The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 24, 2003, at the request of the claimant’s widow. The Panel discussed this appeal on several occasions, the last one being November 5, 2003.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is acceptable.

Background

The worker in this case was a firefighter, who contracted primary cerebral glioblastoma, which led to his untimely death.

He commenced work as a full-time firefighter on February 3, 1986. Prior to this, he had worked as a volunteer firefighter for many years. He stopped working, due to his illness, on November 7, 1995. He died on March 14, 1997.

In August 1997, his widow filed a claim with the Workers Compensation Board (WCB). On November 16, 1999, after a lengthy investigation and consideration of the case, the adjudicator denied the claim. This was based, in part, on the opinion of a WCB internal medicine consultant that no relationship could be determined between the worker’s occupation and his cerebral glioblastoma.

This decision was reconsidered by the Review Office in August 2002. Review Office upheld the adjudicator’s decision. The review officer based his decision on new provisions in The Workers Compensation Act (“the Act”). He determined that the worker did not meet the minimum time requirements necessary for his type of cancer to be presumed to have arisen out of his employment.

That decision was then appealed to The Appeal Commission. For the appeal to be successful, the Appeal Panel would have to determine that the cancer was causally related to the worker’s employment as a firefighter.

Prior to coming to our conclusion, we conducted a thorough review of the claim file, as well as holding a hearing, at which we heard testimony and argument from representatives of the appellant (the claimant’s widow) and the employer. We also invited comment from the president of the claimant’s union. Subsequent to the hearing, we sought further information and comment from the parties to the claim.

Reasons

Chairperson Sargeant and Commissioner Day:

The issue before the panel was whether or not the claim was acceptable. There are two distinct routes by which cancer incurred by a firefighter may be found to be work related. The first – and relatively straight forward – route is the “presumption” provided by recent amendments to the Act. The second is to find that the illness is an “occupational disease”, as provided in both the Act and board policy.

In the case before us, the panel unanimously determined that the claimant did not meet the presumption. The claim was, thus, not acceptable on this basis. However, the majority of the panel found that the claim was acceptable as an occupational disease.

Does the claimant meet the “Firefighter’s Presumption”?

In 2002, the Act was amended, retroactive to January 1, 1992, to include the following:

Presumption re firefighters

4(5.1)  If a worker who is or has been a firefighter suffers an injury that is

(a) a primary site brain cancer;

(b) a primary site bladder cancer;

(c) a primary site kidney cancer;

(d) a primary non-Hodgkins lymphoma; or

(e) a primary leukemia;

the injury shall be presumed to be an occupational disease the dominant cause of which is the employment as a firefighter, unless the contrary is proven.

Application

4(5.2) The presumption in subsection (5.1) applies only to a worker who has been a full-time member of a fire fighting department for a minimum period prescribed by the Lieutenant Governor in Council by regulation and who has been regularly exposed to the hazards of a fire scene, other than a forest-fire scene, throughout that period.

Regulation 124/2002 provides that for brain cancer, the type that the worker had, the minimum period of employment is 10 years.

The Act also provides that the WCB is to conduct research into whether or not the same or a similar presumption should be instituted for part-time firefighters. In the Legislature, the then-Minister noted that there is no existing science showing such a link. For that reason, the 2002 changes did not extend the presumption to part-time firefighters. (We would note that the board recently awarded a research contract to examine this matter.) We include this because the claimant was employed as a part-time firefighter for a number of years prior to becoming a full-time urban firefighter.

In the case before us, the firefighter had been employed full-time for a period of 9 years and 9 months. While it might appear to be insensitive to deny benefits because the firefighter was three months short, we are of the view that the presumptions must be strictly enforced. We are bound, by the statute, to apply the act in our decisions.

We believe that it is in the long-term best interests of all parties – firefighters and their employers – to respect the timeframes as they are set out in regulation.

Accordingly, we would dispose of this appeal on the presumptive basis.

Are we then required to adjudicate the claim under section 4 of the Act?

At the hearing, the question arose as to whether, if we found that the presumption provisions did not apply, were we then to consider this as any other application for compensation. That would mean determining whether or not he had incurred an injury by accident which arose out of and in the course of his employment, as required by section 4(1) of the Act. In this case, subsection 4(4), which addresses the cause of occupational disease, would apply.

At the end of the hearing, we asked both parties to provide us with commentary, which might be in the form of a legal opinion, addressing this question.

Legal counsel, acting on behalf of the claimant, wrote that the “presumption clause does not take away from rights which existed prior to the passing of Bill 5” [the legislative bill which brought in the amendments in respect of firefighters.]

In support of this position, he noted some of the principal elements of statutory interpretation, including the following:

• Justice Dickson, then of the Supreme Court of Canada:

“The correct approach, applicable to statutory interpretation generally, is to construe the legislation with reasonable regard to its objects and purpose and to give it such interpretation as best ensures the attainment of such object and purpose.”[1]

• Section 6 of the Manitoba Interpretation Act:

“Every act and regulation must be interpreted as being remedial and must be given the fair, large and liberal interpretation that best ensures the attainment of its objects.”[2]

• The acceptability of legislative comments:

“Statements made about a statute in the legislature, especially by ministers introducing or defending it, are admissible and may be considered sufficiently reliable to serve as direct or indirect evidence of legislative purpose.”[3]

Counsel also provided excerpts of the speech made by the minister-responsible when she introduced the amendments. Relevant to our consideration is the following:

“The new provisions would assist full-time firefighters in making disease claims with the Workers Compensation Board. None of the amendments precludes any firefighter from filing a WCB claim.”[4]

The claimant’s counsel also noted that the amendments received unanimous consent in the legislature.

The employer’s representative provided us with a very brief opinion expressed in an email by an in-house counsel. It is his opinion that subsection 4(5.1) – the firefighter presumption clause – makes subsection 4(4) superfluous and no longer applicable to firefighters. In his view subsection 4(4) applies to all other employees, but firefighters.

The employer’s representative further elaborated that, in respect of the five cancers covered by subsection 4(5.1), this was the only option for firefighters.

The Appeal Panel is satisfied that the argument put forward by the claimant’s counsel is the correct one. The principles of statutory interpretation require us to pursue the objects and intents of the statute. The minister’s comments provide us with a very clear indication as to the legislature’s intents in respect of these amendments.

From this consideration, we conclude that if the presumption provisions are not met in a specific case, then we must consider the case as any other application for compensation.

Did the claimant suffer a compensable Occupational Disease?

Having found that the worker was not eligible under the presumptive clause, it was incumbent upon us to consider the application as a potential occupational disease. In this respect, the Act makes the following provisions:

Section 1(1) – “occupational disease” means a disease arising out of and in the course of employment and resulting from causes and conditions

a) peculiar to or characteristic of a particular trade or occupation; or

b) peculiar to the particular employment;

but does not include

c) an ordinary disease of life; and

d) stress, other than an acute reaction to a traumatic event;

Section 1(12) – Where an impairment or loss of earnings of a worker is caused by an occupational disease, the day on which the impairment or loss of earnings began, as determined by the board, is deemed to be the day of the accident.

Section 4(4) – Where an injury consists of an occupational disease that is, in the opinion of the board, due in part to the employment of the worker and in part to a cause or causes other than the employment, the board may determine that the injury is the result of an accident arising out of and in the course of employment only where, in its opinion, the employment is the dominant cause of the occupational disease.

Board Policy 44.20, Disease/General, elaborates on these statutory provisions:

“peculiar to or characteristic of a particular trade or occupation”

A disease will be described as being peculiar to or characteristic of a particular trade, work process, or occupation if there is a preponderance of scientific evidence to support a conclusion that the nature of the work processes or environment have significantly increased the likelihood of causing a particular disease in the workers who work in that trade or occupation.

“peculiar to the particular employment”

A disease will be described as being peculiar to the particular employment if:

1. there are factors identifiable in that workplace that are known to cause the disease, or

2. there is scientific evidence acceptable to the WCB that the particular workplace is the cause of a significantly increased risk of the disease even though the cause has not been identified, or

3. a factor can be identified at the workplace as being the proximate cause of the disease.

“dominant cause of the occupational disease”

If the combined effect of the employment causes exceeds the combined effect of the non-employment causes then the work will be deemed to be the dominant cause of the disease.

The legislature has determined that a number of specified cancers, including brain cancer, are occupational diseases of full-time firefighting. The issue then becomes whether or not the cancer arose out of and in the course of employment. If the firefighter has worked the minimum periods, set out in regulation, then it is presumed that it did so arise. Where the minimum period is not met, the evidentiary burden is different.

In considering whether or not this firefighter’s cancer was causally related to his employment, we applied the dominant cause test. The majority concluded that the firefighter’s work was – on a balance of probabilities – the dominant cause of his brain cancer. One panelist did not agree with this conclusion. His dissenting reasons are included below.

In coming to this conclusion, we took particular note of the scientific report which formed the basis for the legislative changes of 2002: “Report to the Workers Compensation Board of Manitoba on the Association Between Selected Cancers and the Occupation of Firefighter”, prepared by Tee L. Guidotti and David F. Goldsmith, 28 March 2002 (hereinafter referred to as the “Guidotti report”).

At the hearing, the employer’s representative presented evidence, which disputed the validity of this report. In particular, he submitted a report prepared by Dr. Otto Wong, Chief Epidemiologist, Applied Health Sciences, Inc., of San Mateo, California. Dr. Wong reviewed the Guidotti report, providing his opinion of many of its findings. His conclusion is that “the scientific evidence for a causal relationship between brain cancer and the occupation of firefighter appears inconsistent and weak.”

It is not necessary for us to determine the science of this issue and whether the Guidotti or the Wong findings are correct. The Manitoba legislature has accepted the findings of the Guidotti report and has adopted legislation based on them. Therefore, it is not open to us to conclude that there is no link between brain cancer and employment as a firefighter. At least in respect of the presumptive provisions, the Guidotti findings are to be followed.

It is the conclusion of the majority in this appeal that the Guidotti findings can inform our decision in an issue such as that before us.

In determining whether or not his employment was the “dominant cause” of his brain cancer, we considered the following:

• He was employed as a full-time firefighter for nine years and nine months, three months short of the presumptive minimum requirement.

• He worked as a part-time voluntary firefighter for about sixteen years, a number of them as chief.

• In respect of the latency periods for brain cancer, the Guidotti report noted:

“On the limited available evidence, therefore, an elapsed period of less than ten years cannot be used to rule out an association in an individual. It is not clear what the minimum latency for brain cancer might be, especially for rapidly growing astrocytoma. It would be reasonable to assume that for aggressive brain cancers, exposure periods plus latencies may be very short, perhaps as short as five years.”

We note that glioblastoma, the type of cancer which this claimant had, is marked by a tumor which contains astrocytes.

The presumption provision in the Act is rebuttable, which means that, if the contrary can be proven, the presumption does not apply. In this case, we were provided with no arguments to the contrary, other than opinions that there should be no link between brain cancer and firefighting. As already noted, it is not open to us to make such a conclusion.

Furthermore, there is no evidence on file, nor was any presented to the Panel, which would identify any other causes or multiple causes which could have contributed to the claimant’s brain cancer.

Conclusion:

As noted above, the test we had to meet is whether or not “the combined effect of the employment causes exceeds the combined effect of the non-employment causes…”

Based on the evidence before us – as summarized above – the majority of the Appeal Panel has concluded that this test was met. In our mind, the effect of the employment causes was considerable; the non-employment causes were negligible, at best.

We conclude that the claimant’s employment as a firefighter is – on a balance of probabilities - the dominant cause of his disease. Accordingly, the appeal is allowed.

Footnotes

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 4th day of December, 2003

Commissioner's Dissent

The process of determining dominant cause by finding a preponderance of scientific evidence to support a particular exposure period means that there is a statistically valid correlation above a particular exposure level, and no statistical validity – no preponderance of scientific evidence– below that exposure period.

In this case, the Guidotti and Goldsmith study and the Regulation established that occupational exposure threshold at 10 years. By definition and by the nature of the scientific review process, an occupational exposure below this 10 year threshold period falls short of the statistical validity necessary to separate it from a disease in the ordinary course of life.

In dealing with the argument that we should accept a different exposure period under the dominant cause test than under the Regulation, I would note that the process of scientific investigation and literature review is effectively the same as would be undertaken for any occupational disease, whether it is done through a statutory amendment or by WCB policy. Regulation 124/2002 defines the presumption of dominant cause under section 4(5.1), to be 10 years, and I find it problematic to suggest that a different exposure period would or should be applied under section 4(4), for the same occupation and for the same type of cancer that was the dealt with in the Regulation.

It is arguable that if new scientific evidence was available to the panel since the Regulation was passed, we could be dealing with a different “preponderance of scientific evidence” under the occupational disease test, than that used to form the basis of the Regulation. This case, however, has been adjudicated in the same time frame as the Regulation, and this panel was not presented with any new scientific literature that would justify a variation from the scientific evidence that established 10 years as being the benchmark. In the absence of any new scientific studies, it is difficult for me to accept the proposition that two different exposure periods can apply to the same case – to do so clearly flies in the face of legislative intent expressed in the Regulation and the due diligence that was undertaken in establishing the necessary threshold exposures that formed the basis of Regulation 124/2000.

The applicants also argue that the worker’s volunteer fire fighting should be added in to the mix, to meet the threshold period of 10 years. I note, however, that the Guidotti and Goldsmith study, the employer’s expert epidemiologist and the Minister responsible for the Workers Compensation Act, as quoted in Hansard, all note that there are at this point no scientific evidence or any studies available in respect of occupational exposures for volunteer fire fighters. These studies presumably would have to examine unique issues such as call frequency, the types of fires and exposures common to rural versus urban settings, years of service and the mortality/morbidities of those populations against the general population, in order to determine which, if any, of the cancers listed in the Regulation for full time firefighters, also demonstrate a statistically valid preponderance of scientific evidence linking them to their occupation.

As well, this panel has received no evidence at all as to the nature, type or quantity of fire scenes or workplace exposures to which this claimant may have been subjected, as a volunteer fire fighter. For these reasons, there is no “preponderance of scientific evidence” or indeed any evidence at all, that would allow me to factor in the worker’s volunteer commitments into the timelines established by Guidotti and Goldsmith, and by the Regulation, for full time firefighters.

For the reasons enunciated above, I cannot find a scientific or evidentiary basis to reduce the necessary occupational exposure to less than ten years; I find that the tests set out in WCB Policy 44.20, Disease/General have not been met, on a balance of probabilities. The preponderance of scientific evidence does not support that the claimant had a sufficient occupational exposure to establish the workplace or work environment as the dominant cause of the development of the diagnosed brain cancer. Accordingly, I would find that the claim is not acceptable, and would dismiss this appeal.

A. Finkel, Commissioner