Part 5: Relevant practices in other jurisdictions
As we note in part 2, many workers' compensation systems in Canada and around the world have presumptive lists of occupational diseases that appear either in schedules to the legislation or in supporting regulations. The primary purpose of these schedules is to establish causation for diseases where there is sufficient evidence that the disease is specific to a particular exposure, process, or condition of employment. Typically, their goal is to streamline the adjudicative process by avoiding the repeated effort of producing and analyzing medical and other evidence of work-relatedness for each individual case.
Although the specific content of these presumptive lists is a policy choice made by individual jurisdictions, many are modelled on the List of Occupational Diseases published by the International Labour Organization (ILO)
cancers caused by other agents at work not mentioned in the preceding items where a direct link is established scientifically, or determined by methods appropriate to national conditions and practice, between the exposure to these agents arising from work activities and the cancer(s) contracted by the worker (39). A footnote to the table states:
In the application of this list the degree and type of exposure and the work or occupation involving a particular risk of exposure should be taken into account when appropriate (39).
Table 6: Carcinogens included on the ILO's List of Occupational Diseases (revised 2010)
- Arsenic and its compounds
- Benzidine and its salts
- Beryllium and its compounds
- Bis-chloromethyl ether (BCME)
- Cadmium and its compounds
- Chromium VI compounds
- Coal tars, coal tar pitches or soots
- Coke oven emissions
- Ethylene oxide
- Hepatitis B virus (HBV) and hepatitis C virus (HCV)
- Ionizing radiations
- Nickel compounds
- Tar, pitch, bitumen, mineral oil, anthracene, or the compounds, products or residues of these substances
- Toxic nitro- and amino-derivatives of benzene or its homologues
- Vinyl chloride
- Wood dust
Other Canadian provinces
Six jurisdictions in Canada have presumptive schedules for occupational diseases (British Columbia, Alberta, Ontario, Quebec, Newfoundland, and Nova Scotia). The presumption of work-relatedness in all of these jurisdictions, except Quebec, is rebuttable. Newfoundland
any work involving exposure to asbestos fibre, whereas the presumption in British Columbia addresses six different exposures/working conditions. No jurisdiction in Canada represents a best practice in the use of presumptions, when compared to international jurisdictions.
Selected international jurisdictions
In the United Kingdom, occupational cancers are compensated under the Industrial Injuries Scheme. Under the law, benefits are payable to workers who are suffering from a prescribed cancer that is listed in the Prescribed Diseases Regulations
Most countries in the European Union recognize occupational diseases in two ways: either via a national presumptive list or via a
complementary system in which proof of the causal link between the disease and the occupational activity is provided on a case-by-case basis (17).
- In France, occupational cancers are compensated under the French Social Security Code. Under the law, benefits are payable for diseases that appear on one of the occupational disease tables, as well as for those that don't (
off-tablediseases). For conditions listed in the tables, there is a systematic presumption that if the diseases meet the medical, occupational and administrative requirements set out in the tables, then they are work-related. For
off-tablediseases, entitlement is determined on a case-by-case basis by the regional occupational disease recognition committee. The occupational disease tables are regularly updated by legislative decree to reflect changes in techniques and evolving medical knowledge. Based on a search of the French National Research and Safety Institute for the Prevention of Occupational Accidents and Diseases (INRS) website and a report of the most prevalent occupational cancers compensated in the European Union (17), the following seven cancers are presumed to be work-related in France: mesothelioma, lung cancer, nasal, sino-nasal, leukemia, bladder, skin and liver.
- In Germany, occupational cancers are compensated under Book VII of the German Social Insurance Code. In total, 80 diseases have been formally recognized in law by the German government and are listed in an annex to the Ordinance on Occupational Diseases. Based on a report of the most prevalent occupational cancers compensated in the European Union, the following eight cancers are presumed to be work-related in Germany: mesothelioma, lung cancer, laryngeal, nasal, sino-nasal, leukemia, bladder, and skin (17).
Most jurisdictions in Australia and New Zealand
In the United States, several compensation programs have been established to address the burden of disease in targeted populations that have experienced unique, intensive exposures. Two of particular relevance to this report are the Department of Energy's (DOE) Energy Employees Occupational Illness Compensation Program and the World Trade Center Health Program.
- U.S. Department of Energy (DOE): The Energy Employees Occupational Illness Compensation Program Act (the
EEOICPA) was enacted in 2000 to compensate current and former DOE workers and contractors (or their family members) for occupational diseases related to the production of nuclear weapons and other associated job tasks (41). Under this program, cancer is compensable if it is
at least as likely as notto have been caused by exposure to ionizing radiation during the worker's period of employment at the covered facility (42). Entitlement is determined using the
upper 99% confidence interval of the probability of causationand dose reconstructions performed by the National Institute for Occupational Safety and Health (NIOSH). Presumptions of causation have also been established for Special Exposure Cohort (SEC) classes (43). To qualify for compensation as a member of an SEC class, a covered employee must have at least one of the 22 specified cancers and worked for a specified period of time
footnote 27at one of the SEC work sites. Eligible claimants are compensated without the need for completion of a NIOSH radiation dose reconstruction (43).
- U.S. World Trade Center Health Program (WTC Health Program): This compensation program was formed to address the burden of disease in populations exposed to complex mixtures of chemicals during and following the 9/11 attacks on the World Trade Center (WTC) in New York. Under this program, treatment is provided for a specific list of physical and mental health conditions that have been determined to be caused by exposure to the 9/11 terrorist attacks. The program also covers medically associated health conditions that are caused by the progression or treatment of a covered condition. The WTC Health Program covers over 70 cancers organized into the following categories: blood and lymphoid tissue, digestive system, eye and orbit, female breast, female reproductive organs, head and neck, respiratory system, skin (melanoma and non-melanoma), soft tissue, thyroid, urinary system, mesothelioma, and rare cancers
footnote 28. To be eligible for coverage, the cancers must meet minimum latency periods shown in Table 7 (44).
|Minimum latency requirement
|direct observation after exposure to mixed forms of asbestos
|All solid cancers (other than mesothelioma, lymphoproliferative, and thyroid cancers)
|low estimates used for lifetime risk modeling of low-level ionizing radiation studies
|Lymphoproliferative and hematopoietic cancers (including all types of leukemia and lymphoma)
|0.4 years (equivalent to 146 days)
|low estimates used for lifetime risk modeling of low-level ionizing radiation studies
|low estimates used for lifetime risk modeling of low-level ionizing radiation studies
Note: this table does not include the WTC's minimum latency requirements for childhood cancers
To derive these minimum latency estimates, the Program's Administrator used the four methods listed below, in order of the best available scientific evidence (as judged by the Administrator).
- Studies with direct observation of latencies: This approach considered studies that had been conducted on carcinogenic agents found to be present in the aftermath of 9/11. The population studied must have been large enough to develop a reasonable estimate of the lower bound of the distribution of latencies. This lower bound is the minimum latency estimate.
- Authoritative Recommendations: When estimates of minimum latency were not available from studies with direct observation of latencies, the Administrator reviewed recommendations on minimum latency from authoritative bodies (e.g., the National Academy of Sciences), where available, and selected the shortest latency period.
- Studies reporting observed latencies for a cancer from another carcinogen: This approach considered studies conducted on other carcinogens but gave preference to the findings of studies examining latency in those that were chemically analogous to a 9/11 carcinogen. As with Method 1, the population studied must have been large enough to develop a reasonable estimate of the lower bound of the distribution of latencies. This lower bound is the minimum latency estimate.
- Statistical Modeling: When estimates of minimum latency were not available from studies with direct observations of minimum latencies [Methods 1 and 3] or from authoritative recommendations [Method 2], the Administrator looked to estimates of the minimum latency periods used in statistical modelling and published in the scientific literature. Sources of latency estimates obtained from statistical models included epidemiologic studies in which exposure is
footnote 29and estimates of the lifetime risk of low-level ionizing radiation-related cancers from other studies (45, 46). If Method 4 yields multiple estimates of minimum latency, the Administrator's policy is to resolve any uncertainties inherent in this method in favor of the worker by selecting the shortest latency period.
The strength of the available scientific evidence for estimates of minimum latency for each type of cancer or category of cancer was evaluated and minimum latencies were selected based on that evaluation (44). More detailed information on the basis for selecting the minimum latency periods for each of the agents is available in the White Paper on Minimum Latency & Types or Categories of Cancer, which is available on the policies and procedures page of the WTC Health Program's website.
Science-informed policy development
As noted elsewhere in this report, a detailed analysis of the policy and legal context for compensating occupational cancers was outside the scope of this review. Therefore, we did not attempt to review the science underpinning the presumptions or the policies in Ontario or in other jurisdictions, nor did we examine the degree to which science informs policy development. However, there is a specific policy in British Columbia for a large, high-risk workplace that we believe warrants acknowledgement as an example of how research findings and exposure measurement data can be used to develop guidelines for adjudicating occupational cancer claims.
In developing Policy Item 30.10, which sets out guidelines for adjudicating claims for bladder cancer in aluminum smelter workers
Scientific advisory panels
In jurisdictions around the world, scientific advisory panels have been created to provide independent advice for the ongoing – and timely – updating of national presumptive lists, as well as to inform the development and optimization of policies and processes about causation/work-relatedness.
The Industrial Injuries Advisory Council (IIAC) is an independent scientific body, which was established in 1948. Its legislated mandate
U.S. Department of Labor (DOL): The Office of Workers' Compensation Programs (OWCP) in the DOL, which administers the EEOICPA, is supported by two scientific advisory boards (47):
- Advisory Board on Toxic Substances and Health (ABTSH): The ABTSH (which is a board composed of representatives from the scientific, medical, and claimant communities) provides advice to the secretary of Labor on: site exposure matrices (SEM), weighing medical evidence, evidentiary requirements for certain lung diseases, and reports from expert industrial hygienists and consulting physicians (47) (Figure 8). Research/working committees have also been established to develop and update complex databases and models for use in establishing causal links between workplace exposures and associated health outcomes, including the SEM
footnote 34for exposure to toxic substances (48) and radiation risk models that address the cancer-exposure pairs that are most relevant to claims from workers covered by the EEOICPA.
- Advisory Board on Radiation and Worker Health: This Advisory Board (which includes a balance of perspectives from scientists, physicians and workers) provides advice to the secretary of the Department of Health and Human Services on the development of final rules on methods used for completing radiation dose reconstructions, guidelines used to assess the likelihood that an employee's cancer was caused by their work at a DOE or
Atomic Weapons Employersfacility, and procedures for adding additional classes of employees to the Special Exposure Cohort (SEC) footnote 35; the scientific validity and quality of dose reconstruction efforts performed by NIOSH; and whether there is a class of employees who should be added to the SEC.
Figure 8: The DOE's Advisory Board on Toxic Substances and Worker Health
- Office of Workers' Compenstation Programs - Division of Energy Employees Occupational Illiness Compenstation (DEEOIC)
- Advisory Board on Toxic Substances and Worker Health (EEOICPA Part E)
- Subcommittee on the SEM (Site Exposure Matrices)
- Subcommittee on Medical Advice (Weighing medical evidence)
- Subcommittee on Industrial Hygienists and Contract Medical Consultants (and their reports)
- Subcommittee on Evidentiary Requirements for Part B Lung Conditions
- Working group on presumptions
Source: Government Accountability Office Report on Energy Employees Compensation (2018).
US World Trade Center Health Program (WTC Health Program): The work of this compensation program is supported and informed by a Scientific and Technical Advisory Committee (STAC), which is composed of WTC responders and WTC survivors as well as a variety of scientific and medical professionals from various backgrounds
Internal and partnered scientific capacity
Partnership for Work, Health and Safety (PWHS, British Columbia): The primary objective of this research partnership, which brings together policymakers, researchers and data resources from national and international organizations, is to address current and emerging issues of work-related health in British Columbia and Canada. The PWHS evolved out of research originally performed in 1998 by researchers at the UBC Centre for Health Services and Policy Research in support of the Royal Commission on Workers' Compensation in BC. A formal partnership between WorkSafeBC and the School of Population and Public Health at UBC was subsequently established in 2005, not long after WorkSafeBC began contributing data to BC's provincially based repository of linked administrative data (Population Data BC).
The PWHS conducts research that falls into four broad categories: policy and program evaluation, determinants of work injury and illness, injury and disease surveillance, and data development. One area of research conducted in the injury and disease surveillance program is of particular relevance to this review.
Mesothelioma awareness and compensation: Based on research showing that less than half of individuals with mesothelioma listed in the BC Cancer Registry had filed a workers' compensation claim, researchers at the PWHS worked with the BC Cancer Agency and WorkSafeBC on an awareness campaign, in which letters were sent to all physicians of newly diagnosed mesothelioma patients. The campaign, which began in November 2004, increased compensation rates by 10% for those patients whose physicians received a letter in the years 2004 to 2006. However, ongoing surveillance of mesothelioma cases has shown that since 2006, the intervention effect of the letter has declined. As a result, the PWHS continues to work with the BC Cancer Agency and WorkSafeBC to refine and improve this notification system. The researchers also found that mesothelioma patients and their families rely heavily on physicians as trusted sources of information for both medical and compensation-related issues and that they perceive the process for filing a compensation claim to be a complicated and uncertain bureaucratic procedure. A random sample of physicians surveyed reported that they were unfamiliar with the workers' compensation system, that helping mesothelioma patients seek compensation is time consuming, and that the compensation process is a barrier for their patients (50-52).
Institut de recherche Robert-Sauvé en santé et en sécurité du travail (IRSST, Québec): The IRSST, established in 1980, is a bridge between the public sector health and safety networks in Québec and the research community. Its mission is threefold: to contribute to the prevention of industrial accidents and occupational diseases and to the rehabilitation of affected workers through high quality research, to disseminate knowledge and serve as a scientific reference centre and expert, and to provide services and expertise required to support the public occupational health and safety network. The IRSST's research priorities are informed through formal and periodic knowledge exchange with its key stakeholders, which include the senior management of the Commission de la santé et de la sécurité du travail (CNESST), the joint sector-based associations, the Ministère de la santé et des services sociaux and its network, and both employer and union associations. The IRSST conducts and finances research that meets the needs of CNESST and other partners, including analyses that help to detect high-risk populations or industrial activity sectors.
Safety & Health Assessment & Research for Prevention (SHARP, Washington State, U.S.): The SHARP Program, created in 1990, is an occupational safety and health research program located within the Washington State Department of Labor and Industries (L&I)
Institute for Safety, Compensation and Recovery Research (ISCRR, Australia): The primary role of the Institute for Safety Compensation and Recovery Research (ISCRR) is to facilitate research and best practice in the areas of injury prevention, rehabilitation and compensation. It was established in 2009 as a partnership between three institutions: Monash University, WorkSafe Victoria and the Transport Accident Commission. ISCRR's
fit for purpose research agenda is informed by the issues faced by and the needs of its partners. It has internal capacity to conduct a range of research, including systematic evidence reviews to answer specific research questions, environmental scans to identify current and emerging trends and innovations, rapid scans of research evidence and leading industry practice to inform strategic decision-making on new and emerging topics, program evaluations, data analysis and linkage of large datasets to generate talilored insights for decision making, and early identification and assessment of the effectiveness of innovative technologies that are 1 to 3 years from market.
Methods used to improve the assessment of exposure
Canadian Workplace Exposure Database (CWED): The CWED is a national Canadian resource for occupational health research and policy development that was originally developed in 2008 by CAREX Canada to assist in estimating worker exposures to carcinogens across the country (53). The CWED was also used in the OCRC’s Burden of Occupational Cancer Project (10). CWED contains data from 6 jurisdictions in 5 provinces, as well as data from Labour Canada, spanning 62 years. At present, it holds 478,640 observations, of which approximately 303,000 are from Ontario workplaces. Although the CWED is novel in Canada, it is similar to other large-scale exposure databases developed by governments and organizations in Europe (54-56) and the United States (57, 58).
National Dose Registry (NDR): The NDR is the repository of dose records for Canadian workers who are monitored for occupational exposures to ionizing radiation (59). The function of the NDR is to assist regulatory authorities by notifying them of overexposures within their jurisdiction, evaluate dose trends and statistics, contribute to health research and advance scientific knowledge on the risks of exposure to ionizing radiation, and provide dose histories to individual workers and organizations for work planning, workers' compensation and legal cases (60). Operated by Health Canada, the NDR contains records on approximately 1 million workers exposed to ionizing radiation in workplaces since the 1940's. It is currently collecting data on the exposure of close to 170,000 workers with present-day exposure. Key variables contained in the NDR include worker name and identifying information, employer name and address, and personal dosimetry measurements.
GE Exposure Matrix (UNIFOR): Large complex workplaces such as GE Peterborough create special challenges for reconstructing historical exposures. UNIFOR contracted the services of the consultants Robert and Dale DeMatteo to construct an exposure matrix to assist with the compensation claims of their members. Their report used a combination of historical documents and interviews to identify exposures by department and time period in a manner that would be useful for claims adjudication (61).
National Institute for Occupational Health and Safety (NIOSH, U.S.): Researchers from NIOSH have conducted a national survey of how workers’ compensation insurers collect, store and use exposure data (62, 63). They have developed recommendations for standardizing hygiene data collection forms used by workers' compensation insurers to improve usability of existing data and identified ways researchers can help improve data collection strategies. A division within NIOSH (the Division of Compensation Analysis and Support or DCAS) supports the Department of Health and Human Services in its role in the management and implementation of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA, described above in the section entitled Presumptive lists). DCAS is primarily responsible for reconstructing the radiation dose for certain workers with cancer who file claims under Part B
Occupational Safety and Health Administration (OSHA, U.S.): The Integrated Management Information System (IMIS) was designed as an in-house information resource for OSHA staff and managers and by state agencies which carry out federally-approved OSHA programs. Updated daily, it contains information on over 3 million inspections conducted since 1972 to verify compliance with OSHA's Permissible Exposure Limits (PELs). OSHA's website has a searchable interface that allows users to search IMIS, to track OSHA interventions at particular work sites or to perform statistical analyses of OSHA enforcement activity (64). Many of the occupational hygiene samples taken by OSHA compliance officers when monitoring worker exposures to chemical hazards are submitted to the Salt Lake Technical Center (SLTC) for analysis. In 2010, OSHA made all OSHA measurements analysed by the SLTC since 1984 available online. The sampling results, which can be found on the SLTC's website under the title of 'Chemical Exposure Health Data', include data on personal
- footnote Back to paragraph Jurisdictions in Europe, Asia, and Africa have adopted presumptive lists based on the ILO's List of Occupational Diseases.
- footnote Back to paragraph Approved by the ILO's Governing Body at its 307th Session in March 2010
- footnote Back to paragraph The criteria for incorporating diseases on the list were: they occur in connection with a specific work environment and/or in specific occupations; they occur among the groups of workers concerned with a frequency which exceeds the average incidence within the rest of the population; and there is scientific evidence of a clearly defined pattern of disease following exposure and plausibility of cause.
- footnote Back to paragraph Section 90(3.1) of the Workplace Health, Safety and Compensation Act provides a non-rebuttable presumption for asbestosis and employment in a process involving asbestos.
- footnote Back to paragraph In some jurisdictions, including Alberta which does not recognize occupational cancers in the list of presumptions provided in Alberta Regulation 325/2002, radiation injury or disease due to ionizing radiation is presumed to be work-related where there is significant occupational exposure to ionizing radiation. Since cancer is one of the diseases known to be caused by exposure to ionizing radiation, it could be argued that cancer is implicitly recognized by the regulation.
- footnote Back to paragraph It could be argued that Quebec provides presumptions for 3 cancers as Schedule I (section 29) of the Act respecting industrial accidents and occupational disease includes disease caused by ionizing radiations for workers who perform any work involving exposure to ionizing radiations.
- footnote Back to paragraph There is no entitlement to benefit in respect of a disease if it is not listed in the Regulations, or if the person's job is not listed against the particular disease.
- footnote Back to paragraph For prescribed diseases where the presumption does not apply, the onus is on the claimant to establish, on the balance of probability, that their disease was due to the nature of their employment.
- footnote Back to paragraph In 2013, Safe Work Australia commissioned a review of the latest scientific evidence on the causal link between diseases and occupational exposures. The goal was to develop an up-to-date Deemed Diseases List that could be used by Australian jurisdictions considering a revision to the deemed diseases list in their workers' compensation legislation. The review, which was published in 2015, was undertaken by Dr. Tim Driscoll, an independent consultant in epidemiology, occupational health and public health, a specialist in occupational medicine and public health medicine, and a Fellow of the Australasian Faculties of Occupational and Environmental Medicine and Public Health Medicine. The full report is available online at: Safe Work Australia.
- footnote Back to paragraph For leukemia, onset must have occurred at least two years after initial exposure at any covered facility during a covered time period. No time periods specified for primary or secondary lung, bone or renal cancers. For all others, onset must have been at least five years after initial exposure at any covered facility during a covered time period.
- footnote Back to paragraph Includes any type of cancer that occurs in less than 15 cases per 100,000 persons per year based on data from 2005-2009. Other types of cancer which meet the definition of a rare cancer may also be considered for certification. Every cancer submitted for certification which is not individually identified on the WTC list is reviewed to assess if it meets the definition of a rare cancer.
- footnote Back to paragraph Statistical models where relatively recent exposures, generally specified in terms of years prior to diagnosis (e.g., 10 or 20 years), are not counted in order to test for a latency period.
- footnote Back to paragraph This policy is found in Chapter 4 of the Rehabilitation Services and Claims Manual, Volume II.
- footnote Back to paragraph The IIAC was established in 1948 under the National Insurance (Industrial Injuries) Act 1946. The Act not only set out terms of reference for the Council, but also contained provisions for the recognition, as well as the attribution of work-relatedness, of prescribed diseases.
- footnote Back to paragraph The Council's role is to advise and make recommendations on prescription, but the final decision on whether to accept and implement a recommendation is made by the secretary of State for Work and Pensions.
- footnote Back to paragraph Includes specialists in occupational medicine, epidemiology, toxicology and the law.
- footnote Back to paragraph The SEM was designed by the Department of Labor to be a repository of information on toxic substances present at Department of Energy (DOE) and Radiation Exposure Compensation Act (RECA) sites covered under Part E of the EEOICPA. Data contained in the SEM is used by claims examiners to assist in the evaluation of causation.
- footnote Back to paragraph As described on the OWCP website, the SEC allows eligible claimants to be compensated without the completion of a NIOSH radiation dose reconstruction or determination of the probability of causation. To qualify for compensation as a member of an SEC class, a covered employee must have at least one of the 22 specified cancers and worked for a specified period of time at one of the SEC work sites.
- footnote Back to paragraph The STAC must include at least: 4 occupational physicians (at least two of whom must have experience treating WTC rescue and recovery workers), 1 physician with expertise in pulmonary medicine, 2 environmental medicine or environmental health specialists, 2 representatives of WTC responders, 2 representatives of certified-eligible WTC survivors, 1 industrial hygienist, 1 toxicologist, 1 epidemiologist, and, at least 1 mental health professional. Other members may be appointed at the discretion of the Administrator of the WTC Health Program.
- footnote Back to paragraph Although located within L&I, SHARP's activities are independent of L&I's Division of Occupational Safety and Health and the workers' compensation insurance division.
- footnote Back to paragraph SHARP has research expertise in economics, epidemiology, ergonomics, industrial hygiene, occupational medicine and nursing, safety, toxicology, and computer systems.
- footnote Back to paragraph Part B provides compensation of $150,000 and medical benefits to workers (or their survivors) for illness caused by exposure to radiation, beryllium, and silica during their employment at DOE, its contractor, or subcontractor facilities.
- footnote Back to paragraph Measures the exposure of the individual who was actually wearing a sampling device.
- footnote Back to paragraph Taken in a fixed location and measures the potential for exposure to airborne contaminants/physical hazards to workers in that area.
- footnote Back to paragraph Taken to verify if certain constituents are present and if so, in what concentration. Bulk samples are used individually or in conjunction with personal or area samples to help interpret the level of worker risk.