviewing the information on presumptive legislation and the scientific literature, it is clear that the issue is complex and impacts several stakeholders.

Stakeholders in favour of presumptive legislation cite the extensive time periods that firefighters and their families face while having a claim adjudicated, the inability for firefighters to refuse unsafe work conditions, the uncertainty of what chemicals they may be exposed to while fighting a fire and a claim that scientific studies support a link between certain types of cancers and firefighting.

Stakeholders in support of the current case-by-case adjudication acknowledge that the system needs to be fair and should recognize firefighters when they become sick due to exposure at work. However, they believe that until scientific evidence is found that meets the test set out by the Occupations Disease Advisory Panel protocol, the case-by-case adjudication process is the most appropriate system.

Municipal stakeholders contend that the current system is fair with many claims being adjudicated in a short period of time. They also assert that many firefighter cancer claims are allowed. WSIB data confirms that since 1999, firefighter cancer claims for brain, bladder, nasal and non-Hodgkin's lymphoma have an over 80% allowance rate with leukemia and kidney at 75% and 71% respectively.

As self-insured employers under the WSIA, the municipal stakeholders raised concerns regarding the potential cost implications of presumptive legislation. I note that an analysis of the cost implications is beyond the scope of the Minister of Labour's mandate to me under this review.

Tab 3 of my report sets out the position of stakeholders on the need for presumptive legislation and also their positions on whether volunteer firefighters should be recognized to the same extent as full-time firefighters.

My report provides a thorough overview. Given the time parameters provided however, additional information or follow up with stakeholders and direct discussions with the five provinces that have presumptive legislation may be helpful in considering whether a change to the current process is required.

E) Other Considerations

Whether or not a revision to the treatment of firefighter claims is undertaken, I believe it is imperative that stakeholders continue to discuss and share information on the adjudication of firefighter cancer claims by the WSIB.

Employer and firefighter association representatives commented that understanding the exact information required by WSIB decision-makers to review a firefighter's claim could lessen the process time of a claim. Although many claims are complex and require extensive time to investigate, exploring ways of improving communication between the WSIB, firefighters, their associations, fire chiefs and municipalities should assist in limiting the processing time by providing WSIB decision-makers with required information as soon as possible after a claim is filed.

I encourage the parties to confirm their dedication and commitment to ensuring health and safety education and preventative measures are developed for firefighters by continuing to work collaboratively on projects such as the WSIB Firefighter Marketing Committee's SCBA poster. All parties agree that through prevention and health and safety education, the best outcome is for no firefighter to suffer from an occupational disease.

Therefore, it is my recommendation that whether or not a decision is made to create presumptive legislation, a detailed health and safety education, preventative plan and monitoring strategy be developed with participation by all stakeholders including the WSIB, MOL and the Office of the Fire Marshal.

I submit this report to Minister Peters and await his direction on whether he wishes me to take further action on this matter.

Sincerely,

“Mario Racco”

Mario G. Racco M.P.P.
Parliamentary Assistant to the Minister of Labour